NEW ZEALAND – PACICCA – 1993 PACICCA v PACICCA. The mother took the children to New Zealand. It was clear to the court that the habitual residence was New York, USA and ordered the children returned. In regards to the mother’s charge of grave risk, the court felt those matters were better left to the courts of the United States. The court sought an undertaking from the father that he would not “initiate any prosecution” in order to allow the mother to return to the U.S.







Hearing; 23 September 1993

Counsel: G P Barkle for Applicant
H W Riddoch for Respondent

Decision: 23 September 1993


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

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

Note: Contributed by Alice Zingarelli, Esq., of White Plains,
New York.