S V C HC WHA CIV-2007-488-000802

S V C HC WHA CIV-2007-488-000802

Leave to file out of time was granted because the delay was modest and adequately explained; leave to appeal was granted because the relocation decision engaged important matters under s16(2)(b) and there is at least a seriously arguable material error of law/fact in that the Family Court did not consider the impact on the children of the mother's intended departure to England and the judgment proceeded on stale evidence, creating a real risk of prejudice to the children's interests.

Citation
openlaw-80c0f096_5a9e_4e9c_b304_785bea415958.pdf
Parties
Applicant: S; Respondent: C; Child: AC and SC
Court
High Court
Jurisdiction
New Zealand
Judgment Date
15 February 2008
Procedural Posture
Leave to Appeal Under S143 Care of Children Act 2004; Extension of Time Under R703(5) High Court Rules / Application for Leave to Appeal and Extension of Time Decided in High Court
Outcome
Application for extension of time and for leave to appeal granted
Legal Topics
Relocation, Leave to Appeal, Extension of Time, Best Interests of the Child, Rehearing
Family Law Children Law Civil Procedure Relocation Leave to Appeal Extension of Time Best Interests of the Child Rehearing

Case Brief

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Parties

S

Applicant

C

Respondent

AC and SC

Child

Procedural Posture

Leave to Appeal Under S143 Care of Children Act 2004; Extension of Time Under R703(5) High Court Rules / Application for Leave to Appeal and Extension of Time Decided in High Court

Legal Issues

  1. 1 Whether to grant extension of time to file leave to appeal under r703(5)
  2. 2 Whether to grant leave to appeal under s143 Care of Children Act 2004 from a Family Court refusal of relocation under s44
  3. 3 Whether the Family Court failed to consider a material change in circumstances (mother's intended removal to England) and its impact on the children

Ratio Decidendi

Leave to file out of time was granted because the delay was modest and adequately explained; leave to appeal was granted because the relocation decision engaged important matters under s16(2)(b) and there is at least a seriously arguable material error of law/fact in that the Family Court did not consider the impact on the children of the mother's intended departure to England and the judgment proceeded on stale evidence, creating a real risk of prejudice to the children's interests.

Court Disposition

Application for extension of time and for leave to appeal granted

Orders

  • Leave to file application for leave to appeal out of time under r703(5) granted
  • Leave to appeal under s143 Care of Children Act 2004 granted