South v South - [2018] NZHC 1369

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IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2018-409-000071 [2018] NZHC 1369

BETWEEN
ANNA SOUTH

Appellant

AND

JOHN SOUTH

Respondent

Hearing: 5 June 2018

Appearances:

S van Bohemen for the Appellant J H Wren for the Respondent

D E Standring for the Child

Judgment:

11 June 2018

JUDGMENT OF NATION J

Background

[1] John and Anna South’s marriage ended in October 2016 after a relationship of approximately nine years.1 Anna is an American citizen. For most of their marriage and through to the present time, Anna and John have lived in New Zealand. They have a four year old child, […].

1 In recognition of the above suppression, the judgment available for publication has been anonymised. The names used for the parties are fictitious.

SOUTH v SOUTH [2018] NZHC 1369 [11 June 2018]

[2] Before the separation and since, both Anna and John have been actively involved in parenting their son. They have a comprehensive shared care regime.

[3] Anna sought an order in the Family Court permitting their son’s relocation to her home town in the United States. John opposed the application. He sought a continuation of the status quo. If that was not possible, he sought a parenting order granting him the day to day care of their son.

[4] There was a hearing of the applications on 21 and 22 November 2017. On 21 December 2017, in a reserved judgment, Judge Moran:2

(a) refused Anna’s application to relocate the son to the United States;

(b) provided for continued shared care if both John and Anna continued to reside in New Zealand; and

(c) made a parenting order granting John day to day care of their son and providing for Anna to have contact on a specified basis, that order to apply if Anna is not living in New Zealand.

[5] On 7 November 2018, Anna filed a notice of appeal against that judgment. In the notice of appeal, she seeks relief by way of:

(a) an order granting Anna day to day care of the son in the United States with specified contact to John;

(b) an order setting out terms for shared care in New Zealand if the Court does not grant her day to day care on that basis; and

(c) if Anna is unable to live and work lawfully in New Zealand and does not have day to day care of the son, orders to be made permitting her to have care of him for three months of the year in the United States, with John to have day to day care of him in New Zealand for nine months of the year.

[6]The appeal is set down for hearing in the High Court on 1…

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 South v South

Details

AGLC: South v South [2018] NZHC 1369
Case: [2018] NZHC 1369
Decision Date: 11 June 2018

CaseChat Overview and Summary

In the High Court of New Zealand Christchurch Registry, the case of South v South was heard on an appeal by Anna South against the Family Court’s decision to deny her application for relocation of her son to the United States and instead grant John South day-to-day care of their son, with Anna having specified contact. Anna sought relief by way of an order granting her day-to-day care of the son in the United States with specified contact to John, an order setting out terms for shared care in New Zealand if the Court did not grant her day-to-day care on that basis, and if she was unable to live and work lawfully in New Zealand and did not have day-to-day care of the son, orders to be made permitting her to have care of him for three months of the year in the United States, with John to have day-to-day care of him in New Zealand for nine months of the year. The legal issue before the Court was whether Anna should be granted leave to present further evidence on the hearing of the appeal. The Court held that the proposed evidence as to Anna's immigration status was material and should be admitted as it would assist the Court in determining whether the orders made in the Family Court were in the best interests and welfare of the parties’ son. However, the Court declined leave for Anna to present evidence of her employment situation and financial situation as it was not new evidence and would not materially assist her with the case she was making. In conclusion, Anna was granted leave to adduce evidence contained in paragraphs two to six of her affidavit and documents one and two associated with that affidavit, while leave was declined with regard to the balance of her affidavit and the other documents contained in the bundle.

Orders