EOJ v ACP [2016] NZHC 276 (25 February 2016)

Last Updated: 22 March 2016

NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO

11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE

HTTP://WWW.JUSTICE.GOVT.NZ/FAMILY-JUSTICE/ABOUT-US/ABOUT- THE-FAMILY-COURT/LEGISLATION/RESTRICTION-ON-PUBLISHING- JUDGMENTS

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-2574 [2016] NZHC 276

UNDER	Care of Children Act 2004
IN THE MATTER OF	an appeal against decision under s 46R of the Act
BETWEEN	EOJ Plaintiff
AND	ACP Defendant

Hearing:	25 February 2016
Counsel:	J Moore for Appellant C A Wilson for Respondent
Judgment:	25 February 2016

_{JUDGMENT OF DUFFY J}

Solicitors:

Teei & Associates, Henderson

Lawes Law, Orewa

Counsel:

Judith Moore, Barrister, Milford, Auckland

EOJ v ACP [2016] NZHC 276 [25 February 2016]

[1] The applicant, who is the mother of a child to whom I shall refer as Y, seeks leave to appeal a decision of the Family Court in which Judge Burns ordered that the applicant would be required to pre-pay a bond of $50,000 if she wished to take Y to visit relatives in Europe.

[2] The applicant and the respondent were previously married; Y is their only child. Y was born in 2011 and is now nearly five years old. The Family Court proceedings originally arose because the applicant wanted to relocate to Germany, taking Y with her.

Factual background

[3] The applicant is a Spanish citizen and the respondent is a New Zealand citizen. They met over the internet in 2008 and in June 2009 the applicant moved to New Zealand to live with the respondent. The applicant and the respondent were married in 2010 and their daughter, Y, was born in 2011.

[4] In August 2012, the applicant returned to Spain, taking Y with her. However in early 2013, the applicant returned to New Zealand. Later in July 2013 the applicant sought to relocate to Germany, again taking Y with her. The applicant had lived in Germany for 18 years prior to her arrival in New Zealand; she has family and good employment prospects in Germany and enjoys the German way of life. In the Family Court the applicant contended that she would be much happier in Germany and that this would benefit Y, since the applicant would then function better as a parent.

[5] The re-location was opposed by the respondent. There was an extended court process which culminated in a two day defended hearing in the Family Court in August 2015 before Judge Burns. He released his reserved decision on 22

September 2015. The judgment is relatively lengthy and includes a comprehensive summary of the factual background as well as a careful analysis of the relevant legal principles.

Decision of the Family Court

[6] Because the applicant does not seek to challenge the parts of Judge Burns’ decision in which he rejected her application to re-locate Y to Germany I do not propose to address those aspects of his judgment.¹

[7] Of the number of concerns that Judge Burns expressed about the proposed relocation of Y, one is relevant to the order for payment of the bond of $50,000. The applicant’s proposal in the Family Court was that, if re-location were permitted, the respondent should visit Germany once a year and that Y should also return to New Zealand once a year. The respondent contended that he had experienced significant difficulties obtaining contact with Y while they were living in the same city and so he did not have any confidence that the applicant would facilitate a relationship between them from the other side of the world. He stated that he did not have the financial resources to implement the proposed visitation arrangements. Judge Burns was concerned about future contact between Y and her father in the event that the relocation proceeded. He did not think it was realistic to suggest that the parties would be able to pay the costs associated with international travel from New Zealand to Germany (or vice versa) twice a year, which he estimated to be at least $10,000 per year.

[8] Regarding the bond of $50,000, the Judge ordered:

I direct that mother can go back at any stage to Germany for the purposes of a holiday so she can reconnect with her family and if she does so the child is to be left in the care of father while the mother is away. If she wishes to take the child to Europe then there will have to be pre-payment of a bond held for the period of time while she is away which would be forfeited in the event that she fails to return the child back to New Zealand, and that bond is set at the sum of NZ$50,000. Prior to her departure there will need to be orders made or agreements reached between the parents with respect to the provisions of the Hague Convention and any other conditions associated with overseas travel.

[9] In setting a bond of $50,000 Judge Burns recognised that the applicant would have difficulty making the bond payment:

¹ The applicant is legally aided and she could only obtain funding to cover an appeal against the decision to require a pre-paid bond of $50,000 before Y could be taken out of New Zealand for visits to Europe.

It is going to be difficult for her to raise the money to pay for a bond to ensure ongoing contact and I am satisfied this is a case where I have to impose a very significant bond to ensure compliance if I was to allow relocation.

Grounds of appeal

[10] The applicant seeks leave to appeal the sum of the bond as set by Judge Burns on the basis that it is too high, and so precludes her from travelling to Europe with Y.

Submissions for the applicant

[11] Counsel for the applicant submits that in setting the amount of the bond to be

$50,000, Judge Burns failed to adequately consider the child’s welfare and best

interests under ss 5(e) and (f) of the Care of Children Act 2004.

