Abbott v Blair - [2013] NZHC 2358

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CIV 2013-425-000262 [2013] NZHC 2358

BETWEEN B ABBOTT Plaintiff

ANDA BLAIR Respondent

Hearing: 4 September 2013

Counsel: A M Morgan-Roberts for Applicant
R R Smith for Respondent
T McKenzie - Counsel for Child

Judgment: 10 September 2013

JUDGMENT OF WHATA J

[1] BA seeks to appeal from a decision of the Family Court1 permitting the respondent, AB, to relocate with their child to Hamilton.2

[2] Ms Morgan-Roberts contends for the appellant that a number of errors were made but in particular that the Court put excessive weight on the respondent’s welfare and happiness without a proper evidential basis, and placed insufficient weight on the interests of the child. She is supported by counsel for the child, who says the harm to the child has not been properly factored into the assessment.

Family Court judgment

[3] Judge Somerville set out the background noting that the parties are parents of

a little girl called “D”. He identified the chief legal considerations as follows:3

1 KKH v KRB [2013] NZFC 4453.
2 Names in this judgment are fictitious.
3 At [7].

ABBOTT v BLAIR [2013] NZHC 2357 [10 September 2013]

(a) Firstly [D’s] welfare and best interests must be the Court’s first, and
paramount (which means most important) consideration.

(b) Secondly, the Court is to refrain from generalisations, and instead it is to concentrate on what is in the welfare and best interests of this child in her circumstances.

(c) In deciding what best serves her welfare and best interests, the Court has to take into account the matters specified in s 5, namely that [D’s] parents and guardians should have the primary responsibility for the arrangements relating to her care, development and upbringing. I have already mentioned that. You are already doing that.

(d) That there is continuity in these arrangements.

(e) That her care, development and upbringing should be facilitated by ongoing consultation and co-operation between the parents. Again, you are already doing that; I will simply be reinforcing that.

(f) That relationships between [D] and members of her family and family group should be preserved and strengthened; that her safety must be protected; that her identity should be preserved and strengthened.

(g) The Court is also to have regard to other matters relevant to her welfare and best interests. These includes (sic) issues of love and security for her, including the strength of existing and future bonding with her parents, the attitudes and abilities of those parents, the support that each of them would give to her continued relationship with the other, and the stability of each home environment.

(h) Her opportunity for personal growth, including the commitment that each of her parents would make to having quality time with her. Availability and suitability of role models for her. The provision of material support and educational opportunities, and the stimulation that might be provided by each parent.

[4] The Judge also acknowledged that he should take into account [D’s] views, but…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Abbott v Blair

Details

AGLC: Abbott v Blair [2013] NZHC 2358
Case: [2013] NZHC 2358
Decision Date: 10 September 2013

CaseChat Overview and Summary

Abbott appealed the Family Court's decision to permit Blair to relocate with their child to Hamilton. The appeal raised issues concerning the weight given to the emotional wellbeing of the respondent and the impact of relocation on the child. The appeal hinged on whether the Family Court erred in its assessment of the paramountcy of the best interest and welfare of the child as required by Sections 4 and 5 of the Care of Children Act 2004. The court observed that the Family Court judge had considered the appropriate legal principles, but the appeal centred on the weight given to the various competing factors. The High Court found that the evidence about the respondent’s emotional health was not sufficiently compelling to be sure that the relocation was necessary in the best interests of the child. Given the significance of the emotional health evidence to the outcome, the High Court referred the matter back to the Family Court for reconsideration in light of a report from a suitably qualified expert about the emotional state of the respondent, the effect of that emotional state on the child, and the likely benefits to the child if the respondent were to relocate to Hamilton.

The Family Court is better placed to weigh the evidence it has already assessed against the outcomes of any expert assessment. The High Court granted leave to appeal, set aside the relocation order, and referred the matter back to the Family Court for reconsideration. The parties have leave to file submissions on costs, but the High Court indicated that it is unlikely to award costs to any party.

Orders