Seth v Bhave [2020] NZFC 8327

Published 10 May 2022

Application for enforcement order — right of access — welfare and best interests of child — care and protection — interim custody order — face-to-face contact — international travel — travel restrictions — COVID-19 — coronavirus — global pandemic — Hague Convention — Care of Children Act 2004, ss 4, 5, 6, 46G, 113 & 133 — Oranga Tamariki Act 1989, s 78 — Gumbrell v Jones (2001) 20 FRNZ 304, [2001] NZFLR 593 — Central Authority v Rhodes [2013] NZFC 4954. The applicant mother applied for an enforcement order of her right to access the parties' child pursuant to s 113 of the Care of Children Act ("the Act"). The parties were both Fijian nationals, but the respondent had immigrated to New Zealand in the 1980s. The parties had met and married in Fiji and their child, the subject of the proceedings, had been born in New Zealand. A year later the applicant returned to Fiji to renew her visa, with the intention of only staying for five days, but she had been disallowed from returning to New Zealand. The child and mother had not seen each other in six years apart from sporadic video contact. The application triggered the provisions of the Act relating to the welfare and best interests of the child, including safety considerations, and the child's views. While in the respondent father's care, the child had been the subject of an interim custody order in favour of Oranga Tamariki but had since been returned to the respondent's care. Cross-allegations of family harm by both parties were unsupported by evidence, but character references were supplied and the Judge concluded that the child was safe in either parent's care. The child's view was that he wanted to stay in New Zealand living with his father, which the Judge noted was understandable given the involvement of Oranga Tamariki. At the conclusion of the hearing the parties had agreed amongst themselves that contact in the form of video calls and regular message updates would take place. Face-to-face contact could occur in the form of visits to Fiji once the COVID-19 international travel restrictions were lifted. Rather than vary the existing parenting order, the Judge made a new interim parenting order for contact arrangements as agreed to between the parties. Judgment Date: 29 September 2020. * * * Note: names have been changed to comply with legal requirements. * * *