N v O HC Christchurch CIV 2003 409 1730
[2005] NZHC 1258
•14 February 2005
IN THE HIGH COURT OF NEW ZEALAND CIV 2003 409 001730 CHRISTCHURCH REGISTRY
BETWEEN N (THE MOTHER)
Appellant
AND O (THE FATHER)
Respondent
Hearing: 9 February 2005
Counsel: Appellant in person
Respondent in person Mr Hembrow for child
Judgment: In accordance with r 540(4) I direct the Registrar to endorse this judgment with the delivery time of 2.00 p.m. on Monday the 14th day of February 2005.
RESERVED JUDGMENT OF RONALD YOUNG J
[1] This is the appeal from Judge Ellis’ decision to award custody to the respondent father with conditions relating to access. The effect of the order is to allow the father to take the parties’ son “L” (now aged 8 years) back to Croatia to live. The custody order was conditional on a Croatian court making access orders in favour of the appellant in terms specified in that judgment.
[2] The mother’s appeal is based, firstly, on a complaint that there was no “complete clinical assessment of the child” and, secondly, her view that if “L” goes to Croatia she will lose contact with her son. It is no exaggeration to say that the behaviour of the parents of “L” prior to, during and after their separation has contributed to the serious behavioural problems now exhibited by “L” (now aged eight years). The first set of custody proceedings were heard in the Family Court on
14 and 15 July 2003. Custody was given to the father on conditions. The mother later appealed. The appeal was heard on 6 October with judgment on 17 October. A re-hearing was ordered. That re-hearing occurred in the Family Court in 2004 and judgment was given on 17 August 2004. Again the mother appealed and this appeal has now been heard before me. In the meantime “L” has remained in New Zealand for reasons that I will detail later. He has not attended school. He is in limbo. Neither he nor his parents can get on with their lives.
Background
[3] Both the High Court in a previous appellate judgment in this case (HC Christchurch, CIV 2003 409 001730, 17 October 2003) and the Family Court (FC Christchurch, CIV 2003 409 001730, 17 August 2004) have extensively reviewed the history of the parties. This judgment, therefore, should be read together with the judgment of Ellis DCJ and Panckhurst J relating particularly to the history between the parties. My summary of the circumstances is therefore brief.
[4] The mother was born in Sarajevo of Bosnian descent. She is in her late 20s. The father is Croatian and in his mid 40’s. The mother came to New Zealand in the mid 1990s with her child “R”. The father has a previous marriage and an older child from another relationship. The parties married in 1996 in New Zealand but returned to Croatia for “L’s” birth. Both parties have travelled back and forward between New Zealand and Croatia in the intervening years. The parties separated in 2001 when both were living in Croatia. The father has an electronics business in Croatia which necessitates regular overseas travel. In 2002 when the father was away from Croatia on such a trip the mother left New Zealand taking both “L” and “R” with her. She has lived in New Zealand ever since. When she arrived in New Zealand she commenced court proceedings, the history of which I have previously recounted.
[5] Judge Ellis’ decision contains a convenient summary of the custody arrangements “L” has been subject to since his arrival in New Zealand in 2002. He said:
[15]The mother brought an appeal against that decision which was heard on 6 October 2003 leading to the Judgment of the High Court on 17 October 2003.
[16]Since the filing of the mother’s appeal the earlier order of this Court was stayed and L remained primarily in the care of the mother. In September 2003 the Judge who had conducted the earlier hearing made an interim custody order in favour of the father on alternate weekends commencing on 10 October 2003 and for the period from 3.30pm to 7.30pm on each school day when the father was in Christchurch. At all other times L was to be in the interim custody of the mother.
[17]The father was away in Croatia from December 2003 to February 2004. L then returned to school at the beginning of 2004 but his behaviour steadily deteriorated leading to stand-downs in April and June.
[18]Since 15 June, when L was last stood down from school for 3 days, L has remained in the care of his father. L has not returned to school. The mother has during this time been in full time employment. L’s contact with his mother since 15 June has been brief and unstructured.
[19]On 19 March, preparatory to this hearing, a further update of the s29A psychological assessment and report was ordered. That report was made available on 21 June 2004 and recommended that in the short term L be returned to Croatia with his father, maintaining regular contact with his mother.
