BLH v MNL - [2014] NZHC 194

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-4772 [2014] NZHC 194

BETWEEN BLH Appellant

ANDMNL Respondent

Hearing: 12 February 2014

Appearances: S R Jefferson QC for appellant
J E McLennan for respondent
J R Robertson for child

Judgment: 18 February 2014

JUDGMENT OF FOGARTY J

In accordance with r 11.5 I direct that the Registrar endorse this judgment with the delivery time of 4.00 pm on Tuesday 18 February 2014

Solicitors:
Simon Jefferson QC, Auckland
Holmden Horrocks, Auckland
Unity Chambers, Auckland

BLH v MNL [2014] NZHC 194 [18 February 2014]

Introduction

[1] The parties to this marriage are mother (appellant) and father (respondent), of a son. Currently, by their agreement, both have access to the son. Each of them regards the terms of access as unsatisfactory. Both have applied to the Family Court for Parenting Orders. The mother has included in her argument, allegations that the husband is violent. She relies on allegations of violence against her. The husband has replied by arguing she has been violent to him.

Relevant law and process to date

[2] By law, violence is of considerable relevance to the terms of any Parenting Orders. This is by reason of the Domestic Violence Act 1995, replicated in the Care of Children Act 2004 in ss 59, 60 and 61. Proof of domestic violence will be relevant to any Parenting Orders, even if the domestic violence has never been against children.

[3] Mr Jefferson QC explained that therefore in this context, an application for Parenting Orders raises a preliminary question: was there domestic violence? If the answer is yes, that is a “funnel” down which the analysis thereafter continues. Sections 59, 60 and 61 provide:

59 Application of section 60

(1) Section 60 applies to proceedings—

(a) relating to an application under this Act for any of the following:

(i) an order about the person or persons who have the role of providing day-to-day care for a child:

(ii) an order about contact with a child:

(iii) the variation or discharge of, or of any condition of, an order in subparagraph (i) or subparagraph (ii); and

(b) in which there is a violent party.]

(2) Section 60 applies to proceedings specified in subsection (1) whether or not those proceedings also relate to any other matter (whether arising under this Act or any other enactment).

60 Procedure for dealing with proceedings in section 59(1)

(1) Repealed. (2) Repealed.
(3) In proceedings to which this section applies in accordance with section 59 (the proceedings), the court must not make—

(a) an order giving the violent party the role of providing day- to-day care for the child to whom the proceedings relate; or

(b) any order allowing the violent party contact (other than supervised contact) with that child.]

(3A) Subsection (3) is subject to subsection (4).

(4) In the situation in subsection (3), the Court may make an order in subsection (3)(a) or (b) if, after complying with section 61, the Court is satisfied that the child…

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 BLH v MNL

Details

AGLC: BLH v MNL [2014] NZHC 194
Case: [2014] NZHC 194
Decision Date: 18 February 2014

CaseChat Overview and Summary

The case of BLH v MNL involved a dispute between the mother (appellant) and father (respondent) over the terms of parenting orders for their son. Each party claimed the other was violent, and both sought a variation of the existing parenting orders. The Family Court had already made findings of domestic violence against both parties. The mother appealed the Family Court's findings of her own violence to the High Court. The father argued that the High Court lacked jurisdiction to hear the appeal. The court considered the statutory provisions governing appeals from Family Court decisions, particularly sections 143 and 174 of the relevant Acts. The court found that the findings of domestic violence under section 60 did not constitute final determinations of the proceedings, and therefore the High Court did not have jurisdiction to hear the mother's appeal against those findings. The appeal was struck out and costs were reserved.

The court found that the statutory policy was to limit appeals from Family Court decisions to final determinations of the proceedings. The findings of domestic violence under section 60 were preliminary findings that did not finally determine the parenting orders applications. While the findings may impact the section 61 assessment, they did not constitute final determinations of the proceedings themselves. Therefore, the High Court did not have jurisdiction to hear the mother's appeal against those findings, and the appeal was properly struck out. The reasoning of Venning J in a prior case was followed over MacKenzie J, as it better aligned with the statutory policy of limiting appeals to final determinations.

Orders