J F C v N J C [2015] NZCA 632

J F C v N J C [2015] NZCA 632 [18 December 2015]NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004,ANY REPORT OF THIS PROCEEDING MUST COMPLY WITHSS 11B TO 11D OF THE FAMILY COURTS ACT 1980IN THE COURT OF APPEAL OF NEW ZEALANDCA722/2015[2015] NZCA 632BETWEEN J F CApplicantAND N J CRespondentHearing: 18 December 2015Court: Randerson, Harrison and Stevens JJCounsel: S M Henderson and G D Coutts for ApplicantL J Postlewaight for RespondentH J Drummond for the children (no appearance)Judgment: 18 December 2015 at 4.30 pmJUDGMENT OF THE COURTA The application for a stay of execution is dismissed.B The applicant must pay costs to the respondent on the basis of a standard application band A with disbursements as fixed by the Registrar.C This case may be cited as Carter v Carter.____________________________________________________________________REASONS OF THE COURT(Given by Randerson J)Introduction[1] The parties to this application for a stay of execution under r 12 of the Court of Appeal (Civil) Rules 2005 have been engaged in extensive litigation in the Family Court and in the High Court in relation to the five children of their marriage who are aged between eight years and 15 months. The applicant seeks an order staying a High Court order permitting the respondent and the children to relocate to Melbourne. The family is currently located in New Zealand.[2] The applicant was born in New Zealand but has lived predominantly in Australia since he was 13 years of age. The respondent was born in Australia. The couple met in Sydney in 1989 when they were each aged 16 years. They married in 1994 and continued to live in Australia. The four older children were born in Australia between 2007 and 2012, while the youngest child was born in New Zealand in 2014.[3] The family remained in Australia until June 2013 when they moved to this country. Mr Henderson for the applicant accepts that the parties had no long term intention of staying in New Zealand. They agreed they would stay in New Zealand for a maximum of five years, recognising however that their time in New Zealand might be considerably shorter. Within a few months of their arrival in New Zealand the marriage encountered difficulties and the parties separated in October 2013.[4] Proceedings in the Family Court commenced in March 2014 on a variety of issues. Amongst other things, the respondent sought an order permitting the relocation of the children to Melbourne where the respondent has substantial employment prospects. Judge Lindsay in the Family Court declined to permit the relocation and, instead, retained in force an order preventing the removal of the children from New Zealand.1 Judge Lindsay made final parenting orders on 8 September 2015.21 C v C [2014] NZFC 6941.2 C v C [2015] NZFC 7654.[5] The respondent filed two separate appeals to the High Court, one relating to the relocation issue and one relating to the parenting orders. After a two day hearing, Lang J delivered an interim judgment on 12 October 2015 in which he expressed the provisional view that the respondent should be permitted to relocate to Melbourne with the children.3 The Judge adjourned the hearing until December 2015, directing the respondent to file an affidavit before then setting out details of the arrangements she had made for the accommodation and education of the children in Melbourne. The Judge also directed that the applicant file an affidavit setting out his intentions regarding the relocation no later than 26 November 2015. This direction was made because the applicant had informed the Court that if the respondent were permitted to relocate to Melbourne with the children, he would consider moving there himself so that he could maintain fuller contact with the children.[6] The respondent filed an affidavit as directed but the applicant did not put forward any proposals to the Court with regard to his intentions. After conducting a further hearing in Whangarei at which the respondent was cross-examined about the arrangements she proposed for the accommodation and schooling of the children, Lang J delivered a final judgment on 14 December 2015.4[7] Lang J was not persuaded that he should revisit his provisional conclusion regarding the issue of relocation. He remained of the view, for the reasons expressed in his interim judgment, that relocation was in the best interests of the children. The Judge recognised the importance of ensuring the applicant continued to have generous contact with the children. Since the applicant had not informed the Court of his intentions in the event of the respondent and children moving to Melbourne, the Judge gave very detailed directions about the contact arrangements that were to apply under two different scenarios: first, those that were to apply if the applicant did not relocate to Melbourne and second, if he did not.[8] The Judge gave the following additional directions:3 C v C [2015] NZHC 2486.4 C v C [2015] NZHC 3182.