Family Court Decision
[6] The Family Court Judge in an extensive and a closely reasoned decision used the convenient “checklist” set out in the judgment of Fisher J in D v W [1995] 13 FRNZ 336. Judge Ellis also identified and took into account the observations of Panckhurst J in the first appeal in these proceedings as follows:
[55]The judgment of 15 July was delivered orally and late in the day, at the conclusion of two full hearing days. It must be read in that light. Even so, aspects of it give cause for concern. Four matters are I think of particular relevance.
[56]Firstly, the opening paragraphs of the judgment are to my mind striking. They suggest that the Judge was significantly influenced by what O said to him after he dispensed with the services of counsel and spoke on his own behalf. I think that I have some appreciation of the likely impact of O’s address in the Family Court, having seen and heard him in this court when in an emotionally-charged way he brought his son into the courtroom.
[57]Secondly, there are repeated references throughout the judgment to the wife’s conduct in covertly removing L from Croatia while his father was out of the country. I immediately accept that her conduct was entirely inappropriate. It was, however, the action of a comparatively young woman who saw herself as in a disadvantaged position as a Bosnian/Muslim woman living in Croatia. She fled back to New Zealand, a country with which she had connections and to which her family had gone effectively as refugees. Inexcusable as her conduct was in removing L from his father, there was, I think, a need to assess her actions with reference to their particular context.
[58]In relation to conduct of relevance to L’s welfare, it was also necessary to bring to account the father’s actions in November 2002. The incident at the Croatian Consulate occurred in L’s presence, at a time when the New Zealand Courts were seized of the custody issue and O’s conduct was most reprehensible. Although such conduct was acknowledged, it did not receive similar attention throughout the judgment.
[59]Thirdly and importantly the judgment read as a whole does not I think contain a detailed assessment of the matters which typically influence a custody decision. I found it difficult to appreciate what factors had moved the Judge to the conclusion which he reached. After the history of the parties’ relationship and the review of counsels’ submissions, there are few findings which indicate why the ultimate decision was reached. The Judge did make findings that L undoubtedly experienced difficulty in settling into life in New Zealand and, in relation to the reliability and credibility of the parties, that he had serious reservations concerning aspects of the mother’s evidence, whereas he found the father to be “reliable and honest”.
[60]By contrast to the limited factual and other findings there are a number of references back to the manner in which N removed her son from Croatia behind his father’s back. Then at paragraph [34] of the judgment the Judge described the case as “very finely balanced”. The focus thereafter seems to be upon the conduct of the parties as it may indicate their likely reliability in complying with an access order in favour of the other parent. The mother’s conduct in removing L from Croatia counted against her (but the father’s first steps towards taking L back to Croatia in November 2002 did not). The Judge then explored possible reasons for L’s difficult behaviour in New Zealand and noted that his return to Croatia would remove him from his half sister and extended family, but it was the mother who “put L in that position. She removed him from Croatia”. Finally the Judge made an additional finding that the mother had failed to facilitate e-mail contact between L and his father over the previous several months. He then set out his essential conclusion as to custody. In relation to each of these matters the conduct of O was viewed critically, although the first two factors (L’s behavioural problems in New Zealand and the impact of the loss of contact with his extended family) were not relevant to her likely reliability in facilitating access.
[61]I also find it difficult to discern from the decision how the Judge reached the point where he described the case as finely balanced, such that the probable reliability of each parent in facilitating access became the determining factor in electing between them.
[62]A fourth concern relates to the observations in the judgment concerning L’s wishes. The Judge noted that L consistently expressed a preference to live with his father in Croatia in the s29A reports, and then acknowledged that his view had changed by the time of the Family Court hearing. Understandably he observed that the wishes of a child of this age need to be treated with caution, were liable to change and were susceptible to influence. Nonetheless the fact remains that L expressed a preference to the Judge and the decision does not articulate how that wish was ultimately viewed. Indeed, if anything, greater weight appears to have been given to the earlier expressions of view as contained in the psychologist’s reports, regardless of their age.
[63]When I have regard to these four factors in combination I am driven to the view that the decision reached was principally by way of reaction against the wife’s conduct in removing L from Croatia in the first place. With respect I do not consider that was an appropriate way in which to reach a final decision as to custody.
