Holloway v Mazar [2018] NZFC 6348

Published 06 July 2020

Relocation — custody application — variation of parenting order — material change — welfare and best interests of child — forum conveniens — Hague Convention on the Civil Aspects of International Child Abduction — Care of Children Act 2004, ss 4, 5, 6, 46R, 48, 56, 68, 72, 126 & 139A — United Nations Convention on the Rights of the Child — Pidgeman v Oliver [2015] NZFC 6585 — Border v Tokoroa [2014] NZFC 10947; [2015] NZLR 832 — Roundtree v Tipsanich [2015] NZFC 5488; [2016] NZFLR 99 — Lehartel v Lehartel [1993] 1 NZLR 578 (HC) — GAK v KBK [2006] NZFLR 128 — AND v MMN FC Christchurch FAM-2011-009-341, 8 July 2011 — Gilmour v Gilmour [1993] NZFLR 561 — Spiliada Maritime Corporation v Cansulex Limited [1987] CA 460 — BRJ v LMA 23 September 2005, Tauranga Family Court. This case concerned cross-applications by parents of a four year old child as to day-to-day care and relocation. The parents had married and the child had been born overseas in the father's country of residence. After the parties' marriage broke down the father applied for, and was granted, an order from a court in his country of residence that prevented the mother from removing the child from that country. The mother breached that order and returned to New Zealand with the child. The New Zealand Family Court had granted a parenting order which involved a shared care arrangement between the mother in New Zealand and the father in his country of residence, which the father claimed the mother had breached by keeping the child in New Zealand. The mother now sought a variation of the parenting order under s 56 of the Care of Children Act (the Act), but required leave of the Court as per s 139A of the Act as the application had been made within the two-year limitation period. She also sought an order preventing removal of the child from New Zealand and a protection order. The father opposed mother's applications, and applied for a warrant from the court in his country of residence to uplift the child. He also applied in New Zealand to enforce the parenting order, and an order declaring that New Zealand is forum non conveniens (not the appropriate forum to consider the child custody matters), as well as an application for a stay of proceedings pending the outcome of the court applications in his country of residence. In considering the mother's s 139A leave application, the Court had to be satisfied that there was a 'material change' in the circumstances of either party or child to the previous proceedings. The Court determined that there had not been a material change to the circumstances — a breach of the parenting order did not amount to a material change — and that the mother would have to wait the two-year limitation period before reapplying for a variation. Counsel for both parties gave arguments on the issue of the appropriate forum. The Judge acknowledged a determination on this was not necessary at that point in time as the s 139A criteria had not been met, but that the issue would have to be decided when the mother reapplied 12 months time. The Judge concluded that the New Zealand Family Court was the appropriate forum as the child was currently in the day to day care of his mother in New Zealand, orders had been made by the Court, and while the mother had breached the parenting order, it was not appropriate to punish the parent through the child (by allowing removal of the child back to the father's country of residence). Finally, the Court considered the s 68 application by the father to enforce the parenting order and allow the child to return with the father to the father's country of residence, which required s 72 to be met. The Judge determined it was not appropriate to grant this order as both parents had a shared care arrangement under the existing parenting order, and issuing a warrant to allow removal to the father's country of residence was a separate issue to enforcing the parenting order. Judgment Date: 23 August 2018. * * * Note: names have been changed to comply with legal requirements. * * *