Small v Small [2020] NZFC 5435

Published 14 December 2020

Application to permit overseas travel — childcare arrangements — COVID-19 — global pandemic — Care of Children Act 2004, ss 4, 5, 6, 106, 107 & 126. The parties were both Canadian citizens and the father and children had dual New Zealand citizenship. This was an application to determine whether the children should be permitted to travel to Canada with the mother at an earlier date or the with father at a later date. The father also sought a final parenting order for increased contact with the children. The family had moved to New Zealand for one year and the parents' relationship subsequently broke down and an interim guardianship order had been put in place. The mother had been working and receiving 80 percent of her pay, but the father had not worked since arriving in New Zealand. The parties' savings had largely run out. The context of the application was the COVID-19 global pandemic, where many countries had restrictions on travel. The father sought to keep the children in New Zealand for a few more months as he was concerned the children might contract COVID-19. Hearsay evidence in the form of news articles and screenshots from websites and a letter from the Acting Canadian High Commissioner were supplied by the parties. The evidence did not explicitly outline what the danger was. The Judge noted that, as of the decision date, the European Council was lifting restrictions on non-essential travel to the EU for some countries including Canada and New Zealand, and that the number of infections in Toronto and the parties' hometown was relatively low. If the mother and children followed recommended travel guidelines such as wearing masks and maintaining physical distancing where possible, the likelihood of contracting the virus was low. The Judge determined that it was for the Canadian courts to determine the parenting arrangements for the parties, as they were all Canadian citizens with their permanent place of residence in Canada. The Judge discharged the interim guardianship order and the order preventing the removal of the children from New Zealand, and directed that the children were to fly with the mother to Canada and wear masks during travel. The father's final parenting order application was dismissed. Judgment Date: 14 July 2020. * * * Note: names have been changed to comply with legal requirements. * * *