Rossi v Rossi - [2023] NZHC 3006

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-1527

[2023] NZHC 3006

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 Auckland

BETWEEN

MARY ROSSI

Appellant

AND

MARIO ROSSI

Respondent

Hearing: 24 October 2023

Appearances:

I M Blackford for the appellant

A E Ashmore and Z F Stowers for the respondent V A Crawshaw KC as lawyer for the child

Date of judgment:

27 October 2023

JUDGMENT OF JAGOSE J

This judgment was delivered by me on 27 October 2023 at 11.30am.
Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

Counsel/Solicitors:
Vivienne Crawshaw KC, Auckland Inger Blackford, Barrister, Auckland Alex Ashmore, Barrister, Auckland Tompkins Wake, Auckland

ROSSI v ROSSI [2023] NZHC 3006 [27 October 2023]

[1] The mother appeals the 25 July 2023 decision of Judge D A Burns in the Family Court at Auckland, granting the father’s application under s 105 of the Care of Children Act 2004 (the Act) for return of the child to the child’s ‘habitual residence’ in the United Kingdom.1 She contends the child has no habitual residence.

Background

[2] The mother is a New Zealander; the father Italian. The mother and father lived in the United Kingdom, where the child was born in October 2017. The family moved to Italy in September 2021. They returned to the United Kingdom in November 2022, where they stayed until travelling to New Zealand in December 2022 on tickets for return to the United Kingdom in mid-February 2023.

[3] With the father’s agreement, the mother’s and child’s tickets were changed for return to the United Kingdom at the end of February 2023, when the parents intended to house sit in France for five weeks. The father returned to the United Kingdom in mid-February 2023 as originally ticketed. On his arrival in the United Kingdom, the mother informed him she intended to stay with the child in New Zealand. The father then travelled to his family in Italy.

[4]The Family Court proceeding followed.

Applicable law

[5]Section 105 relevantly provides:

Application to court for return of child abducted to New Zealand

(1) An application for an order for the return of a child may be made to a court having jurisdiction under this subpart by, or on behalf of, a person who claims—
(a)that the child is present in New Zealand; and
(b)that the child was removed from another Contracting State in breach of that person’s rights of custody in respect of the child; and
(c)that at the time of that removal those rights of custody were actually being exercised by that person, or would have been…

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 Rossi v Rossi

Details

AGLC: Rossi v Rossi [2023] NZHC 3006
Case: [2023] NZHC 3006
Decision Date: 27 October 2023

CaseChat Overview and Summary

Rossi v Rossi [2023] NZHC 3006 involves an appeal by Mary Rossi against a Family Court decision that granted Mario Rossi's application for the return of their child to the United Kingdom, the child's 'habitual residence'. Mary contends the child has no habitual residence. The case centres around whether the child was habitually resident in the United Kingdom at the time of his removal to New Zealand. The legal issue at the core of this appeal is the interpretation and application of the concept of 'habitual residence' as outlined in the Care of Children Act 2004. The Family Court had to determine if the child was habitually resident in the United Kingdom when he was removed to New Zealand, and if so, whether this justified his return under the Hague Convention on the Civil Aspects of International Child Abduction 1980.

The High Court's analysis focused on whether the Family Court erred in finding the child's habitual residence to be in the United Kingdom. The Court examined the objective manifestation of the parents' intention to reside in the United Kingdom, along with other relevant factors such as the duration of stay, the purpose of the stay, and the strength of ties to the United Kingdom. The High Court found no error in the Family Court's decision, affirming that the child's habitual residence was indeed in the United Kingdom. The Judge's findings were based on a comprehensive assessment of the evidence, including the family's movements and the parents' objective 'settled purpose' to reside in the United Kingdom. The High Court dismissed the appeal, concluding that the Family Court did not err in its determination of the child's habitual residence.

In its judgment, the High Court rejected the mother's argument that the family lived a nomadic lifestyle, which would undermine the habitual residence in the United Kingdom. The Court also dismissed the mother's contention that the Family Court erred in giving insufficient weight to the child's own ties and degree of assimilation into the United Kingdom. The High Court held that the Judge's conclusion was based on a proper objective assessment of all the evidence, rather than on subjective intentions of the parents or the child's views. The Court also declined to admit additional evidence sought by both parties, finding it neither fresh nor cogent. The appeal was dismissed, and costs were awarded to Mario Rossi.

Orders