Barnes v Amery
[2025] NZHC 1529
•11 June 2025
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE
CIV-2024-454-73
[2025] NZHC 1529
UNDER Care of Children Act 2004 IN THE MATTER
of an appeal against an Interim Order of the Family Court
BETWEEN
CLIFF BARNES
Appellant
AND
ELIZABETH AMERY
Respondent
Hearing: 3 June 2025 Appearances:
A Brown for Appellant
L M Faimalie and T G Nosa for Respondent C E A Townsend, Lawyer for Child
Judgment:
11 June 2025
JUDGMENT OF McHERRON J
[1] Amias is the eight-year-old son of Elizabeth and Cliff.1 Each of them wants to be his day-to-day carer. But, because they live so far apart from each other, the Family Court has been asked to choose between them. It is a difficult choice. Amias currently lives in the Tararua District with Cliff and Elizabeth’s aunt in her house. Elizabeth seeks to relocate Amias to her home in Hamilton.
[2] In the Family Court, Judge J F Moss heard evidence and submissions over two days in January and April 2024. On 10 May 2024, she issued interim parenting and
1 In accordance with the usual convention in respect of Family Court appeals, and in consultation with counsel, the names of the parties have been changed.
BARNES v AMERY [2025] NZHC 1529 [11 June 2025]
contact orders. The Judge made orders for Amias to move to Hamilton. It is this interim parenting order that Cliff has appealed and which is the subject of my decision.
[3] The Judge ordered that Amias must move to his mother no later than King’s Birthday weekend 2024 (early June). However, as it was “misplaced in the Registry”, counsel and the parties did not receive the judgment until 2 August 2024, long after the Judge had intended it to take effect.
[4] It was an interim order because the Judge found the evidence was insufficient for her to make final orders as to Amias’s day-to-day parenting. There was a lack of evidence on Amias’s present and future needs, other than impressions and reporting by his parents and teacher.2 The fact Amias’s parents lived at such a distance from each other meant there were limits on the extent to which the relationship with his non-resident parent could develop.3 The Judge said “it appears inevitable that [Amias] will have insufficient contact with one of his parents, because they are determined to reside so far from one another.”4 For this reason, the Judge acknowledged the burden of her decision on Amias would be greater than usual.
[5] For the Court to finalise matters, further reporting was required as to Amias’s needs, either by way of social worker report focusing on Amias’s adjustment, or a psychological assessment under s 133 of the Care of Children Act 2004.
[6] Cliff sought leave to appeal the interim parenting order and sought a stay. By minute dated 27 August 2024, Judge Moss directed a stay and granted leave to appeal. She was conscious that if she did not stay the matter, Amias would have to move to his mother’s care. Then, if there was a successful appeal, it could lead to the matter being remitted back to the Family Court for further hearing, following which the Court may then require Amias to return to his father’s care. The Judge did not consider that the appeal would be rendered nugatory by a move to Hamilton, but she did consider on balance that the adversity to Amias in potentially moving twice was more significant than delaying any move. Subject to compliance with contact arrangements,
2 [Amery v Barnes] [2024] NZFC 5557 [Decision under Appeal].
3 At [70].
4 At [61].
the Judge stayed her decision. She also directed a psychological assessment under s 133, the report for which has recently been completed.5
[7] Reluctant as I am to disturb the careful decision of a highly experienced Family Court Judge, I allow Cliff’s appeal for the reasons below.
Grounds for appeal
[8]Cliff advances his appeal on the following grounds:
(a)That the Judge erred in making an interim order that Amias relocate to Hamilton, despite an acknowledged lack of evidence focused on him as an individual child, leaving the Judge unable to consider how best to meet his needs.
(b)The Judge erred in making an interim parenting order, given the acknowledged incomplete evidence, which changed Amias’s status quo and relocated him without any imminent or serious threat of risk to his welfare.
(c)The Judge erred in finding that there was sufficient evidence to relocate Amias from the status quo without evidence about the impact upon him.