[12] Counsel submits that the determining factor in granting leave to appeal in this case is whether leave to appeal would be to the benefit of Y’s welfare and best interests, citing the High Court decision in W v R.² She submits that this issue is sufficiently important to justify the time and expense of an appeal because the amount of bond affects the applicant’s ability to travel to Europe with Y and therefore impacts the welfare and best interests of Y. Furthermore the appeal will not

disturb the Parenting Order that is currently in place.

Submissions for the respondent

[13] Counsel for the respondent submits that the decision regarding bond was carefully considered and was a reflection of the risk factors identified by Judge Burns. Furthermore:

7. The appellant has provided no evidence of her efforts to secure the necessary bond or that she has asked her extended family and friends to make a contribution to the bond which, of course, will be refunded on her return.

8. The appellant had made it very clear at the hearing on 22 September

2015 that she does not enjoy living in Auckland, is isolated and lonely and misses her family and friends terribly. There is a risk that

the appellant might decide to remain in Europe with [the child]. The respondent would then be faced with the options of filing Hague Convention proceedings or travelling to Europe himself to try and resolve matters, both of which options would result in a substantial cost.

Approach to the application for leave to appeal

[14] The statutory basis for the present application is set out in s 143 of the Care of Children Act:

143 Appeals to High Court

(1) This subsection applies to a decision of a Family Court or District Court, in proceedings under this Act (other than criminal proceedings), to—

(a) make or refuse to make an order (other than an interlocutory or interim order); or

(b) dismiss the proceedings; or

(c) otherwise finally determine the proceedings.

(2) A party to proceedings in which there is made a decision to which subsection (1) applies, or a child to whom those proceedings relate, may appeal to the High Court against the decision. However, if the proceedings are under section 46C or 46R, the party or child may appeal on with the leave of the High Court.

(...)

[15] The decision which the applicant seeks leave to appeal was made in relation to proceedings under s 46R, which concerns disputes between guardians. Section

16(2)(b) provides that changes to the child’s place of residence amount to an exercise of guardianship. Section 4 of the Care of Children Act applies in respect of these interlocutory proceedings so that the court is required to consider the welfare and best interests of Y to be the first and paramount consideration.

[16] The Court of Appeal in X v Y affirmed that the test in respect of an appeal under s 145 of the Care of Children Act is the same as that set out in Waller v Hider regarding s 67 of the Judicature Act 1908:³

The appeal must raise some question of law or fact capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost and delay of the further appeal[.]

[17] Toogood J recently set out the principles which apply in respect of an application for leave to appeal under s 143:⁴

[8] The principles for a grant of leave to appeal a decision under s 46R of the Act are at the heart of the matter to be addressed in this judgment. I summarise them:

(a) In allowing appeals of decisions under s 46R of the Act to proceed only with the leave of the Court, Parliament must have intended that some, but not all, decisions under the section that resolve disputes between guardians should be subject to appellate review.⁵ By imposing the leave requirement, Parliament understood that there was a need for finality and that not all challenges would warrant granting leave.⁶

(b) However, because there is no further right of appeal against a decision under s 46R decision, beyond an appeal in this Court,⁷ the Court will generally be more willing to grant leave.⁸

(c) Where the decision reached by the Family Court has long term implications for the welfare of a child, leave will be more readily granted.⁹

(d) A decision whether to grant leave must be based on the first and paramount consideration of the welfare and best interests of the child.¹⁰ In general, bearing that consideration in mind, the Court will need to be satisfied that the issue is sufficiently important to be subject to an appeal notwithstanding: (i) the nature of the decision; (ii) the need for stability to be brought to the life of the child and (iii) the inevitable cost and delay inherent in appellate review.¹¹

⁴ SFB v JEBH [2015] NZHC 2897 at [8]. There is some contrary authority: see the judgment of Wylie J in H v H. Wylie J determined that the right to appeal under s 143 was a general right of appeal and therefore the principles set out by the Supreme Court in Austin, Nichols & Co Inc v Stichting Lodestar ([2007] NZSC 103[2007] NZSC 103; , [2008] 2 NZLR 141) were applicable. With respect, it appears that Wylie J’s judgment conflates the legal test for determining leave to appeal with the legal approach on appeal.

⁵ _{PJKW v DAR [2006] NZFLR 946 (HC) at [31].}

⁶ _{BFW v MPG [2012] NZHC 1188 at [22]; PJKW v DAR, above n 5, at [31].}

⁷ _{Care of Children Act 2004, s 143(1)(a).}

⁸ _{BFW v MPG, above n 6, at [21].}

⁹ _{At [23].}

¹⁰ _{Care of Children Act, s 4(1).}

¹¹ PJKW v DAR, above n 5, at [40] and [45].

