Morton v Baxter [2019] NZFC 1157

Published 13 March 2020

Application to strike out proceedings — removal of evidence from file — proceedings already determined — relocation — schooling — guardianship — Care of Children Act 2004, ss 4, 5 & 6 — Family Court Rules 2002, r 193 — A-G v Prince [1998] NZLR 262 — Couch v Attorney General [2008] NZSC 45. This hearing involved an application to strike out proceedings on the basis that they had already been heard. The father had previously applied to relocate to Australia with his two children and his application was declined. He now sought an order that the children attend a school in Australia. The mother sought to strike out the proceedings as a change of school to Australia would require relocation, an application that had already been declined. The father relied on the exact same arguments he had used in his failed relocation application. The mother argued this was re-hearing the same issues and would drag the children through another round of litigation. The Judge acknowledged the father's application was a relitigation of the same issues the Court had determined in the past. It was not suggested that the children go to a different school, or that they be sent to a different city in Australia, or any new basis for the move made. However, in considering the welfare and best interests of the children, the Judge determined the children, 10 and 13, may want to weigh in on the matter and so declined the application to strike out the proceedings. Earlier pleadings and affidavits were to be removed from the new application. Judgment Date: 1 March 2019. * * * Note: names have been changed to comply with legal requirements. * * *