(a) The respondent was directed to file a written undertaking in which she agreed to comply in all respects with any orders made by the High Court or by this Court. She was also directed to undertake that, in the event litigation should ensue in Australia, she would provide the Family Court of Australia with copies of all the judgments issued by the New Zealand courts in relation to the proceedings between the parties;(b) The respondent's counsel was directed to file and serve amemorandum confirming that a total of $25,000 had been lodged in abank account to meet the applicant's relocation costs (should hedecide to move to Melbourne) and his travel costs should he decide to remain in New Zealand with the consequence that he would need to travel on a regular basis to Australia in order to maintain contact with the children;(c) The respondent's counsel was directed to lodge an order for sealingwithin three working days and to arrange for the sealed orders to be registered in Australia forthwith so they were enforceable in that country.[9] Lang J recognised that it would be necessary to set aside the orders made in the Family Court both as to relocation and parenting. He therefore allowed the two separate appeals the respondent had brought on these issues and set aside the orders made in the Family Court.[10] Finally, the Judge reserved leave to both parties to apply generally in the event that further orders were necessary to give effect to or implement the proposals sanctioned by the Court.Stay of execution[11] Almost immediately, the applicant applied to the High Court for a stay of execution of the 14 December 2015 judgment. The Court received memoranda fromboth parties and delivered a judgment declining the stay application on 16 December 2015.5[12] In brief, Lang J's reasons were:(a) The applicant's appeal rights would not be rendered nugatory if a staywere refused. The applicant would be able to prosecute his appeal and the respondent had been directed to file undertakings relating to the enforcement of any orders made by this Court in Australia.(b) On the other hand, the respondent's position might be irretrievablycompromised if the stay were granted. In particular, the Judge hadaccepted evidence from the respondent's employer that heremployment in Australia would be terminated in the event she was unable to take up her new position in January next year. Since it wasunlikely this Court could hear the applicant's appeal before that time,a stay of execution would be likely to bring about the termination of the respondent's employment.(c) This removed one of the most important reasons underpinning theapplicant's desire to return to Australia and one of the principalreasons the Judge had permitted the relocation to occur. In that sense,the applicant's appeal rights would be rendered nugatory in the event a stay were granted.(d) If the applicant decided to return to Australia before the appeal to this Court could be heard she would do so with the knowledge that this Court might direct her to bring the children back to New Zealand.Applicant's case for a stay[13] Mr Henderson submitted a stay of execution should be granted because:5 C v C [2015] NZHC 3256.(a) The applicant's appeal (if leave were granted) would be renderednugatory in the absence of a stay.(b) The appeal had reasonable prospects of success, particularly because it would be argued Lang J had wrongly embarked on the appeal against the parenting orders having made it clear at the initial hearing that the parenting issues would be put to one side and without obtaining updated evidence pertinent to the parenting issues. This meant the Judge had not properly considered s 4 of the Care of Children Act 2004 which requires the welfare and best interests of a child to be the first and paramount consideration in any proceedings under the Act.(c) The Judge was wrong to place trust and confidence in the respondent in relation to her undertakings.(d) The Judge had been wrong to give prominence to the respondent'scontinued employment at the expense of failing adequately to consider the welfare and best interests of the children.(e) The best interests of the children required that they remain in NewZealand until this Court has determined the applicant's appeal.Decision[14] Counsel agree that the principles relevant to the determination of a stay are those summarised by this Court in WAH v WTW.6 We are satisfied that the application for a stay of execution should be declined.[15] First, the Judge was right to conclude that the applicant's right of appeal, ifleave were granted by this Court, would not be rendered nugatory if a stay wererefused. We do not accept Mr Henderson's submission that if the children leave the jurisdiction, this would compromise the applicant's ability to secure their return toNew Zealand should the appeal be allowed. As a matter of comity, we accept that6 WAH v WTW [2010] NZCA 344 at [20]–[23].the courts in Australia will act appropriately and in accordance with law. We acceptthat if the hearing of the applicant's appeal is unduly delayed, his position might beadversely affected to a degree by the establishment of a new status quo in Australia. However, we are confident any risk in that respect can be minimised by the grant of an early fixture in this Court.