(d)The Judge predetermined the substantive application by making an order relocating Amias to an unknown environment and school, without any established risk to his wellbeing within his current home environment.
The Family Court’s interim decision
[9] After setting out the background, relevant elements of which I have summarised above, the Judge described procedural difficulties resulting in the matter being truncated across two hearing days in January and April 2024. The Judge
5 The parties agreed that I would not be provided with the s 133 report for the purposes of the present appeal.
described her 10 May 2024 decision as the first occasion on which the Court had considered Amias’s day-to-day care (as opposed to contact arrangements).6 However, the Court did not have the benefit of evidence from an expert to enable it to make a “comparative analysis of care primarily of one parent or another”.7
[10] The Judge recorded that “[s]ince December 2022 it has been clear that either [Amias] will live with his mother and have little contact with his father, or he will live with his father and have little contact with his mother”.8 But the capacity for the Court to make a principled decision related to Amias’s best interests was compromised by the absence of evidence in relation to the living circumstances of either parent. The Judge recognised that the only basis upon which the Court could make the decision between the two competing caregivers is to consider the capacity of each, demonstrated by the evidence, to meet the needs of their son, in terms of the principles by which best interests are defined in the Care of Children Act. The Judge found there is no reason to doubt the capacity of either parent to offer a good enough environment for Amias to live in. Nor was there any reason to doubt that each parent, separately, could provide for basic care of Amias. The issues the Judge focused on were safety,9 and “the future focused capacity of each parent to nourish Amias’s relationship with the other.”10
[11] The Judge did not interview Amias. She had regard to submissions by his lawyer, Ms Townsend, who provided careful reports of his statements about his parents and about his experiences with them. The Judge was concerned Amias had been exposed to “extreme levels of disruption, dysregulated emotion and conflict”. She was troubled there had been no further exploration of his development. The Judge noted Amias’s teacher praised Cliff’s connection with his son, but noted “there is a need to consider him at greater depth, given that he must reside with one parent or the other without a fully expressed relationship with the distant parent.”11
6 Decision under Appeal, above n 2, at [10].
7 At [12].
8 At [12].
9 See Care of Children Act 2004, ss 5(a) and 5A and Decision under Appeal, above n 2, at [62].
10 Section 5(c) and Decision under Appeal, above n 2, at [12].
11 At [14].
[12] After summarising the case for each parent, the Judge referred to the extensive family violence records, finding that neither parent had adequate modelling or teaching in the resolution of family conflict.12 There were several family violence attendances by police during Amias’s infancy and toddlerhood. A protection order remains in force, which means Cliff must exercise caution in any contact with Elizabeth, and which has made it harder to arrange contact.
[13] At [43] to [54] of the Decision under Appeal, the Judge set out a reasonably detailed history of arguments and confrontation between the parents, often resulting in police involvement, between March 2016, before Amias was born, to August 2019, about the time of his third birthday. Reflecting on this history in the context of the parents’ oral evidence, the Judge recorded her “significant concern that the father’s reactivity remains thinly disguised and close to the surface”.13 She said she “remain[ed] concerned that when extremely distressed, the father’s capacity to manage his rage will be impaired.”
[14] The Judge had no doubt that the home where Amias has been living with his father and his mother’s aunt since the end of 2022 is suitable for him.14 She recorded that Elizabeth agrees the father’s home offers “a great lifestyle”,15 and there are “no concerns about the physical environments”.16 The Judge accepted that Cliff “has been dedicated to supporting [Amias’s] schooling, and to offering his skills in sports and practical activities with the school.” The Judge noted evidence that Cliff has “learned to extract himself from risky situations before giving voice to his reactivity”.17 The Judge considered that while Elizabeth “appeared…to have learned that [Amias] needs his parents to cooperate [, t]he father does not appear to have learned that need.”18 The Judge found “it is more likely than not that the mother will quickly improve consultative skills and a respectful dealing with the father, more so than the father can.”19
12 At [39].
13 At [55].
14 At [58].
15 At [64].
16 At [64].
17 At [59].
18 At [60].
19 At [63].
[15] The Judge noted that if Amias moves from Cliff’s day-to-day care, he will lose day-to-day contact with the aunt but said that “[t]he evidence has not assisted me to understand the importance of this link.”20
[16] The Judge also noted that Amias would have to move from the school that he had been attending for several years but considered “[t]his can be managed.”21 The Judge commented that, in accordance with Elizabeth’s wishes, and in light of Amias’s potential neurodiversity (as yet not fully explored) “it may be that a Steiner approach to education will more easily meet him, where he is at, than conventional learning.”
