Relocation — mental health — disability — children's welfare and best interests — continuity principle — play therapy — Care of Children Act 2004, ss 4, 5, 6, 46R, 133 & 139A — Kacem v Bashir [2010] NZSC 112. The parties had been married and had two young children together. The mother had moved to New Zealand from Ireland. The father was from New Zealand and the children were born in New Zealand. This hearing was to determine an application by the applicant mother to relocate the children back to Ireland, as well as care arrangements for the children and whether a play therapy direction for one child was necessary. The proceedings between the parties had gone on for some years. An interim parenting order was in place for the children to be in the day-to-day care of the mother and to have contact with the father on the condition that he was not under the influence of alcohol, which was then progressed to more frequent contact. An interim protection order had been in place in favour of the mother, but was subsequently discharged and the application for a final order discontinued. One of the children was then diagnosed with a growth issue. The mother subsequently applied for a variation of the parenting order, on the basis that the father had relapsed in his alcohol use and could not safely manage the child's health needs. A section 133 psychologist report had also been directed. A fact-finding hearing took place, at which a different Judge found that the mother's allegations of family violence had been overstated and that the father did not meet the diagnostic criteria for alcohol abuse or use disorder. At this hearing, in support of the relocation application, the mother submitted that her mental health had been fragile due to her disability and that remaining in New Zealand would create a real risk that her psychological availability to the children would be diminished, and therefore her ability to care for the children would deteriorate. She also provided a report from a psychologist in support of this. In Ireland, she would be around family in a supportive environment and the children would be immersed in their Irish culture. Any impact on the children's relationship with their father as a result of relocation could be mitigated by visits to New Zealand and daily video calls. The father submitted that the children were thriving in New Zealand, that the one child's health had improved considerably, and that relocation would disadvantage them. Additionally, given the communication issues the parties experienced, relocation presented a risk that any contact arrangements would break down. Lawyer for child submitted that there were genuine concerns raised by the father, and that there was currently no evidence that the mother's circumstances had so far impacted on her ability to care for the children. The Judge considered the Care of Children Act (COCA) provisions dealing with a child's welfare and best interests (the first and paramount consideration in COCA proceedings), as well as the views of the children. Given the children's ages (five and seven at time of hearing) and levels of development, their views were not determinative. The Judge also considered the submissions of the parties and lawyer for child, and the evidence provided. The Judge noted, that in preparing the report, the mother's expert witness, the psychologist, had only heard from the mother and had not spoken to the children or father, accessed any pleadings in the case, or updated her report. The report was therefore given little weight. In contrast, the court-appointed psychologist's evidence was that there were no emotional psychological impediments impacting on either parents' ability to care for the children. The Judge concluded that the children's welfare and best interests would be supported by remaining in New Zealand. The evidence did not support a conclusion that remaining in New Zealand would damage the mother's mental health to the point it would impact on her ability to care for the children. With regards to play therapy, the evidence did not support a finding that a court order on this matter was required. The Judge dismissed the relocation application. The Judge discharged all previous orders including the order preventing removal of the children from New Zealand. The Judge made a final parenting order for the children to be in the shared care of both parents with provisions, including for travel back to Ireland. The Judge directed that costs were to lie where they fell, but invited counsel to file a costs application if necessary. Judgment Date: 15 May 2022. * * * Note: names have been changed to comply with legal requirements. * * *