ARG v BKL - [2019] NZHC 1514

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV 2019-419-0058

[2019] NZHC 1514

BETWEEN
ARG

Appellant

AND

BKL

Respondent

Hearing: 26 June 2019

Appearances:

J I Hawker for the appellant

S E Hughes for the respondent KMSH Tan for children

Judgment:

1 July 2019

JUDGMENT OF JAGOSE J

This judgment is delivered by me on 1 July 2019 at 2:30 pm pursuant to r 11.5 of the High Court Rules.

.....................................................
Registrar / Deputy Registrar

Solicitors/Counsel:
Wynyard Wood – City Office, Auckland Sarah Hughes, Wellington
Kiriana Tan, Barrister, Hamilton

ARG v BKL [2019] NZHC 1514 [1 July 2019]

[1] ARG and BKL are parents and guardians of two children, in relation to whom Judge D G Smith in the Family Court at Hamilton made parenting orders under the Care of Children Act 2004 (the “Act”) in decisions of 19 December 2018 and 12 February 2019 (the latter mistakenly dated 12 February 2018).1

[2] The orders generally are to endorse and enforce the parties’ “strict parallel parenting arrangement”, necessary given the extent of conflict between them over care of their children. Judge Smith explained the foundation for such arrangement is “[b]oth parties … believe that [the children] are safe in the care of either parent”.2 By ‘parallel parenting’ is meant, except at the extremes, each parent cares for the children while in their respective custody without reference to the other.3 The Judge observed the fundamental nature of that arrangement, in holding against provision for the non- caring parent’s contact as “cut[ting] right across the concept of parallel parenting”.4

[3] Of some materiality here is the arrangement was to be conducted “with the assistance of a parenting coach”:5 “[w]here agreement is required in the Order, it is intended that the agreement be obtained through the Parenting Coach”.6 No such person yet has been appointed.

[4] ARG appeals two discrete aspects of those parenting orders: their provisions “[n]either party will enter either child in any extra-curricular activity without the prior agreement of the other parent”;7 and “[ARG]’s extended holidays with the children will be in odd numbered years, [BKL]’s in even numbered years”.8 It is argued the former errs as to the parties’ agreement on such constraint; the latter – because of other orders, giving ARG care of the children during April rather than July school holidays in odd-numbered years9 – disregards the children’s welfare and best interests.

1      Respectively, ARG v BKL [2018] NZFC 9912 [2018 decision], and ARG v BKL [2019] NZFC 837 [2019 decision].
2      2019 decision, above n 1, at [14].
3      CR v JS FC Auckland FAM 2008-004-673, 11 April 2011 at [21]; and L v A (No 2) (2003) 23
FRNZ 602 (HC) at [57]–[59].
4      2019 decision, above n 1, at [48].
5      Appendix A to 2019 decision [Parenting order] at 19.
6      At 20.
7      At 23.
8      At 11.
9      At 8–9.

Approach on appeal

[5] The Act’s s 143 entitles any party to proceedings…

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 ARG v BKL

Details

AGLC: ARG v BKL [2019] NZHC 1514
Case: [2019] NZHC 1514
Decision Date: 1 July 2019

CaseChat Overview and Summary

The appeal in ARG v BKL was heard by the High Court of New Zealand and involved a dispute between the parents, ARG and BKL, over parenting orders for their two children. ARG appealed two aspects of the Family Court's parenting orders: the requirement for both parents to agree on enrolling the children in any extra-curricular activities, and the allocation of extended holidays with the children. The appeal was a general appeal, with ARG having the burden of proving that the Family Court's decision was wrong.

The court found that the Family Court's decision to require both parents to agree on enrolling the children in extra-curricular activities was not an error, as it was in line with the principle of parallel parenting and the parents' joint responsibility for their children's welfare and best interests. The court also found that the Family Court's allocation of extended holidays with the children was not an error, as it was within the court's discretion and did not contravene the paramount consideration of the children's welfare and best interests.

The appeal was dismissed, and BKL was entitled to 2B costs and disbursements as the successful party. If the parties were unable to agree on the costs, they were required to file and serve short memoranda for determination by the court.

Orders