C v P - [2021] NZHC 3375

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,

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IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CIV-2021-443-29

[2021] NZHC 3375

UNDER the Care of Children Act 2004

IN THE MATTER

of an appeal against a decision of the Family Court at New Plymouth

BETWEEN

C

Appellant

AND

P

Respondent

Hearing: 21 October 2021

Appearances:

K M Marriner for Appellant No appearance for Respondent

Judgment:

9 December 2021

JUDGMENT OF ISAC J

Introduction

[1]This case involves a family that has sadly fractured.

[2] Natasha and Jade are teenagers. They live with their father, Paul. They do not wish to have any contact with their mother, Catherine.1

1 The names used in this judgment are not the real names of the parties involved.

C v P [2021] NZHC 3375 [9 December 2021]

[3] Theo is 17 years old, and another child of Paul and Catherine. He lives with his mother and has no wish to have contact with his father.

[4] Then there is Bella. She is now 18 and recently moved out of her father’s house after a period of conflict with him. Prior to moving out she did not wish to have contact with Catherine, but recently she started having regular contact with her mother. That in turn has led her younger sisters to say they do not wish to have contact with Bella.

[5] Against this backdrop, Catherine appeals a decision of the Family Court2 declining to make parenting and guardianship orders in relation to Natasha and Jade. The aim of those orders was to restore contact between Catherine and her two youngest daughters. Catherine contends that Paul has alienated the girls from her and is psychologically abusing them. She says that the Court ought to be appointed as the children’s guardians, and that a parenting order requiring contact between Catherine and the girls is needed. She says that financial penalties should be imposed on Paul if he does not facilitate that contact.

The family background in more detail

[6] Catherine and Paul were together for 24 years before separating for the first time in January 2019. During this initial period of separation Bella went to live with a paternal aunt because of conflict with Catherine.3 She and Paul then ended up living together in a rental property owned by the parties.4

[7] Catherine and Paul then reconciled and the whole family went on a trip to the United States in 2019. Shortly after, in July 2019, Paul and Catherine separated for the last time.

[8] The separation is characterised by entrenched conflict between the parents, which all children appear to have been exposed to. They are aware that their mother chose to end the relationship with their father, and also of the deep upset this caused him.

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 C v P

Details

AGLC: C v P [2021] NZHC 3375
Case: [2021] NZHC 3375
Decision Date: 9 December 2021

CaseChat Overview and Summary

C v P [2021] NZHC 3375 is a case involving a family that has sadly fractured. Catherine appealed a decision of the Family Court declining to make parenting and guardianship orders in relation to Natasha and Jade, her two youngest daughters. The Family Court found that the risks to the children of forcing contact with their mother outweighed any potential benefit. The appeal was dismissed, and the decision of the Family Court was upheld. The Court found that the Judge was not pre-determined and that the decision was not plainly wrong. The Court noted that the causes of the current fractures in the family were not solely Paul's responsibility and that the girls had a positive relationship with their mother before she separated from their father. The Court also found that the girls had expressed a view on their current living environment and that they would have their own view on boarding school. The Court concluded that a violent judicial response would not advance the welfare and best interests of either child in this case. It would do more harm than good.

Orders