AMD v DBS

[2013] NZHC 3451

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CIV-2013-425-000335 [2013] NZHC 3451

BETWEEN

AMD

Applicant

AND

DBS Respondent

Hearing:	17 December 2013 (By telephone conference)
Appearances:	M D Morris for Appellant D M Lloyd for Respondent
Judgment:	17 December 2013

JUDGMENT OF PANCKHURST J

(RE:  STAY OF DECISION AND A TIMETABLE)

Introduction

[1]      On 25 October 2013 Judge Coyle gave judgment in relation to:

(a)       a relocation application, whereby the appellant sought permission to relocate with two children to Invercargill from Queenstown, and

(b)a parenting order, whereby the day to day care of the children was redefined to provide increased time with their father, the respondent.

[2]      An appeal has been filed, although limited to the care arrangements.

[3]      The children are a daughter aged almost four years five months and a son aged two years ten months.

[4]      The mother also applied for a stay in relation to the revised care arrangements pending determination of the appeal.                 She swore an affidavit in support detailing

AMD v DBS [2013] NZHC 3451 [17 December 2013]

various concerns about the effects of the new arrangements upon the children.  The father filed a notice of opposition, but time did not permit him to provide an affidavit in reply to that from the appellant.

[5]      I have heard submissions from both counsel, Mr Morris attending before me in person and Ms Lloyd by telephone from Queenstown.  This has enabled me to reach a view in relation to the stay application, and also prescribe a timetable for the substantive hearing of the appeal in this Court.

A stay pending appeal

[6]      Prior to the Family Court hearing the children were in their mother’s care subject to a three weekly regime which provided overnight contact with their father. In week one he had the children from 5.00 pm on Friday to 9.00 am on Monday and for an evening meal between 5.00 and 7.00 pm on Tuesday.   In week two the children were with their father from 5.00 pm Friday to 5.00 pm Sunday, and also overnight on Wednesday from 5.00 pm to 9.00 am Thursday morning.  In week three the children had a meal with their father mid-week between,  I assume, 5.00 to

7.00 pm.  In total this represented six overnight stays and three mid-week evening meals in each three week cycle.

[7]      Judge Coyle determined that a four week cycle was appropriate.   In weeks one, two and four the children are to be with their father from 5.00 pm Thursday to

5.00 pm Sunday and between 3.00 and 7.00 pm each Wednesday.  In week three the children stay overnight with him on Wednesday from 3.00 pm to Thursday 9.00 am. In total this amounts to 10 overnight stays every four weeks, plus three “evenings”,

3.00 to 7.00 pm.

[8]      The appellant does not consider that the new regime is workable.  She notes:

The  new  arrangement  provides  for  three  intense  weekends  of  contact between the children and their father (and the father’s two family members), followed by a space of six and a half days with no contact.

She considers this less than optimum, given the children’s ages.   Moreover, the appellant considers the new regime is unduly restrictive for her in that there are only

12 weekends in a year when she can contemplate quality time with her family and the children.  I note that the mother previously resided in Wellington and moved to Queenstown on account of her relationship with the respondent.  None of her family reside in Queenstown, whereas the father has local family support.

[9]      In addition, the appellant considers that the new regime is intrusive in relation to a number of the children’s settled activities, that they have returned from their father’s care overtired, that they have missed out on one-off activity opportunities and that the care provided in relation to a broken wrist suffered by A was inadequate.

[10]     I note that Judge Coyle said this at an early point in his judgment:

Unusually, for a case that comes before the Family Court, in this case there is not a standout parent.  Rather, I have before me two adults who can only be complimented for the standard of parenting that they provide to A and E, for the depth of love and commitment and for their ability, save in relation to this issue (relocation), to work together and work co-operatively.  It is not to say the relationship is without conflict, for there are some areas of disagreement and conflict between (the father) and (the mother) but, by and large they have been able to resolve those issues and work co-operatively together because they are both focused on A and E.

[11]     In my view a stay is not appropriate. Three matters prompt that conclusion:

(a)      I do not consider the new regime is greatly different to the old one.  It increases the father’s time with the children to a significant extent, but does not bring about fundamental change.

(b)The appeal can be heard on 5 March 2014, and accordingly the delay to the hearing is about eight weeks – not a substantial period.

(c)      Counsel indicated that while the Family Court hearing, and outcome, had exacted a toll on the parties’ relationship, the parents nonetheless have the ability to liaise and put in place ad hoc arrangements seen to be to the benefit of the children.

[12]     I regard this third factor as particularly important.  Judge Coyle’s assessment

of the parents speaks for itself.   Counsel confirmed to me that their relationship

remains workable.   I have no reason to doubt the mother’s affidavit evidence that issues have arisen in relation to the new regime, about which she holds genuine concerns.  The father’s perspective in relation to these concerns is not in evidence. However, given the Judge’s assessment of the parents’ commitment to A and E, I look to them to co-operate and resolve any issues which might arise between now and  5  March.    As  always,  the  interests  of  the  children  should  be  viewed  as paramount.

A timetable

[13]     I make the following directions:

(a)      that  the  appeal  is  to  be  heard  on  5  March  2014  with  a  one  day estimate,

(b)      the appeal is a category two proceeding,

(c)      security for costs is waived, given that the appellant has applied for and is dependent upon a grant of legal aid,

(d)a paginated common bundle is to be filed and served by the appellant at least 10 working days prior to the fixture, and

(e)      the appellant’s submissions and affidavit evidence, limited to the operation and effects of the new regime, is to be filed and served 10 working days prior to the fixture; and the respondent’s submissions and updating evidence four working days prior to the fixture.

[14]     Lawyer for the children Ms K Kereru, is reappointed for the purposes of the appeal.  She is to file and serve any written submission two working days prior to the fixture.

[15]     I note that  the notice  of appeal  was  filed in  time, but  service upon  the respondent was  effected  one day late.   Ms  Lloyd  accepted this had not caused prejudice, and accordingly time is extended and leave to appeal is granted.   I also

reserve leave for the parties to revert to the Court should the need arise between now and the fixture date

Solicitors:

Preston Russell Law, Invercargill
Dale Lloyd Law, Queenstown