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Benson v Schwartz [2019] NZFC 8144

Published 27 January 2021

Relocation — welfare and best interests of child — mother's mental health — te ao Māori — United Kingdom — Care of Children Act 2004, ss 4, 5, 6 & 46 — B v B NZHC CIV-2007-404-005016, 9 May 2008. This hearing was to determine where the parties' child was to reside. The mother wanted to relocate to the UK where she was from, and the father wanted the child to relocate to a city two hours drive from where he was currently living in the day-to-day care of his mother. Section 4 of the Care of Children Act (the Act) states the paramount concern is the welfare and best interests of the child. It is also a requirement that the Court take into account the principles in s 5 which include safety, parental and guardian responsibility for care, consultation and co-operation, continuity of caregiving arrangements, continuing relationships with parents and the preservation and strengthening of extended family relationships and identity. Section 6 identifies that opportunities must be given to children to express their views and any views expressed must be taken into account. In this case, the child was five and could not fully grasp the concept of what it would mean to move overseas. His views were given little weight. The mother submitted that she needed to move back to the UK for the sake of her mental health. She submitted that if she were forced to remain in New Zealand there was a risk her mental health would deteriorate to the extent that her parenting would become sub-par. The father opposed this, saying it would be best if the child moved to his city. The Judge declined both parties' applications. To allow the child to move to the UK would risk his relationship with his father and younger sibling and prevent him from experiencing te ao Māori . However, to force the mother to move to the father's city would be a risk to her mental health (and therefore to the child). The child was to remain in the day-to-day care of his mother in his current city, unless the parties agreed otherwise in writing. Judgment Date: 1 October 2019. * * * Note: names have been changed to comply with legal requirements. * * *