P v S - [2021] NZHC 2768

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. FOR FURTHER INFORMATION,

PLEASE SEE https:// judgments/

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE WHANGANUI-A-TARA ROHE

CIV 2021-485-131

[2021] NZHC 2768

BETWEEN
P

Appellant

AND

S

Respondent

Hearing: 28 October 2021 via Teams

Counsel:

J L Forrest for Appellant

M M van den Bergh for Respondent

Judgment:

15 December 2021

JUDGMENT OF MALLON J

Introduction

[1] This appeal concerns the care arrangements of T, a child, and more particularly whether P, his father, may take him to Argentina from time to time. The Family Court made parenting orders that did not permit this.1 P applies for leave to appeal that decision. He also applies for leave to adduce evidence in support of his appeal. This Court has earlier determined that the leave application and the application to adduce evidence should be determined at the same time as the substantive appeal.2

1 S v P [2021] NZFC 1117.
2 P v S HC Wellington CIV-2021-485-131, 19 April 2021; and P v S HC Wellington CIV-2021-485- 131, 6 July 2021.

P v S [2021] NZHC 2768 [15 December 2021]

Background

[2] S and P were once married and together they have a child, T. S is French. P is Argentinian. They met in the United States, where T was born in February 2017, but they have lived in New Zealand for some time. S and T moved to New Zealand in July 2017, but P has lived here since 2007 with intermittent periods spent overseas.

[3] The relationship between S and P broke down. In February 2019, S applied for and was granted a without notice protection order and interim parenting order amongst other things. Following a defended hearing, in November 2019 the temporary protection order was removed and no final protection order was made.3 At various times, variations were made to the interim parenting orders.

[4] S also applied for relocation to France. This application was to be heard on 16 and 17 September 2020. At or shortly before 16 September 2020, S advised that this application was not being pursued. This was because S had obtained New Zealand residency and intended to remain living here. With the parties’ agreement, a Family Court PHP (or a parenting hearing programme) took place on 16 September 2020 instead, to progress the care arrangements for T.4

[5] At the PHP, the parties agreed those care arrangements subject to the issue of international travel. Both parties wished to take T on overseas trips: S wished to take T to France (where her family is) and P wished to take T to California (where P’s children from a former relationship lived). P also raised the possibility of travel to Argentina (where his family live). It was proposed that this issue would be addressed by written…

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 P v S

Details

AGLC: P v S [2021] NZHC 2768
Case: [2021] NZHC 2768
Decision Date: 15 December 2021

CaseChat Overview and Summary

This appeal concerns the care arrangements of a child, T, and more particularly whether P, his father, can take him to Argentina from time to time. The Family Court made parenting orders that did not permit this. P applied for leave to appeal that decision. He also applied for leave to adduce evidence in support of his appeal. The High Court granted leave to appeal and to adduce evidence. The appeal was allowed. The Family Court's decision to decline permission for P to travel with T to Argentina is quashed. The final parenting orders are amended to insert "and/or Argentina" after "California" in the second line of paragraph 12 of the orders. Paragraph 18 of the orders is also deleted.

The legal issues the court was required to decide included whether leave should be granted to appeal the Family Court decision, and if so, whether the appeal should succeed. The court considered whether the Family Court had sufficient grounds to decline permission for P to travel with T to Argentina, whether the Family Court properly considered the relevant factors, and whether P was a flight risk. The court concluded that leave should be granted and the appeal should succeed because the Family Court's reasons for declining permission for P to travel with T to Argentina were insufficient. The court found that P has close connections with Argentina, where his family lives, and that s 5(e) and (f) of the Care of Children Act 2004 favour P being able to take T to Argentina. The court also found that P is not a flight risk and that Argentina's record under the Hague Convention did not preclude travel to that country.

The final orders of the court were that leave to appeal is granted, leave to adduce evidence in support of the appeal is also granted, the appeal is allowed, the Family Court’s decision to decline permission for P to travel with T to Argentina is quashed, and the final parenting orders are amended to insert "and/or Argentina" after "California" in the second line of paragraph 12 of the orders. Paragraph 18 of the orders is also deleted. Leave is reserved to the parties if there is any issue as to costs. If there is, memoranda (or preferably a joint memorandum) should be filed by the end of January 2022.

Orders