Bevan v Firth - [2023] NZHC 3887

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-003039

[2023] NZHC 3887

IN THE MATTER of the Judicial Review Procedure Act 2016

AND IN THE MATTER

of a review of the decision of the District Court dated 18 January 2023

BETWEEN

BEVAN and ROSSI

Appellants

AND

FIRTH

First Respondent

GIBSON and GIBSON

Second Respondents

Hearing via VMR: 21 December 2023

Appearances:

P J Dale KC for Applicants

Y Clarisse for First Respondent L Soljan for Second Respondent A Cooke Counsel for the child

Judgment:

22 December 2023

JUDGMENT OF ANDERSON J

This judgment was delivered by me on 22 December 2023 at 3.00 pm pursuant to Rule 11.5 of the High Court Rules 2016.

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

B and R v F [2023] NZHC 3887 [22 December 2023]

Introduction

[1] Karl turned four on 9 December 2023.1 Yesterday, I heard as a matter of urgency an appeal against a Family Court decision of Judge McHardy of 11 December 20232 in a submissions only hearing declining to vary contact orders made for him. The urgency arises because Karl is scheduled under the present orders to go from Auckland to Nelson on 28 December 2023 to stay with Mr and Mrs Gibson (his maternal grandfather and his wife) and their two primary aged children. The appellants, Messrs Bevan and Rossi, who are his two present primary caregivers, want this instead to only be a three-hour supervised visit.

[2] The appellants’ grounds of appeal point to stated errors by the Family Court in considering the totality of the evidence; errors in the Judge’s characterisation of the evidence; and errors in his characterisation of the parties’ positions. However, it is fair to say that Mr Dale KC’s submissions for the appellants before me were in substance the same as before the Family Court:

(a)He says the application to vary was brought in response to an incident which led to Karl being harmed when he was in the care of the Gibsons in August 2023. He says it is common ground that there was an injury but there are competing versions as to what actually occurred. He says there is at least the possibility of deliberate harm and the events justify a variation.

(b)Mr Dale says that the outcome of the appeal does not turn on whether inflicting of the harm was accidental or deliberate. Rather, the issue is whether there will be further and unnecessary trauma caused to Karl by having to make a visit that all the evidence suggests he does not wish to occur.

[3] The appellants’ position is supported by Ms Firth, Karl’s maternal grandmother. The Gibsons and counsel for the child oppose the appeal.

1 In this…

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 Bevan v Firth

Details

AGLC: Bevan v Firth [2023] NZHC 3887
Case: [2023] NZHC 3887
Decision Date: 22 December 2023

CaseChat Overview and Summary

Bevan and Rossi appealed against a Family Court decision declining to vary contact orders made for their four-year-old ward, Karl. The appeal was heard as a matter of urgency by Anderson J, who dismissed the appeal on 22 December 2023. The appeal was brought under section 143 of the Care of Children Act 2004. The appellants sought a variation of the present order so that Karl would no longer visit the Gibsons in Nelson and the duration of proposed visits to Puhoi would be limited. They claimed the visit was dangerous, traumatic, and unnecessary, especially in light of an alleged incident in August 2023, where Karl was injured while in the care of the Gibsons. The appellants' submissions focused on the possibility of further and unnecessary trauma caused to Karl by having to make a visit that all the evidence suggested he did not wish to occur. The court considered the welfare and best interests of the child to be the first and paramount consideration. The court found that the evidence provided by the appellants was not sufficient to substantiate their claims. The court found that there was a credible explanation for the bruise on Karl's arm, and that many of the statements made by Karl were contradictory and unreliable. The court also found that Karl's views could not be seen in isolation from the circumstances in which he lived and the context of the adult relationships around him. The court concluded that the Judge's evaluation was correct, and that the relief sought was not in the welfare and best interests of Karl. The court dismissed the appeal and ordered the appellants to pay the costs of the appeal.

The final orders of the court are as follows: (1) The appeal is dismissed; and (2) The appellants are to pay the costs of the appeal. The parties are requested to agree on a timetable for the costs and advise the court of the timetable agreed.

Orders