[7] Judge Ellis began his judgment by identifying the respective positions of the father and mother and then considered (using his headings) the following matters; the Hague Convention issue and parental conduct, care of “L” prior to June 2002, the mother’s circumstances before coming to New Zealand, strength of existing and future bonding, parenting attitudes and abilities, availability for and commitment to quality time with the child, support for continued relationship with the other spouse, security and stability of home environment, availability and suitability of role models, positive or negative effects of either family, provision for physical care and help; material welfare, stimulation and new experiences, educational opportunity, and the wishes of the child.
[8]In his conclusion section the Judge said he considered that:
The best interests of “L” will be served by the making of a custody order in favour of his father that will enable him to take “L” back to Croatia to recommence his schooling and to care for him there. To preserve “L’s” relationship with his mother and extended family in New Zealand such an order will need to be reinforced by the making of an access order in a Court of appropriate jurisdiction in Croatia in favour of the mother.
And at paragraph 184 the Judge said:
I am satisfied that under most of the headings listed above each party is able to make a strong case for being entrusted with “L’s” future care although they present their cases to the Court in such different ways. To that extent I well understand the view expressed by Judge Robinson that the case was ‘very finely balanced’.
And at paragraph 188 the Judge said:
The particular factors which in my view tip the balance in favour of the father are –
- the strength of “L’s” attachment to his father consistent with his gender and stage of development –
- the positive contribution the father has made to “L’s” parenting in Croatia in the past, the determination he has to do so for the future and the extent to which that is mixed up with “L’s” concept of Croatia as ‘home’,
- the abilities and resources he has to provide a good life for “L” in Croatia while also maintaining contact for “L” with his mother and maternal family
- the strong and consistent wishes of “L” himself reflecting his need to resolve for himself the issues of his removal from Croatia and from life with his father
- the evident failure of the arrangements of the past two years in New Zealand to meet “L’s” needs.
[9]And finally dealing with parental attitudes in the future he said:
I do not doubt that both parents love their son and are motivated in their contest with each other by their different views of what is best for him. It is part of their tragedy, and his, that they have allowed those views to obscure their understanding of the damage that was and is being done to him while their contest continues. That contest has to be brought to an end for his sake.
The Court can offer no guarantee that the solution that it offers will produce the result intended, or that is needed by L. Ultimately that will be the responsibility, as it always ha been, of his parents. All the court can say is that, from the options available, the orders made offer the greatest opportunity for them to honour the commitment they have given to each other and to the court on their oath to ensure that L does enjoy for the future the best that they both have to offer him.
[10]As to the form of the orders, the Judge said:
It is an integral part of that decision that the making of the custody order in favour of the father is conditional upon his taking the necessary steps to obtain in Croatia an access order in favour of the mother in the terms indicated. He has given evidence that he is willing and able to do so, and I
have relied on that in coming to my decision in his favour. It will follow that the existing orders of this court will continue in force until that condition has been met, but will then forthwith be discharged.
[11] The orders themselves appear as an annexure to the judgment and run to some four pages. Those orders are also annexed to this judgment. Unfortunately, the orders have not been given effect to, because the mirror order in the Croatian courts cannot be made until this appeal is resolved.
[12] I have received a memorandum from counsel for “L” recounting a brief history and providing an update. The memorandum advises that after the Family Court decision of August 2004 the father returned to Croatia for a period to try and obtain the mirror orders in the Croatian courts. At that time the mother had care of “L”. There was a distressing incident with “L” at school and when the mother took the child to a doctor it was decided in turn that “L” should see a psychiatrist. After a brief consultation, the psychiatrist suggested a tentative diagnosis of ADHD – Conductive Syndrome. The investigation of this tentative diagnosis was never completed because the father had by now returned from Croatia and refused to take “L” to see the Christchurch psychiatrist. He did, however, take “L” to see a psychiatrist in Auckland. That psychiatrist has not been able to express any opinion as to the diagnosis. Such a diagnosis of course could only be contemplated after a skilled practitioner had ample opportunity to talk with those who have had regular contact with “L” including the school authorities, his parents and wider family. I note from my discussions on this appeal with the father, that he remains sceptical of any such diagnosis. He believes that the mother has raised the possibility of such a diagnosis as an attempt to delay “L’s” departure from New Zealand and as a way of having the custody case revisited.
