Holloway v Mazar  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  NZFC 6585 — Border v Tokoroa  NZFC 10947;  NZLR 832 — Roundtree v Tipsanich
 NZFC 5488;  NZFLR 99 — Lehartel v Lehartel  1 NZLR 578 (HC) — GAK v KBK  NZFLR 128 — AND v MMN FC Christchurch
FAM-2011-009-341, 8 July 2011 — Gilmour v Gilmour  NZFLR 561 — Spiliada Maritime Corporation v Cansulex Limited 
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. * * *