[17]“On balance” the Judge concluded that Amias:22
…is safer, in terms of personal and emotional development in his mother’s care. She has learned insight, she plans his development, and has been reliable and constant in terms of a very onerous contact regime. Her travel burden has been a great deal more than the father’s.
[18] The Judge made an interim parenting order in favour of Elizabeth but found “the evidence is insufficient for the Court to make final orders”.23 In particular there was a “lack of evidence focussed on [Amias] as an individual child”. This left the Judge “unable to consider how best to meet his needs, when the evidence contains so many elements focussed on history and none on the present and future, other than impressions and reporting by parents, and Amias’s teacher.”24
Submissions of counsel for Elizabeth
[19] On behalf of Elizabeth, Ms Faimalie submitted that the appeal should be dismissed, the stay lifted, and Judge Moss’s 10 May 2024 decision upheld. However, if the Court were minded to allow Cliff’s appeal, Ms Faimalie submitted that the High Court should “take carriage” of the proceeding and determine the matter, instead of the Family Court.
20 At [65].
21 At [65].
22 At [66].
23 At [70].
24 At [70].
[20] When I asked Ms Faimalie to explain the jurisdictional basis for the High Court taking carriage of the proceeding from the Family Court, she referred to r 20.19 of the High Court Rules 2016. That rule provides as follows (with my emphasis):
20.19 Powers of court on appeal
(1)After hearing an appeal, the court may do any 1 or more of the following:
(a) make any decision it thinks should have been made:
(b) direct the decision-maker—
(i)to rehear the proceedings concerned; or
(ii)to consider or determine (whether for the first time or again) any matters the court directs; or
(iii)to enter judgment for any party to the proceedings the court directs:
(c) make any order the court thinks just, including any order as to
costs.
(2)The court must state its reasons for giving a direction under subclause (1)(b).
(3)The court may give the decision-maker any direction it thinks fit relating to—
(a) rehearing any proceedings directed to be reheard; or
(b) considering or determining any matter directed to be considered or determined.
(4)The court may act under subclause (1) in respect of a whole decision, even if the appeal is against only part of it.
(5)Even if an interlocutory or similar decision in the proceedings has not been appealed against, the court—
(a) may act under subclause (1); and
(b) may set the interlocutory or similar decision aside; and
(c) if it sets the interlocutory or similar decision aside, may make in its place any interlocutory or similar decision the decision-maker could have made.
(6)The powers given by this rule may be exercised in favour of a respondent or party to the proceedings concerned, even if the respondent or party did not appeal against the decision concerned.
[21] Ms Faimalie particularly relies on the power under r 20.19(1)(a) for the Court on appeal to make any decision it thinks should have been made or, under r 20.19(1)(c) to make any order the Court thinks just.
[22] Although Elizabeth accepts further information is required, Ms Faimalie submits the evidence before the Family Court was sufficient to justify it making the
interim parenting order. However, Ms Faimalie submits that the onus was on Cliff to adduce the evidence that was required to fully support his position, prior to the hearing in the Family Court.
[23] Ms Faimalie emphasises that in the context of relocation, there is no presumption in favour of maintaining the “status quo”, namely where the child is currently residing.25 Rather, everything depends on an individualised assessment of the particular circumstances affecting the particular child.26
[24] Ms Faimalie submits that the jurisdiction of the Family Court to make interim parenting orders was not limited by the incomplete evidence before the Judge, as the matter before Judge Moss was a substantive, rather than an interim, hearing. Despite the gaps in the evidence, Ms Faimalie submits that the Judge’s decision correctly considered the principles relating to Amias’s welfare and best interests, as provided in s 5 of the Care of Children Act.