[13] Mr Hembrow, counsel for “L” reports that this tentative diagnosis has been passed on to Dr Roxie Orr who completed the s 29A report. Mr Hembrow reporting Dr Orr’s reaction said as follows:
I conveyed the above to the s29A report writer Dr Roxie Orr and asked her that if in fact the child was suffering from the suggested conditions would it make any difference to her recommendation that “L” should be in his father’s custody and should return to Croatia. She said no it made no difference to her assessment of the situation. She would not be surprised with such a diagnosis. She told me that in her view the trauma that “L” had
experienced over the last few years by the constant fighting for him by his parents could well have led to that condition or exacerbated it. However, she felt the trauma was underlying the condition and that the trauma still needed to be treated by “L’s” return to Croatia sooner rather than later.
Appellant’s case
[14]I now turn to the mother’s appeal.
[15] The first ground of appeal was that as a result of inquiries about “L’s” difficult behaviour at school a psychiatrist tentatively diagnosed “L” with ADHD. The father, as I have said, initially resisted further investigation but then took the child to a psychiatrist in Auckland. It was not then possible, for reasons which I have recounted, to obtain any report or diagnosis. The mother says that as an essential first step this Court should order such a report and accordingly delay the final resolution of the appeal until then. She submits that if custody of “L” is given to the father then no diagnosis of “L” will be undertaken and “L” will have few boundaries in Croatia with the father. She believes that if she has custody of “L” and for a period the father’s access is denied, then with structure and guidance she can minimise “L’s” ADHD if it exists and his behavioural problems. She does not accept that the father will obtain any diagnosis of or treatment of “L” if he returns to Croatia with him.
[16] To consider this submission and give it some perspective, it is helpful to consider previous interviews and reports on “L”. I record immediately that all of those who have had contact with “L” (and have no interest in the outcome of these proceedings) consider that he has serious behavioural problems. As always with such conduct, the exact cause is not clear. There have been reports from schools that “L” has attended describing serious physical and verbally aggressive behaviour by him. Dr Roxie Orr has prepared a number of reports commencing in October 2002 with a most recent update in 2004. She has described “L’s” behaviour in detail. “L’s” reported aggressive comments and actions towards his mother, his half sister and extended family are of serious concern. In her 2002 report Dr Orr said:
Despite being caught and feeling helpless and angry in the midst of conflict between his parents, L is able to present as a likeable child with a good personality. This attests to his parents’ strengths in raising him, prior to this
difficult situation. He has however become disturbed in his thoughts and behaviours, and his verbal and physical aggressive behaviours are causing considerable concern for people involved in his life. They are likely to be his way of coping with an intensely difficult situation and both the situation and his behaviours need to be attended to. While L is attached to both parents, he holds a lot of anger and resentment towards his mother. He seeks out his father’s care and company.
L is very clear that he wishes to return to live in Croatia with his father. The factors influential in this wish have been
· His father’s wishes
· The conflict between L’s parents;
· L’s difficulties with social interaction in New Zealand (which was not something that became evident from descriptions of L’ behaviour in Croatia) including aggression and verbal abuse, both with his family and at school;
· Conflict between the culture of his heritage, namely Bosnian, Croatian and New Zealand, most likely as a consequence of unresolved historical issues between the cultures of the Balkans, and L’s dislike of New Zealand due to what it represents for him at this time;
· His home environment which appears to have seen an escalation of verbal and physical abuse; and
· His belief that his mother tricked him into leaving his home in Croatia.
Issues around the legality of L being prevented from returning to Croatia need to be examined in light of international agreements.
Regardless of whether L remains in New Zealand or returns to Croatia, he is going to suffer the loss of daily contact with one parents or the other, and depending on the decision, his extended family. His current beliefs about New Zealand due to his recent experiences here, will be difficult to shift. His beliefs about Croatia may shift if he is given the opportunity to re- experience living there as it appears to have taken on grand qualities for him. In future he may benefit from having all parts of his heritage integrated into his life. In the short term, as a child, he needs consistency and loving contact with his family. Whether here or in Croatia, communication and travel between the countries offer opportunities for contact that are only recently available. L’s parents need to put his best interests first. Stability and positive communication are likely to be particularly beneficial for L.
Mediation and counselling may be helpful for the parents to come to some understanding of the impact of their own issues on L, and in coming to an agreement on how to put L’s best interests at the forefront of any custody arrangements. Counselling for L may be helpful for him to make sense of the difficulties of his life, and to assist him in learning to be respectful and non-violent.
