Molloy v Molloy [2020] NZFC 11546

Published 01 June 2021

Relocation — welfare and best interests of children — views of children — COVID-19 pandemic — Care of Children Act 2004, ss 5, 6 & 50 — United Nations Convention on the Rights of the Child, art 12.1 — Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1, (2010) 28 FRNZ 483 — S v O [2006] NZFLR 1, (2005) 25 FRNZ 259 — S v S (1999) 18 FRNZ 248 — BDD v IBG IU [relocation] (2006) 25 FRNZ 767 — MHK v AGE FC Hamilton FAM-1997-019-185, 3 October 2005 — BWM v MTPRB FC Rotorua FAM-2006-063-000322, 10 December 2009 — ASD v KIT FC Tauranga FAM-2002-070-664, 25 January 2008. The parties were United States citizens who had moved to New Zealand while two of their children were young, the third child being born shortly after the move. After nine years in New Zealand the parties separated. The applicant father had already begun to experience upheavals in his employment, and after being made redundant he decided to return to the US. In this case the applicant sought orders granting him day-to-day care of the parties' three children, and allowing the children to relocate from New Zealand to the US. He argued that this was what the children wanted, they would be closer to family and would have a better lifestyle. The respondent mother opposed the applications, as she wanted to remain in New Zealand and believed the relocation would not be practical or feasible. The parties raised concerns about each other's spending habits, judgement and lifestyle. The Court found that both parties had made mistakes in the marriage, but that they were both loving and capable parents. Also, the children would not be at a major risk of COVID-19 infection in the US. Two of the children had expressed a desire to move to the US, and one had been in conflict with the respondent over his wish to move. The oldest child had mixed feelings, stating that there were benefits to both moving to the US and staying in New Zealand. The Court found that in the context of the case, the children's views were of great importance. In spite of the potential disturbance from separating the children, the Court ruled that the oldest child should remain with his mother in New Zealand while the other two should live with their father in the US. The children and parents were to maintain contact despite living in different countries, and the children were to spend some time in each country every year, including alternate Christmases in New Zealand and the US.