IN THE DISTRICT COURT HELD AT NELSON 042/260/93 APPLICANT CLARA EVELYN PACICCA RESPONDENT THOMAS EDWARD PACICCA Hearing; 23 September 1993 Counsel: G P Barkle for Applicant H W Riddoch for Respondent Decision: 23 September 1993 DECISION OP JUDGE R F PETHIG This matter involves in some respects, cross applications. There was an application for interim custody by Mrs Pacicca and the essential application today was one in which Mr. Pacicca who resides in New York, United States of America, seeks to have return of the two children of the parties marriage, the parties married in Reno, Nevada on 17 October 1986 and they have two children, Laurel Christine Pacicca born on 12 April 1987 and Eric Thomas Pacicca born on 11 August 1991. In 1989 mother, and at that stage the daughter only, came to New Zealand for a holiday but in the event stayed for approximately nine months. They returned to New York and the parties have lived together. Subsequently Eric has been born. It is clear that the parties and the children lived together and accordingly were habitually resident in New York but on 21 August 1993 the children were taken by their mother and they returned to New Zealand. There have been orders made in this case to protect the children in the meantime and directions were given by Judge McAloon as to the filing of affidavits because of course in such a case as this, the party who was overseas is at a disadvantage in terms of being able to give evidence to satisfactorily conduct the proceedings. In the event there were some affidavits filed as recently as yesterday afternoon, I read those after they were filed and this morning I have not ordered their removal from the file because I have read them and it seemed, in view of the urgency of the case, that it was appropriate that I simply acknowledge the fact that I had read them and take into account the inability of Mr Pacicca to reply. Mr Barkle wished to call Mrs Pacicca to give some oral evidence. I declined that. Mr Pacicca's brother, Mr Michael Pacicca was present in Court and would have been available to give oral evidence but again I refused that. It seemed to me that this was a case for submissions on the affidavit evidence which has been placed before the Court. I think it is quite clear that in terms of s.12 of the Guardianship Amendment Act 199I that the children are in New Zealand, that they have been moved from the United States which I recognise is a contracting state in terms of the Hague Convention which has been in force in New Zealand since 1 October 1991 so far as it effects the two countries, New Zealand and the United States of America, Accordingly the provisions of the Guardianship Amendment Act apply. It is clear also that at the time the children were removed from the United States that they had been at that stage habitually residing with both patents who were living together and in my view it is quite clear that the removal was in breach of Mr Pacicca's rights of custody in terms of the definition of the rights of custody in the Amendment Act. It seems clear to me from the matters contained in the application of which I can take notice, that he had the same rights as Mrs Pacicca in respect of the children's care and possession and that there was a breach of that in removing the children to New Zealand. Accordingly it seems to me that I am satisfied in respect of all the matters that were required by s.12 and that I therefore should make an order. Notice of Opposition however has been given by Mrs Pacicca on the grounds that pursuant to s.13 there is a grave risk that the children's return should first of all expose them to physical or psychological harm or would otherwise place the children in an intolerable situation. In that regard Mr Barkle relies on the evidence given by Mrs Pacicca and by others who have had some experience of the Pacicca home, as to matters that occurred there. In broad terms, however, it seems to me that her affidavit filed as recently as 21 September 1993 sets out her concerns; the presence of firearms at the home, that Mr pacicca grows marijuana and has given that to other persons, that he is an alcoholic drinking on a daily basis, that he has wildly changing personality and that various of those factors, and some of course in combination, place the children at a grave risk, which they should not be exposed to by their return. He denies that, although he has not in express terms denied each and every event. There w8s a matter of violence as well which he was specific in respect of one incident. He has, however filed, and I believe that I can take notice of the document which came from a James Stead a retired Police Captain who refers to his belief as to his good character. I do not know to what extent Mr Stead has any contact with Mr Pacicca. He says he is a business friend and a personal friend and business consultant, but whether he has visited the home or what, I do not know. To that extent I do not think I should place much weight on that at all. However, the fact is that there are these allegations made, but so far as their effect on the children is concerned, if the parties were living apart, it is simply a matter of conjecture. They are denied. The onus is on Mrs Pacicca to establish her grounds and the cases to which I have had access and in particular there was an article which was common ground between counsel of a Margaret Bennett reviewing these matters and indicating the extent to which there needs to be proof of matters affecting the children. None of the matters that have been raised in my view directly affects the children. They are of course relevant to a custody case, but in terms of the children's return to the United states and to their father's care, it seems to me that they go no more than being matters which would be in the balance in a custody case and do not establish the grounds that are made out by the New Zealand Statute. Unfortunately the children have been removed from their familiar environment and in the case of the older child, the education that she has had, I think those are matters which should be restored as soon as possible and for any enquiry as to who should be the custodial parent, where the children should live, should be a matter for the United States Court. That is where the parties have lived, that is where the children have been brought up and where the appropriate forum is for the resolution of this dispute between them. I enquired of Mr Riddoch as to whether his client would give an undertaking in view of the fact that Mrs Pacicca might be exposed to criminal proceedings in view of the information that has been filed. I am pleased to say that he has received instructions to give the undertaking to the Court that his client will not initiate any prosecution. That leaves the way clear for Mrs Pacicca if she wishes to return to the United States to take such matters as a custody case in her hands. Accordingly it seems to me that at this stage the children must be returned as soon as possible. Mr Michael Pacicca is here to return the children and to give effect to that accordingly I will be issuing the warrant pursuant to s.26 of the Guardianship Amendment Act to Police or Social Worker for uplifting the children and to Mr Michael Pacicca with a view to the children's return to the United States. Accordingly the order made by Judge McAloon restraining the children from leaving New Zealand is discharged. There will be a direction given to the Registrar that he can advise the authorities that the Court has cleared the way for the children's return to the United States. Application was made for costs. In view of the circumstances, I see no point whatever in making an order. It is an unusual order to make from the cases that I have seen and I do not make an order in favour of Mr Pacicca. I make an order for the return of the children's passports to Mr Riddoch forthwith but at this stage Mrs Pacicca's passport will remain in the Registrar's custody until after the children have been uplifted by Mr Michael Pacicca, at which time the passport can be released to Mr Barkle. /s/ R F Pethig _____________________ R F Pethig FAMILY COURT JUDGE Note: Contributed by Alice Zingarelli, Esq., of White Plains, New York.