[17] In the March 2003 report Dr Orr noted some improvement in “L’s” behaviour both with his mother and at home but not an improvement at school. Sadly this improvement has not been sustained. Dr Orr’s report of June 2004 report records that “L’s” behaviour at school and with his mother had deteriorated. At the time of the report “L” had reportedly assaulted a younger child at school and had been suspended. I note the principal of the school observed this was the first time she had ever stood a child down in 20 years of teaching. “L” is reported to have no friends at school and is not learning. The school had been doing their best to manage his behaviour. His anger towards his mother and his family remains. Dr Orr observed that “L” both values and resents his mother’s company.
[18] This is a brief summary only of a number of detailed reports about “L”, his conduct and circumstances. Mr Hembrow, in his helpful updated report (7 February 2005), referred to Dr Orr the possibility that “L” does have ADHD. His report notes Dr Orr’s comments (see paragraph [13] of this judgment) that whether “L” had or did not have ADHD would make no difference to her assessment of his situation. She still felt that “L’s” return to Croatia was essential and the sooner the better. Mr Hembrow, in late 2004, took the opportunity to write to the mother and father stressing his view that the resolution of “L’s” situation was vital so that treatment for his overt behavioural problems and a settled life could commence.
[19] I detail these matters because they illustrate the depth of analysis that this case has already undergone and the depth of analysis of “L” and his situation. Two Courts have concluded that it is best for “L” that he go back to Croatia with his father while doing the best to protect “L’s” right of access to his mother. It is clear that to continue to delay a final resolution of this dispute is doing continual harm to “L”. As Mr Hembrow reported Dr Orr’s view:
She was very forceful to me in saying that “L” should be returned to Croatia as soon as possible and that the dreadful situation that we have now with him simply being out of school, summer in Christchurch with his father and not receiving any medical assistance or help if it is necessary must end.
[20] Dr Orr considered the situation is far worse now than it was at the end of the hearing. It was her view that for “L’s” best interests he should be returned to Croatia as soon as possible.
[21] To return to the mother’s submission that there should be a further analysis of “L’s” ADHD. I see no reason why an analysis of “L’s” behavioural problems including whether he has ADHD is any reason to delay “L” from returning to Croatia. While his father may be sceptical about whether “L” has ADHD I know that he is deeply interested in “L’s” welfare and future and that he will obtain such a diagnosis and if appropriate, treatment.
[22] I appreciate the mother’s proposition that she believes that if she has custody and that there is no access at all between the father and “L” then she will be able to solve “L’s” behavioural problems. I agree with Dr Orr’s analysis that that is a possibility but unlikely and that because of this unlikelihood, highly risky. Clearly for such a proposition to work “L” would have to have no contact with his father for many years, perhaps not until adulthood. Dr Orr states, and I agree, that the quickest resolution for “L’s” behavioural problems is for him to live with his father in Croatia. I cannot see that there is any reason at all to delay the hearing of this case or to make an order that “L” be examined by a psychiatrist to diagnose ADHD. It can be done and is better done now in Croatia. It is certainly not a reason to allow an appeal against a custody order.
[23] The second ground of appeal is that the mother believes that assuming that “L” goes to Croatia she will never see him again. She does not believe that the father will honour the access arrangements and she does not believe she will be able to enforce any access arrangements in the Croatian Courts. She believes that the father has shown that he does not want her to have access and will prevent her from doing so.
[24] The father reassures me that he considers it essential that “L” have access to his mother and that such access in his view is “L’s” birth right. This is a matter which was also considered by Judge Ellis in his judgment and has been considered on previous occasions by the Court in regard to “L”. I accept that there has from time to time been difficulties with access as between the mother and the father in New Zealand. I consider that mostly to be the result of their on-going dispute and the inability of either to take a broader view of “L’s” interests. I am satisfied as was Judge Ellis of the father’s genuineness in saying that he will encourage and ensure
access by the mother to “L”. While I appreciate and understand the mother’s scepticism there is no evidence upon which I am entitled to doubt the father’s undertakings. I acknowledge that I am attempting to predict future behaviour and that this is always a difficult matter. However, the mother has not convinced me that the Judge in relying upon the father’s undertakings that he will facilitate access was wrong. Indeed I note that the form of the current order for access in the Family Court was as suggested by the father.