Submissions of lawyer for the child
[25] On behalf of Amias, Ms Townsend submits that if the appeal is upheld, this Court lacks jurisdiction to take over the carriage of the ongoing Family Court proceeding. Although the High Court has parens patriae jurisdiction for urgent guardianship matters, for example relating to medical procedures, that does not extend to a standard parenting decision such as in the present case.
[26] Transfer powers exist in s 14 of the Family Court Act 1980, which provides for the Family Court to transfer proceedings to the High Court in certain circumstances but provides no power for the High Court to self-initiate such a transfer. Similarly, s 125 of the Care of Children Act provides for the Family Court to transfer proceedings to the High Court but does not give the High Court power to self-initiate a transfer.
[27] Ms Townsend offers a detailed summary of Amias’s views as expressed at various stages during the Family Court proceedings. She summarises these views as consistently indicating his preference to remain living with his father. However,
25 Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [23]; L v B [2022] NZHC 1537 at [43].
26 Kacem v Bashir, above n 25, at [24].
Ms Townsend said that Amias also enjoys his time with his mother. If he could choose, Ms Townsend submits Amias would like to spend an equal amount of time with both his parents. However, to do so is impracticable given the distance between the respective parents’ homes, and the need for Amias to attend a single school only.
[28] Ms Townsend submits that there is a lack of evidence that Amias is unsafe or inadequately cared for by his father. Therefore, she says it is not in Amias’s best interest to move to his mother’s care in Hamilton on an interim basis. He receives excellent support at his current school. The disruption to his schooling would be detrimental to his learning needs.
[29] As Amias could be returned back to his father’s care when the Family Court makes final orders, it is consistent with principles in s 5 of the Care of Children Act that he remain living with his father on an interim basis pending the final decision of the Family Court. Ms Townsend also submits that this also accords with Amias’s own consistently expressed views.
My assessment
[30] The appeal, brought under s 143 of the Care of Children Act, is a general appeal, by way of rehearing.27 Cliff bears the onus of satisfying the Court that a different outcome should have been reached in the first instance. I must make my own assessment of the merits of the case, and if I consider the Family Court’s decision is wrong, I may correct it.
[31] The jurisdiction of the Family Court to make interim parenting orders is contained in s 49 of the Care of Children Act:
49 Interim parenting orders
(1) At any time before an application for a parenting order is finally determined in a court, a Judge may make an interim parenting order that has effect until—
(a)a specified date; or
(b)a specified event; or
27 B v B [Relocation] [2008] NZFLC 1083.
(c)it is replaced by—
(i)another interim order; or
(ii)a final order.
(2) However, a Judge must not make an interim order unless the Judge is satisfied that an interim order serves the welfare and best interests of the child better than a final order.
[32] While no criteria for making an interim parenting order are set out in that section, all parties agree the governing principles are the paramountcy of the child’s welfare and best interests as relevantly set out in s 4, as well as the principles relating to a child’s welfare and best interests as set out in s 5:
4Child’s welfare and best interests to be paramount
(1)The welfare and best interests of a child in his or her particular circumstances must be the first and paramount consideration—
(a)in the administration and application of this Act, for example, in proceedings under this Act; and
(b)in any other proceedings involving the guardianship of, or the role of providing day-to-day care for, or contact with, a child.
(2)Any person considering the welfare and best interests of a child in his or her particular circumstances—
(a)must take into account—
(i)the principle that decisions affecting the child should be made and implemented within a time frame that is appropriate to the child’s sense of time; and
(ii)the principles in section 5; and
(b)may take into account the conduct of the person who is seeking to have a role in the upbringing of the child to the extent that that conduct is relevant to the child’s welfare and best interests.
(3)It must not be presumed that the welfare and best interests of a child (of any age) require the child to be placed in the day-to-day care of a particular person because of that person’s gender.
