Waters v Swanson [2020] NZFC 8875

Published 11 October 2021

Application for leave — variation of parenting order — substantially similar proceedings — material change in circumstances — PTSD — costs of travel — Care of Children Act 2004, ss 56 & 139A — Duggan v Brownlee [2015] NZFC 4064 — Border v Tokoroa [2004] NZFC 10947, [2014] NZFLR 832 — Rountree v Tipsanich [2015] NZFC 5488, [2016] NZFLR 99 — Vincent v Rollo [2015] NZFC 5867 — DMP v EMP FC Dunedin, FAM 2008-012-336, 8 September 2011. The applicant applied for a variation of the existing parenting order in respect of the parties' children. As the application was commenced less than two years after the final order was made in the previous proceedings, leave of the Court was needed pursuant to s 139A of the Care of Children Act. The applicant and the parties' two children lived in New Zealand and the respondent lived in the UK. The parenting order stipulated contact with the respondent in New Zealand and the UK. A court must only grant leave if satisfied that there has been a material change in circumstances to either of the parties to the proceeding, or a child subject of the previous proceeding. A 'material change' is something that, had it been placed before the judge in the first instance, would have been likely to lead the judge to reach a different conclusion. It must be read in the context of a court's need to consider the child's welfare and best interests and was to be judged from the time of making the final order to the new application. The applicant submitted that she had been diagnosed with post-traumatic stress disorder (PTSD) as a result of violence inflicted upon her by the respondent. She submitted that under the current order, having to travel to the UK with the children so they could have supervised contact visits with the respondent would trigger her PTSD and set her back in her recovery, and that any disruption to her mental health would have a detrimental impact on the children. The Judge was satisfied that the PTSD constituted a material change in circumstances, as did the impact of COVID-19 on international travel. The application for leave was granted. Judgment Date: 13 October 2020. * * * Note: names have been changed to comply with legal requirements. * * *