Mullen v Mullen [2020] NZFC 6567

Published 22 January 2021

Relocation — welfare and best interests of child — child's wishes — virtual schooling — COVID-19 — global pandemic — Care of Children Act 2004, ss 4, 5, 6 & 133 — United Nations Convention on the Rights of the Child — Kacem v Bashir [2010] NZSC 112. This was an application to relocate the parties' child to the United States. The child was nearly 16 years old and wished to live with his father, who had repartnered with an American woman, in the United States. The mother opposed the application and had previously been granted an order preventing the child's removal from New Zealand. When considering a relocation application, the welfare and best interests were paramount pursuant to s 6 of the Care of Children Act ("COCA"). A court also had to have regard to the purposes and principles of COCA (ss 4 & 5) and the views of the child (s 6). A previous court order had granted shared custody of the child between the parents, but the child had chosen to live with his father. The mother opposed the application on the basis that she was trying to re-establish her relationship with the child and that relocating him to the US would prevent this; it would be disruptive for his schoolwork; and she was concerned by the high COVID-19 infection rate in the US. The Judge noted that the mother had had several years in which to rebuild her relationship with the child, and that the infection rate in the area where the father's new partner lived was relatively low, and there were options for the child to complete his NCEA schooling virtually. The child clearly wanted to move with his father to the US and preventing him from doing so might breed resentment towards his mother, and he was at an age where his views carried considerable weight. The Judge discharged the removal prevention order and granted leave to relocate on the condition that a bond be lodged with the Family Court until the child's 16th birthday. Judgment Date: 11 August 2020. * * * Note: names have been changed to comply with legal requirements. * * *