[25] The mother and father have different views of the Croatian Courts. The mother indicated that she thought the Croatian Courts were unlikely to support her. The father said they will decide cases independently and based on justice. I must assume, of course, that the Croatian Courts will deal with this matter in justice and fairness. I have no reason or evidence to think otherwise. I therefore consider that despite the mother’s misgivings there is no evidence which satisfies me that she would not be able to enforce access orders. I note that immediately after the custody decision the mother offered to waive the condition relating to registration of the access order to facilitate the return of “L” to Croatia. Unfortunately, that was not able to be finalised at the time. Dr Orr considered that while the father’s attitude in New Zealand both to New Zealand judiciary and its institutions was dismissive, he would be obedient of orders made in Croatia and would respect those. I also have little reason to doubt that proposition. As Mr Hembrow said although the father’s conduct over the years has been extremely difficult he has kept to his word.
[26] In the circumstances therefore I do not see that the appellant has any evidence other than her own feeling that the access orders will not be complied with by the appellant nor has she convinced me in any event that the Croatian Courts would not enforce such an access order. Those being the only two grounds of appeal and having rejected both, I dismiss the appellant’s appeal.
The conditional custody order
[27] An issue was raised by both the father and counsel for the child as well as the mother in relation to the Croatian mirror order. As I have recounted, the Family Court Judge in his decision made an order for access. He made the custody order
conditional upon the registration of the access order in the Croatian Courts. He did that to give comfort to the mother that she would have an enforceable order in Croatia should there prove to be difficulties with access.
[28] However a significant problem has arisen with regard to registration of the New Zealand orders in Croatia. Unfortunately no effort to date could be made to register the orders in Croatia because the Croatian authorities would not accept registration until the hearing of any appeal was completed.
[29] It seems clear now that registration of the New Zealand orders in Croatia can proceed as can the obtaining of a Croatian court order for access. This process will take several months, perhaps four to five months. It is certainly not a straightforward process. Currently “L” is not going to school and has not been to school now for some months. In New Zealand, because the school starting age is 5 years of age, “L” is well behind in his education. In Croatia children start school when they are 8 years of age. “L” is therefore already behind in Croatia he having turned 8 in November 2004. If the Family Court orders making “L’s” return to Croatia conditional upon the registration of the access orders are maintained, then it will be mid year and beyond before “L” could possibly return to Croatia. In the meantime he has got nowhere to go during the day. Dr Orr’s view is that his behaviour will continue to deteriorate and continue to entrench making treatment more and more difficult. There has already been an unfortunate delay since August 2004.
[30] Mr Hembrow advises that he has made some investigation of the circumstances under which registration of the Court order could be done in Croatia. He considers that it may be possible for him to register the New Zealand order in Croatia and for him to obtain an order in Croatia giving the appellant access. If not, then he would be reliant upon the father making those applications. I consider that it is wrong and seriously deleterious to “L’s” health that he continue to live in New Zealand in his current circumstances. I accept if I delete the conditional portion of the custody order there is some risk to “L’s” on-going access to his mother. This is balanced against the striking advantages to him in being able to leave New Zealand immediately. The mother agreed with such an approach if her appeal failed. I therefore propose to amend the order made by Judge Ellis. I invite submissions from
counsel for the child and the parties as to the exact form the order should be in. However, I propose immediately upon the sealing of this order the father be allowed to take “L” back to Croatia should he wish to do so. The access order will remain in the same terms as that ordered in the Family Court save that the custody order is not conditional upon the access orders being registered and made in Croatia. Mr Hembrow should continue his efforts to register the New Zealand orders in Croatia and obtain a Croatian order. If that proves impossible then it shall be the obligation of the father within a reasonable time to obtain the orders as sought. The mother of course will also be able to do so. In the meantime I would expect the father to be true to his word given in Court that he will, whether there is an order or not, facilitate access, as a minimum, in the way he proposed in the Court order. I invite urgent submissions by counsel for the child as to the form in which the order might suitably be drafted.
“Ronald Young J”
ORDERS
(In any publication of this judgment the names of the parties and the child in the orders are to be replaced by initials.)
