Baker v Harding - [2018] NZHC 2885

NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND
11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE judgments/

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-951 [2018] NZHC 2885

UNDER the Care of Children Act 2004

IN THE MATTER

of an appeal against a decision of Her Honour Judge Malosi in the Family Court at Auckland dated 18 April 2018

IN THE MATTER

of proceedings under the Care of Children
Act 2004

BETWEEN

THOMAS BAKER Appellant

AND

PATRICIA HARDING Respondent

Hearing: 10-11 October 2018

Counsel:

P Cobcroft and P Lavus for the Appellant
P A Fairbrother for the Respondent
S Palinich as Lawyer for the Child

Judgment:

7 November 2018

JUDGMENT OF GORDON J

This judgment was delivered by me
on 7 November 2018 at 12 noon, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

BAKER v HARDING [2018] NZHC 2885 [7 November 2018]

Introduction

[1] This case is about the care of the only child of the parties, Rose Baker, who is aged six and a half. Rose’s father, Mr Baker, appeals the decision of Judge Malosi in the Family Court at Auckland dated 18 April 2018.1 The Judge awarded primary care to Rose’s mother, Ms Harding, who had relocated with Rose from Auckland to Napier, with contact given to Mr Baker.2

[2] The appeal was heard together with a new application by Mr Baker under the Care of Children Act 2004 (the Act) dated 31 May 2018 seeking various orders, including an order that Rose relocate to Auckland to be in his day-to-day care, with contact given to Ms Harding (the new application). The new application was transferred to this Court from the Family Court.

Background

[3] Mr Baker and Ms Harding met in 2000 when they were aged 17 and 19 respectively. They entered into a de facto relationship the following year and eventually became engaged, although they did not marry. They lived together in Auckland.

[4] Rose was born on 24 March 2012 and the parties separated in January 2013 after Ms Harding became aware that Mr Baker had been having a long-term affair with his now wife, Deidre (Mrs Baker).

[5] At the time the parties separated, Rose was aged nine months. She remained in the primary care of Ms Harding and the parties established a regime of contact for Mr Baker.

[6] On 18 January 2014, at a formal proof hearing, a parenting order was made granting Ms Harding day-to-day care of Rose, with contact for Mr Baker every second weekend from Friday afternoon until Sunday afternoon, each Wednesday overnight

1 TB v PH [2017] NZFC 9454.
2 The names of the parties are anonymised. I have also anonymised the Christian name of their daughter, as well as the names of other family members and individuals who are mentioned in…

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 Baker v Harding

Details

AGLC: Baker v Harding [2018] NZHC 2885
Case: [2018] NZHC 2885
Decision Date: 7 November 2018

CaseChat Overview and Summary

Thomas Baker appeals a decision of Judge Malosi in the Family Court at Auckland dated 18 April 2018. The Judge awarded primary care of the parties' daughter, Rose, to Patricia Harding, with contact given to Mr Baker. The appeal was heard together with a new application by Mr Baker under the Care of Children Act 2004 (the Act) dated 31 May 2018 seeking various orders, including an order that Rose relocate to Auckland to be in his day-to-day care, with contact given to Ms Harding (the new application). The appeal was heard together with the new application. Mr Baker submits that the learned Family Court Judge erred in her determination of the best interests of Rose and, in particular: failed to have proper regard to, or placed insufficient weight on, the conduct of Ms Harding in determining the welfare and best interests of the child; failed to adequately have regard to the principles set out in s 5 of the Act when determining the welfare and best interests of the child; erred in determining that it was in the welfare and best interests of the child to remain in the day-to-day care of Ms Harding; failed to adequately carry out her multi-faceted analysis of the merits of Mr Baker's application for the child to relocate to Auckland; placed too much weight on Ms Harding's needs as opposed to the child's needs; and failed to give proper weight to the child's views. Mr Baker seeks: a direction that Rose relocate to Auckland (under s 46R of the Act); a direction providing for Rose to attend Karaka Primary School (under s 46R of the Act); a direction discharging the 24 January 2017 order requiring Rose to live in the Napier, Hastings area; and variation of the 18 April 2018 orders to provide for Rose to be in his day-to-day care, with contact for Ms Harding. Ms Harding opposes the appeal and the new application. I found that the appeal was not well founded. The new application was also dismissed. I made some adjustments to the orders made by Judge Malosi so as to refer to Edgecumbe (and Whakatane regarding flights) as opposed to Napier. I also discharged the direction of Judge Pidwell of 24 January 2017 and in its place imposed a similar order referring to Edgecumbe as opposed to Napier, Hastings.

Orders