…
5Principles relating to child’s welfare and best interests
The principles relating to a child’s welfare and best interests are that—
(a) a child’s safety must be protected and, in particular, a child must be protected from all forms of violence (as defined in sections 9(2), 10, and 11 of the Family Violence Act 2018) from all persons, including members of the child’s family, family group, whānau, hapū, and iwi:
(b) a child’s care, development, and upbringing should be primarily the responsibility of his or her parents and guardians:
(c) a child’s care, development, and upbringing should be facilitated by ongoing consultation and co-operation between his or her parents, guardians, and any other person having a role in his or her care under a parenting or guardianship order:
(d) a child should have continuity in his or her care, development, and upbringing:
(e) a child should continue to have a relationship with both of his or her parents, and that a child’s relationship with his or her family group, whānau, hapū, or iwi should be preserved and strengthened:
(f) a child’s identity (including, without limitation, his or her culture, language, and religious denomination and practice) should be preserved and strengthened:
(g) a child must be given reasonable opportunities to participate in any decision affecting them.
[33] One of the most unfortunate features of the present case is the delays in resolving decisions concerning Amias’s parenting. It is now nearly 17 months since the Family Court hearing concerning Amias’s day to day parenting commenced. And it is 13 months since the date of the Judge’s interim parenting order. Regrettably, as discussed, that order was not communicated to the parties for a further three months or so. These delays do not sit easily with the principle in s 4(2)(a)(i) that decisions affecting the child should be made and implemented within a timeframe that is appropriate to the child’s sense of time.28
[34] I do not consider it was appropriate to make an interim parenting order resulting in Amias’s transfer when further evidence was required. As Ms Brown emphasised on behalf of Cliff, making disruptive changes to a child’s day-to-day
28 Care of Children Act, s 4(2)(a)(i).
parenting location and schooling is inconsistent with the need for continuity in the child’s care, development and upbringing. This is contrary to the principle in s 5(d) of the Care of Children Act. The Judge had insufficient regard for that principle in her assessment of the factors going to Amias’s welfare and best interests.
[35] The jurisdiction to make an interim parenting order is undoubtedly wide. However, there is a need for caution where, as here, such an order will result in significant disruption to a child’s life, including their schooling and their connections with family members, friends, and other members of their community. There is an additional need for caution where the interim order may need to be reversed once the Court has the full facts. In Fletcher v McMillan, Hammond J conservatively applied the former legislative framework applicable to interim orders changing primary care arrangements.29 But his conclusion that an interim parenting order disturbing the status quo may only be made when the child’s welfare is “distinctly put at risk” is limited to its particular facts.30 I gratefully adopt Walker J’s summary of the principles as they have developed in the case law over the past 30 years, in G S v Family Court at Manukau:31
(a)The purpose of an interim order is to provide some certainty and security until the matter can be fully considered.
(b)Sections 4 and 5 of the Care of Children Act apply without gloss, but with the acknowledgment that the court is considering the child’s welfare and best interests with an incomplete picture and pending determination of substantive issues.
(c)The discretion to make an order, whilst seemingly very wide, must be exercised in a manner which is consistent with the purposes of the Act.
(d)The ultimate question is whether an interim order is required to safeguard, and preferably promote, the welfare of the child.
29 Fletcher v McMillan [1996] 2 NZLR 491 (HC) at 493.
30 At 493.
31 G S v Family Court at Manukau [2022] NZHC 555 at [70].
(e)It is only the practical circumstances in which an application for interim orders comes before the court that provides any additional fetter on the extent of the court’s jurisdiction. The application is generally heard urgently. The inquiry is inevitably narrower than a full custodial hearing. Those circumstances inform the decision to be made by the Judge rather than place any jurisdictional fetter on it.
[36] Section 4(5) makes it mandatory for the Court to take into account, in a case- specific way, those of the principles specified in s 5 that are relevant focusing on the particular child and their particular circumstances.32 In a case where they are appliable, it is desirable to refer to all the s 5 principles and indicate which are not relevant before discussing those that are relevant in more detail.33
[37] Yet nowhere in her interim decision did the Judge expressly set out her consideration of the s 5 principles, apart from s 5(a) and 5(c).
