B v T - [2018] NZHC 2801

NOTE: PURSUANT TO S 169 OF THE FAMILY PROCEEDINGS ACT 1980, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CIV-2018-442-5 [2018] NZHC 2801

BETWEEN
B

Appellant

AND

T Respondent

Hearing: 23 October 2018

Appearances:

S N van Bohemen for the Appellant
M J Duggan for the Respondent
W F Freeman as Lawyer for the Children

Judgment:

30 October 2018

JUDGMENT OF CHURCHMAN J

This judgment was delivered by me on 30 October 2018 at 3:00 p.m. pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar
……………………………………

B v T [2018] NZHC 2801 [30 October 2018]

Introduction

[1] B appeals aspects of a parenting order made in the Family Court on

22 December 2017. B and the respondent T are the parents of twin nine-year-old boys, A and C.

[2] The Family Court judgment dealt with a large number of issues. The appellant has not challenged the majority of the Court’s rulings on matters including:

(a) care arrangements on birthdays;

(b) overseas travel;

(c) variation;

(d) transport;

(e) communication by email;

(f) telephone contact;

(g) counselling; and

(h) the ruling on the children’s surnames.

[3] The challenge is to the direction that the boys are in the care of the appellant during the school term on a fortnightly cycle from Thursdays at 3:00 pm until Tuesdays at 9:00 am. There was also a related challenge to the ruling that the school term care and contact regime continues until Christmas Eve and resumes again on
23 January.

[4] The relief sought by the appellant was an order for “equal shared care”. By this was meant an equal number of nights being spent with each parent during term time and the school holidays on a rotating seven day cycle, and equal care during the Christmas holidays on a 14 day rotating cycle.

[5] There was no dispute between the parties as to the issue that a shared parenting arrangement was appropriate and in the best interests of the boys, but the appellant’s position was that the Family Court Judge had erred as a matter of law in imposing a regime during school term time and at the start and finish of the Christmas school holidays that did not provide for exactly equal time with each parent.

[6] The specific grounds advanced by the appellant in support of his claim that the only regime that complied with the principles set out in s 5 of the Care of Children Act
2004 (“the Act”) was one of precise equality were:

(a)The Family Court perpetuated a parenting regime which did not facilitate ongoing consultation and cooperation between the children’s parents.

(b)The 22 December 2017 order disrupted the pre-existing continuity of care for the children.

(c)The 22 December 2017 order failed to preserve and strengthen the children’s relationship with their father and…

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 B v T

Details

AGLC: B v T [2018] NZHC 2801
Case: [2018] NZHC 2801
Decision Date: 30 October 2018

CaseChat Overview and Summary

B appealed against aspects of a parenting order made by the Family Court on 22 December 2017. B and T are the parents of twin nine-year-old boys, A and C. The appeal was focused on the direction that the boys are in the care of B during the school term on a fortnightly cycle from Thursdays at 3:00 pm until Tuesdays at 9:00 am, and a related challenge to the ruling that the school term care and contact regime continues until Christmas Eve and resumes again on 23 January. The appeal was dismissed. B's challenge was based on the proposition that a shared parenting arrangement was appropriate and in the best interests of the boys, but that the Family Court Judge had erred as a matter of law in imposing a regime during school term time and at the start and finish of the Christmas school holidays that did not provide for exactly equal time with each parent. B submitted that the Family Court perpetuated a parenting regime which did not facilitate ongoing consultation and cooperation between the children’s parents; the 22 December 2017 order disrupted the pre-existing continuity of care for the children; the 22 December 2017 order failed to preserve and strengthen the children’s relationship with their father and in fact weakened that relationship; the Family Court misstated the law as to the pre-requisites for an equal shared parenting regime; and the Family Court failed to take into account the decisions of the High Court in L v A and Shaw v Brown. The Court held that the Family Court Judge had not made an error of law. The regime imposed was one of shared parenting. There is no presumption that the concept of shared parenting always involves the children concerned spending a precisely equal amount of time with each parent. The older cases which imply that a cooperative and communicative relationship between parents is a pre-requisite for shared care are no longer good law. The effect of interparental conflict on the welfare of the children can still be a relevant matter in determining the details of the shared care arrangement that will be in the best interests of the children concerned and will ameliorate, to the extent possible, the potential adverse consequences of conflict, dysfunction and animosity between parents.

Orders