1.SUBJECT TO Order 2 below:
Odisej Arambasic ("the father") shall have custody of Luka Arambasic born 3 November 1996 ("Luka") while Luka is under the age of 16 years on the following terms and conditions:
(a)The father may take Luka to reside with him in Croatia or may reside with Luka in New Zealand, whichever the father decides from time to time.
(b)If and for as long as Luka and the father reside in Croatia then the father shall ensure that Luka maintains contact with his mother by providing access as follows:
(i)the father will at his expense bring Luka to New Zealand for a total period of not less than four weeks on at least one occasion in each calendar year and throughout such stay or stays Luka will reside continuously with the mother;
(ii)should the father come to New Zealand with Luka on any additional occasion then there shall be additional physical access by the mother to Luka on the basis that Luka stays with her for a reasonable period of each such additional visit;
(iii)the parties shall prior to Luka’s arrival in Croatia in terms of these orders set up an internet video audio link to enable the mother to have access to Luka in Croatia not less than once weekly for a reasonable duration (being not less than thirty minutes); the mother shall bear her own cost of such
communication and the father shall bear Luka’s cost of such communication;
(iv)the father shall forthwith and from time to time provide a telephone number or numbers where the mother can telephone Luka and she shall be entitled to do so on a reasonable but otherwise unrestricted basis at her expense;
(v)the mother may communicate on an unrestricted basis with Luka by email and ordinary mail and likewise Luka may communicate with his mother on an unrestricted basis by email and ordinary mail; the mother will bear her own cost of so communicating with Luka and the father will bear the cost Luka so communicating with the mother;
(vi)should the mother visit Croatia, she shall be entitled to reasonable access to Luka on the basis that Luka resides with her on a continuous basis in accommodation separate from the father.
Nada Kafedzic ("the mother") shall have access to Luka as follows:
(a)For so long as Luka and the father reside outside New Zealand then:
(i)the father will at his expense bring Luka to New Zealand for a total period of not less than four weeks on at least one occasion in each calendar year and throughout such stay or stays Luka will reside continuously with the mother;
(ii)should the father come to New Zealand with Luka on any additional occasion then there shall be additional physical access by the mother to Luka on the basis that Luka stays with her for a reasonable period of each such additional visit;
(iii)the parties shall prior to Luka’s arrival in Croatia in terms of these orders set up an internet video audio link to enable the mother to have access to Luka in Croatia not less than once weekly for a reasonable duration (being not less than thirty
minutes); the mother shall bear her own cost of such communication and the father shall bear Luka’s cost of such communication;
(iv)the father shall forthwith and from time to time provide a telephone number or numbers where the mother can telephone Luka and she shall be entitled to do so on a reasonable but otherwise unrestricted basis at her expense;
(v)the mother may communicate on an unrestricted basis with Luka by email and ordinary mail and likewise Luka may communicate with his mother on an unrestricted basis by email and ordinary mail; the mother will bear her own cost of so communicating with Luka and the father will bear the cost Luka so communicating with the mother;
(vi)should the mother visit Croatia, she shall be entitled to reasonable access to Luka on the basis that Luka resides with her on a continuous basis in accommodation separate from the father.
(b)Should the father reside in New Zealand with Luka then the mother shall be entitled to liberal access to Luka as agreed upon by the parties or failing such agreement as determined by the Family Court of New Zealand.
The mother and the father will at all times keep each other informed as to their current home address and contact particulars including landline telephone numbers, mobile phone numbers, fax numbers and email addresses and similarly keep each other informed as to their work addresses and contact particulars.
The mother and the father will keep each other regularly informed as to Luka’s health and education, his activities and general welfare.
2.The above custody and access orders shall not come into force unless and until:
(a)the following steps have been taken in Croatia –
(i)This order has been registered in an appropriate Croatian Court; and
(ii)That Court has made an access order in favour of the mother on the same terms and conditions as are set out above, with the consent of the father,
(iii)That Court has confirmed to this Court that the Croatian Court has made such order and has jurisdiction to enforce the terms and conditions of the order; and
(b)A Judge of the Family Court of New Zealand has issued a minute to the effect that the above custody and access terms and conditions are now in full force and effect, and the previous orders of this Court are discharged.
3.Until and unless the minute referred to in 2(b) above is issued the interim order of the Family Court of New Zealand dated 4 December 2002 preventing the removal of Luka from New Zealand together with the interim orders for custody and access dated 25 September 2003 remain in full force and effect.
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