[38] In respect of s 5(a), the Judge’s decision correctly emphasised the need to protect Amias’s safety. However, rather than being based on current evidence indicating concerns about Amias’s safety while living with his father, the Judge’s safety concerns were largely based on evidence that is now several years old. In particular, the Judge referred to the period between 2016–2019 when there had been concerns about violence, mental health challenges and confrontations between Amias’s parents, when they were living together. The Judge did not identify any material safety concerns relating to the period following late 2022 to the present, when Amias has been living with Cliff and his mother’s aunt.
[39] The principle in s 5(b) is not particularly relevant to the choice of primary carer in the present case, involving a choice between Amias’s parents.
[40] The Judge focused her decision heavily on the principle in s 5(c), summarising it as “the future focussed capacity of each parent to nourish [Amias’s] relationship
32 Kacem v Bashir, above n 25, at [18]; Brown v Wilson [2016] NZHC 262 at [56].
33 Brown v Wilson [2016] NZHC 262 at [56], citing Bashir v Kacem [2010] NZCA 96, [2010] NZFLR 865 at [54].
with the other”.34 She considered that “it is more likely than not that the mother will quickly improve consultative skills and a respectful dealing with the father, more so than the father can.”35
[41] As this is a general appeal, I am able to give judgment in accordance with my opinion even if that involves an assessment of fact and degree and entails a values judgment.36 I am also entitled to consider further evidence.37 In her assessment of the parents’ respective abilities to engage in ongoing consultation and co-operation, the Judge did not have the benefit of Amias’s own recent descriptions of the way his parents talked about each other, as were helpfully summarised in Ms Townsend’s appeal submissions. These descriptions reveal an imbalance in negative comments to Amias by one parent about the other, which on its face is inconsistent with the Judge’s findings as to Elizabeth upholding the principle in s 5(c) as regards her comments towards Amias about Cliff. For myself, I am not persuaded that this evidence supports the Judge’s findings in relation to this principle.
[42] Moreover, I accept Ms Brown’s submission that the Judge’s reasons do not adequately address the principle in s 5(d) that “a child should have continuity in his or her care, development, and upbringing”. The Judge’s acknowledgement that there was a lack of evidence based on the present and future for Amias, that more evidence was required, and her willingness to stay her interim orders pending the result of the present appeal, all suggest that the interim parenting order was premature. The Judge’s interim order would materially disrupt Amias’s continuity of care, development and upbringing. A more complete picture of the present and future was required before ordering such a significant change affecting Amias’s circumstances.
[43] In relation to s 5(e), it is of course necessary for Amias to continue to have a relationship with both of his parents. Improvements to contact arrangements, or the parents’ residential arrangements to facilitate this relationship, can be explored by the Family Court. The disruption to Amias’s relationship with his mother’s aunt, if he
34 Decision under Appeal, above n 2, at [12]
35 At [63].
36 Kacem v Bashir, above n 25, at [32].
37 At [32].
were required to relocate to Hamilton, can also be considered further under this principle.
[44] In relation to s 5(f), again, this principle relating to Amias’s identity, was not explored by the Judge in her interim orders decision. There was evidence before the Judge from Amias’s school principal that is relevant in this regard. That evidence reveals aspects of Amias’s identity as expressed at school. Requiring him to shift schools could be detrimental to the preservation and strengthening of his identity, including through disruption to relationships he has built with his friends and teachers. Yet this was left unexplored by the Judge, apart from indicating that schooling changes could be “managed”.
[45] I accept Ms Brown’s submission that the Judge had insufficient evidence to conclude that it was in Amias’s best interests to relocate to live with his mother. The evidence did not permit the Judge to fairly balance Amias remaining in the Tararua District with Cliff against the possibility of him moving to Hamilton to live with Elizabeth without evidence to enable consideration of matters including:
(a)the school that Amias would be attending if he moved to Hamilton;
(b)his potential living situation in Hamilton;
(c)the impact moving to Hamilton might have on Amias; or
(d)Amias’s views on staying or moving.
