Ronin v Rigby [2019] NZFC 5075

Published 12 March 2020

Relocation — welfare and best interests of child — breach of parenting order — admonishment — costs of contravention — application to rescind order — leave to commence substantially similar proceeding — application to dismiss — Care of Children Act 2004, ss 4, 5, 6, 56, 64, 68, 71, 139 & 140 — Family Court Rules 2002, rr 32, 34, 156 & 193 — LH v FD [Admonishment order] [2010] NZFLR 926 — Stanford v Smalls [2016] NZFC 3993 — Martin v Ryan [1990] 2 NZLR 209 — K v C [2002] NZFLR 200 — W v W FC New Plymouth SP043-001-01, 30 May 2001 — Bank of New Zealand v Rada Corporation Ltd (1989) 2 PRNZ 147 — Pidgeman v Oliver [2015] NZFC 6585. The applicant father sought admonishment of the respondent mother for unilaterally moving their child to a new city in the South Island, in contravention of a parenting order. He also sought reimbursement of costs for the contravention. The respondent had applied for leave to bring substantially similar proceedings and this had been granted on the eDuty platform. The applicant sought an order rescinding leave for the respondent to commence substantially similar proceedings as well as to strike out the respondent's applications. Under s 68(1) of the Care of Children Act (the Act), on application by a party the court may, if it is satisfied that the other party has contravened the parenting order, admonish the party in breach or vary or discharge the parenting order under s 56. Section 64 of the Act reminds the court that when considering these enforcement provisions, the court must consider whether any response would serve the welfare and best interests of the child who is the subject of the parenting order. Lawyer for child noted the respondent's contravention had undermined trust between the parties and fueled frustration. It was also noted that an admonishment would have no negative impact on the child but would help the respondent understand the importance of complying with parenting orders. An admonishment serves as both a deterrent and an incentive and constitutes a formal record of a party’s misconduct. The Judge was satisfied that an admonishment should be made. The applicant also sought reimbursement of costs incurred when collecting the child from the South Island. Under s 71 of the Act, the court may order the party who contravened the parenting order to reimburse the other (wholly or in part). The court must be satisfied that the party contravened the order without reasonable excuse, the contravention caused the other party to incur costs and those costs were reasonable. Again, the court must have regard to the child's welfare and best interests as per s 64. Due to the respondent's limited finances, the Judge found an order to reimburse the costs of contravention would negatively impact the child by making his living situation more difficult. An order for costs would not meet the welfare and best interests of the child, so the application was declined. An order rescinding the respondent's application to commence substantially similar proceedings was granted on the basis that the respondent had not been honest in her application. The Judge declined to strike out the respondent's applications and granted leave for the respondent to commence substantially similar proceedings on the basis that her material circumstances had changed. Each party had a measure of success and failure with respect to the various applications so costs were to lie were they fell. A date was set for the substantive hearing. Judgment Date: 7 August 2019. * * * Note: names have been changed to comply with legal requirements. * * *