Tony Angelo, 2005
SK v KP (CA 64/04, 24 February 2005) was concerned with the interpretation of habitual residence as a connecting factor in regard to the Convention on the Civil Aspects of International Child Abduction. The author points to the fine line between matters of fact and law, emphasising that a fact decision at first instance should not be overturned unless it is clearly wrong. Attention is also focused on issues regarding the method of implementing the Convention (paraphrasing rather than direct import) as well as the lack of promptness in these proceedings.
Nicky Richardson, 2004
This is a brief account of M v B (unreported) 26 February 2004. It focuses on the considerations relevant to an application for a stay of custody proceedings in New Zealand, where parallel custody proceedings had been brought in Australia.
Peter Kincaid, 1993
This article focuses on the proper law of the contract with reference to the freedom of parties to choose the governing law, as well as determining the governing law in the absence of a choice by the parties. The author distinguishes between domestic and foreign contracts, the latter excluding all contracts that impinge on New Zealand society on the basis that the characteristic performer habitually resides in New Zealand. Taking the view that contract choice of law should reflect primarily the interests of the parties, with the forum’s public interests playing a secondary role only, the author explores limitations, such as mandatory laws and public policy, on the application of the designated proper law.
Campbell McLachlan, 1984
This article calls for the adoption of an internationalist approach in developing the discipline of private international law in New Zealand. With reference to trans-national custody disputes and international child abduction, the author illustrates the need for internationally agreed solutions in order to secure conflicts justice for individuals caught up in trans-national family disputes. New Zealand should participate in the work of Hague Conference on Private International Law and contribute to the development of uniform private international law rules.
Elsabe Schoeman, 2011
The Rome II Regulation deals with choice of law in tort. The article examines the value of this Regulation vis-à-vis third (non-EU Anglo-Common law) countries, analysing the unique EU environment and the continuous movement towards uniformity and certainty. The author discusses the general choice of law regime laid down in Article 4 of the Regulation and applies it to two famous Anglo-Common law cases: Neilson v Overseas Projects Corporation of Victoria Ltd and Harding v Wealands, concluding that these cases would probably have been decided differently under Rome II. The article concludes that Rome II may indeed have comparative value for these third countries and that its importance should not be underestimated.
Debra Wilson, 2016
The author explains the circumstances in which the Adoption (Intercountry) Act 1997 will apply to cases of international surrogacy, where the intended parents of a surrogate child born outside of New Zealand wish to be recognised as the child’s legal parents in New Zealand. In accordance with the Act’s incorporation of the Hague Adoption Convention 1993 into domestic law, the Act applies if the habitual residence of the child is outside New Zealand. Determining the child’s habitual residence becomes a complicated task when there is no biological link between the child and either of the intended parents. The author argues that in such a situation the habitual residence of the intended parents can be imputed to the child where the intended parents are regarded as the legal parents in the child’s birth country, and the child has the biological make-up intended by the surrogacy arrangement. Such an approach is consistent with recent case law, the purposes of the Adoption Convention, and the principles of New Zealand surrogacy law.
Kenneth J Keith, 2016
The author explores the importance of both private and public international law in New Zealand family law. The author begins by outlining the contexts in which private international law issues can arise, and how the conflict of laws has historically dealt with such cases. The author notes New Zealand’s membership of the Hague Conference on Private International Law and signing of Hague and non-Hague family law treaties, discussing the extent to which these treaties have been implemented in national law by Parliament and the courts. The author concludes by commenting on some family law conventions to which New Zealand is not a party, and signals future challenges for the relationship between family law and international law.
Nigel Lowe, 2015
The author considers three aspects of the 1980 Hague Convention on the Civil Aspects of International Child Abduction that may be problematic and in need of reform. One challenge is where the child has been removed from a contracting state in accordance with a Convention ruling, and the ruling is reversed on appeal. The author examines the ability and obligations of contracting states to make new return orders in response to such appellate rulings. The author then examines difficulties in determining the child’s place of habitual residence, particularly regarding newborn children. Finally, the author considers the ability of contracting states to discharge return orders that have not been enforced, and the circumstances in which they should do so.