[46] With regard to the last of these factors, Amias’s views, I do not consider that the Judge gave Amias sufficient opportunity to express his views on such a significant matter affecting him. Nor do I consider that the Judge has adequately taken his views into account.
[47]In addition to s 5(g), s 6 of the Care of Children Act provides:
6Child’s views
(1AAA) The purpose of this section is to implement in New Zealand Article 12 of the United Nations Convention on the Rights of the Child.
(1)This subsection applies to proceedings involving—
(a)the guardianship of, or the role of providing day-to-day care for, or contact with, a child; or
(b)the administration of property belonging to, or held in trust for, a child; or
(c)the application of the income of property of that kind.
(2)In proceedings to which subsection (1) applies,—
(a)a child must be given reasonable opportunities to express views on matters affecting the child; and
(b)any views the child expresses (either directly or through a representative) must be taken into account.
[48] The Judge did not interview Amias for the purposes of the hearing that led to her interim orders. In part this seems to have been due to his age. He is now nearly nine years old. Ms Townsend informed me that Amias told her he is keen to meet the Judge. Indeed, Amias thinks the Judge will like him. As summarised by Ms Townsend, Amias has recently expressed the view to her that he wants to stay with his Dad “no matter what”. The Judge’s decision does not refer to or reflect Amias’s views about his day-to-day care at all. It needed to do so.
[49] I consider that the preferable approach according with Amias’s interests and welfare was to let him to continue his existing care arrangements in a place that he knows, with his current schooling and friends and family. This parenting arrangement ought to have been left in place while the Court obtained the further evidence it required to properly balance Amias’s interests and welfare and the psychological impact a sudden change in circumstances, schooling, parenting and residence would have had on him.
[50] I do not accept that it is appropriate for this Court to take carriage of the current proceeding. Cliff’s appeal relates to the interim order only. The appropriate course is for the matter to be remitted back to the Family Court for it to continue to manage,
hear and determine outstanding elements of the current proceeding. A further right to appeal to this Court will be available following the Family Court’s final decision.
[51] To that end, the parties need to focus on getting the proceeding ready so that it can be heard and finally determined by the Family Court.
[52] Ms Townsend suggested a possible timetable for that to occur. Both Ms Faimalie and Ms Brown said this would be workable:
(a)each party to have 21 days to contemporaneously file evidence in response to the psychologist’s s 133 report, plus updating evidence;
(b)each party to have a further 14 days to file evidence in reply;
(c)a two day fixture is to be allocated on the soonest practicable date thereafter with timetabling for written submissions working backwards from that date.
[53] Ms Townsend also emphasised the need for both parties to provide hair follicle tests with the resulting reports to be available no later than the time of the resumed hearing.
[54] An opportunity for the Judge to speak with Amias will also need to be factored in to matters to be considered for the resumed hearing.
[55] As part of my disposition of this appeal I direct the parties to promptly file a joint memorandum in the Family Court seeking timetable directions to this effect. This is to ensure that a substantive hearing can be allocated as soon as possible without further delays. If such a consent memorandum is filed shortly that is likely to be dealt with at or prior to the next scheduled directions conference, which I understand is in early July.
Conclusion
[56] The appeal is allowed. The interim order relating to Amias’s day-to-day parenting is set aside. For the avoidance of doubt, this decision does not affect the position in relation to contact, which was not the subject of the appeal. Contact arrangements as agreed and ordered are therefore to continue undisturbed. The parties are to make every effort to ensure that contact occurs as ordered by the Family Court, to promote Amias’s welfare and best interests, including so he can maintain his relationship with both parents.
McHerron J
Solicitors:
Treadwell Gordon, Solicitors, Whanganui for Appellant Timothy Jacob Law, Palmerston North for Respondent Fitzroy Chambers, Auckland for Child
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