(e) Leave will more readily be granted where there is a discernible serious issue to be determined.¹² Accordingly, disputes that involve “important matters affecting the child”¹³ are more likely to justify granting leave.¹⁴ Where and how the child is to be educated is one such matter.¹⁵

(f) If the party seeking leave identifies a seriously arguable material error of law or fact, then it is likely that leave will be granted.¹⁶

[18] This extract provides a useful and up-to-date summary of the law in respect of this issue.

Analysis

[19] The issue to be decided is whether the applicant should be granted leave to appeal the bond of $50,000 imposed by the Family Court in respect of international travel.

[20] There are number of factors which weigh in favour of granting leave to appeal in this instance. First, this issue indirectly impacts on an “important matter affecting the child” as defined by s 16(2) of the Care of Children Act, namely:¹⁷

(b) changes to the child’s place of residence (including, without limitation, changes of that kind arising from travel by the child) that may affect the child’s relationship with his or her parents and guardians[.]

[21] The question of travelling overseas to visit family also impacts on Y’s welfare and best interests, in particular those principles which are set out in ss 5(e) and (f) of the Care of Children Act:

5 Principles relating to child’s welfare and best interests

The principles relating to a child’s welfare and best interests are that—

(e) a child should continue to have a relationship with both of

_{his or her parents, and that a child’s relationship with his or}

¹² _{BFW v MPG, above n 6, at [23].}

¹³ _{“Important matters affecting the child” is defined in Care of Children Act, s 16(2).}

¹⁴ _{PJKW v DAR, above n 5, at [43].}

¹⁵ _{Care of Children Act, s 16(2)(d).}

¹⁶_{. PJKW v DAR, above n 5, at [44].}

¹⁷ (emphasis added).

her family group, whānau, hapū, or iwi should be preserved

and strengthened:

(f) a child's identity (including, without limitation, his or her culture, language, and religious denomination and practice) should be preserved and strengthened.

[22] A second factor which weighs in favour of granting leave in this case is that the bond of $50,000 is a very large sum in comparison to Judge Burns’ assessment of the applicant’s financial state and earning potential:

[56] ... The mother has a modest amount of savings which she has been putting aside to try and pay for her and the child’s airfare back to Germany. She lives in rented accommodation and apart from furniture and household chattels has no other significant assets. She has not made the Court aware of any assets held by her in Germany or Spain. ... The mother is currently working for a company where I think she earns, it would seem, around the average wage.¹⁸ She said that she worked for Germany Post in Cologne and it seems likely that she might return to similar type of employment if she was to go back. My impression was that this was an income either around the average wage, or slightly below.

[23] It is relevant to note here that Judge Burns did explicitly consider Y’s welfare and best interests in one regard when setting the bond sum. He considered that the sum of $50,000 was necessary in order to deter the applicant from acting in a manner that was contrary to Y’s best interests, namely by attempting to remove her permanently from New Zealand, and thereby depriving her of any meaningful relationship with her father. However, the decision does not record the Judge explicitly considering whether the applicant could pay the set bond, or his recognition that if she could not the result would be that Y would be unable to visit her maternal relatives in Germany, and so she would lose contact with them. Such considerations are also arguably relevant and are to be weighed against the need for a bond that would deter the applicant from failing to return Y to New Zealand. Thus the setting of the bond payment may have been affected by a failure to consider other relevant considerations.

[24] The final consideration weighing in favour of granting leave to appeal in this case is that the parties had no prior notice that Judge Burns had it in mind to impose

¹⁸ As of June 2015, the average weekly income from wages and salaries in New Zealand was $882,

or $45,864 per year (Liz MacPherson “New Zealand Income Survey: June 2015 Quarter” (2

October 2015) Statistics NZ <www.stats.govt.nz>).

a pre-paid bond of $50,000 before Y could accompany her mother on visits out of New Zealand. In this regard I record that counsel for the respondent responsibly acknowledged that the imposition of a $50,000 bond was something that had taken those involved in the Family Court hearing by surprise. Counsel for the applicant advised the Court that she had never suggested, as a fallback position, an arrangement that would see Y resident in New Zealand but permitted to accompany the applicant on visits to Germany on specific terms, including a bond set at a sum that was anything like $50,000.

[25] Because counsel for the parties had not raised payment of a bond of $50,000 as part of their case they had not prepared to address whether that was an appropriate sum.

[26] It is not apparent from the judgment why Judge Burns set the bond at $50,000 rather than some lesser sum that was more within the applicant’s reach, but which nonetheless still had the deterrent effect the Judge sought. Nor did the parties have an opportunity to address the Judge on this point before the bond was set.

[27] The way in which the $50,000 bond was arrived at raises concerns of general interest as well as for the parties in this case in terms of whether they each had a fair opportunity to be heard on the question of the bond payment.

[28] I am satisfied that the considerations that I have identified meet the legal requirements for the granting of leave to appeal.

Result

[29] Leave to appeal is granted.

[30] Leave is reserved to the parties to file memoranda on costs.