Mackenzie Elvin

Fiona Mackenzie, our family law partner, has attained a masters in law. Her A grade dissertation is about re-location of children.

RELOCATION OF CHILDREN – Summary of dissertation by Fiona Mackenzie
May 2009

Relocation of children is an area of major dispute. The Court of Appeal in D v S (CA No1) [2002] NZFLR 116 established there could be no a priori assumptions with respect to any of the relevant factors in an assessment of a child’s bests interests. It also said in D v S (CA No 2) [2003] NZFLR 81 that the Family Court had been wrong to rely on W v C [2000] NZFLR 1057. In its view, Judge Inglis QC had incorrectly sought to create joint guardianship rights as the starting point for a best interests assessment, with shared care between separated parents being the most desirable way of discharging joint guardianship responsibilities. The High Court has also on a number of occasions confirmed that the passage of the Care of Children Act 2004 has not changed the law established by the Court of Appeal in D v S. However, recent trends within the Family Court suggest that there have been changes in application and practice. These developments are contrary to the law established by D v S.

The dissertation seeks to outline these trends, backgrounding the history and development of the English and Australian positions, addressing New Zealand’s divergence from the English position arising out of its rejection of the English Court of Appeal’s decision in Payne v Payne [2001] 2 WLR 1826, discussing the effect of gender and gender politics and exploring the changing attitudes to relocation of a small number of practitioners and judges, particularly since the passage of the Care of Children Act 2004. The latter was achieved by means of a survey of necessarily limited scope. The dissertation concludes that New Zealand has reached the position where, in rejecting the factor of the mother’s health and happiness as having greatest weight, it has now arguably rejected that factor as having any weight at all. At the same time, it has also elevated the factor of the child’s relationship with the non-relocating parent as having greater weight than any other factor. The result is that a mirror image of the Payne approach has developed in New Zealand, contrary to the formal statement of the law contained in D v S. How this position might be addressed is also explored, discussing the increasingly important corrective function of the appellate court and finally, the need for legislative intervention.