[16] Second, we assess the prospects of success for the applicant's appeal as low.First, he must seek leave to appeal. We are told there may be a jurisdiction issue in that respect but, in any event, the prospects of a successful appeal on the merits are not strong. There is no apparent question of general or public importance arising from the judgment which applied settled legal principles to the facts as found.Despite Mr Henderson's submissions to the contrary, we are satisfied Lang J considered very fully and carefully the effects of relocation on the welfare of the children. He recognised the significance of s 4 of the Care of Children Act in this context and the parties had full opportunity to address the Court on that issue. Mr Henderson complained that the Judge had set aside the parenting orders despite indicating to counsel earlier that the relocation issue would be dealt with first. However, we are satisfied both parties agreed to this approach and that the applicant must have recognised that if a relocation order were made, the existing parenting orders could not stand.[17] Third, the Judge has made very detailed orders providing for the applicant to have generous contact with the children whether he stays in New Zealand or decides to move to Melbourne. We were told that the respondent has complied with the directions given by the Judge requiring the provision of funding to assist the applicant to relocate to Australia should he wish to do so and to fund the trans- Tasman travel to and from Australia should he decide to remain here. She has evenarranged accommodation for the applicant at her parents' home in Melbourne. As well, we were told the applicant has lodged orders in the High Court for sealing and has given the other undertakings designed to assist the enforcement of any New Zealand Court orders in Australia.[18] Fourth, we agree with the Judge's remarks about the significance of therespondent's employment opportunities in Australia. In brief, the respondent hassignificant qualifications and experience in the IT field and she has the opportunity to take up part-time employment in Melbourne with substantial remuneration.Contrary to Mr Henderson's submission, the Judge did not take this factor intoaccount at the expense of the paramount consideration of the welfare of the children. He regarded the opportunity for the respondent to provide for the financial support of the family as an important factor not for its own sake but for the benefits it would bring to the welfare of the children generally. Mr Henderson accepted that the applicant is not in a position to provide financial support to the family at the present time and he is currently receiving a social welfare benefit. We do not accept Mr Henderson's scepticism about the respondent's trustworthiness and the evidenceregarding employment in Melbourne. In that respect, Lang J heard and accepted evidence from the employer. He concluded on the basis of this evidence that unless the respondent promptly takes up the offer of employment it will be lost.[19] Ms Postlewaight informed us that the respondent's employment contractcommences on 2 February 2016. We are satisfied the respondent will be seriously prejudiced and that the wellbeing of the children will be compromised should a stay be granted and the employment opportunity lost.[20] Fifth, the applicant did not present to the High Court any alternative proposal pending the disposal of his appeal. It was not until a submission his counsel filed yesterday that he raised for the first time a proposal that the respondent could move to Melbourne taking the youngest child with her but leaving the other four children with him in New Zealand. It is remarkable that the applicant has left it to the lastminute to offer this proposal. In any event, we accept Ms Postlewaight's submissionthat the proposal has little merit. Obviously, it would have the effect of splitting the family which is not in the interests of any of the children. And it is not feasible to expect the respondent to maintain her employment in Australia while moving regularly backwards and forwards in order to maintain meaningful contact with the children in New Zealand.[21] Sixth, the Judge was careful to time the relocation to coincide with the end of the school term in New Zealand and the commencement of the new school year inAustralia in February. That is an eminently sensible arrangement and is in the best interests of the children. It would be disrupted should a stay be granted.[22] Finally, both parties and all the children are citizens of Australia. It is not in dispute that they have spent the great bulk of their lives in that country and that their brief time spent in New Zealand was never intended to be permanent.[23] For these reasons, we decline the application for a stay of execution and order that the applicant pay the respondent costs on the basis of a standard application on a band A basis together with disbursements as fixed by the Registrar.[24] This judgment may be cited for law report purposes as Carter v Carter.7Solicitors:Henderson Reeves Connell Rishworth, Whangarei for Applicant7 These are not the party's real names.