CAM v SRM - [2012] NZHC 3519

NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO
11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION PLEASE SEE COURT/LEGISLATION/RESTRICTIONS-ON-PUBLICATIONS.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-6771 [2012] NZHC 3519

UNDER the Care of Children Act 2004

IN THE MATTER OF a without notice application for a stay of proceedings pending an appeal against a decision of Judge Druce delivered on 16
August 2012 at the Family Court at North
Shore

BETWEEN CAM Applicant

ANDSRM Respondent

Hearing: 18 December 2012

Counsel: N Schumacher for Applicant
Respondent in person
AE Ashmore for Children

Judgment: 18 December 2012

JUDGMENT OF BREWER J

This judgment was delivered by me on 18 December 2012 at 4:30 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

CAM V SRM HC AK CIV-2012-404-6771 [18 December 2012]

Introduction

[1] This is an application for an order for a stay of an interim parenting order made by Judge TH Druce in the Family Court at North Shore on 16 August 2012.1
The applicant has filed an appeal against the interim parenting order and has also taken action against it by way of judicial review proceedings. The appeal is due to be heard in this Court on 8 May 2013.

Background

[2] The applicant is the mother of three boys, B (aged 13), D (aged 11) and L (aged 10). The respondent is their grandfather and the father of the applicant.

[3] I do not need to go into the factual background. Suffice to say that the relationship between the applicant and the respondent is marked by conflict or disagreement, particularly in regard to the respondent having contact with the children. The Family Court Judge canvassed the background in detail in his
judgment before making the following order:2

An interim parenting contact order is made granting the children contact with their grandfather for one day on alternative weekends between 9 am and 5 pm on the following terms:

(a) The grandfather is to be responsible for all transporting of the
children to and from the mother’s home.

(b) When uplifting or returning the children, he is to remain at the roadside outside the mother’s home and the mother is to be responsible for getting the children out to the car and bringing them in from the car.

(c) The Applicant grandfather is not to consume alcohol at any time during the contact period or over the 12 hour period prior to contact.

(d) The contact day is to be on a Sunday if the parties are unable to agree on which day of the weekend is most convenient.

1 The application was made originally on a without notice basis but, on 14 November 2012, Woolford J directed that the respondent be served.
2 SRM v CAM FC North Shore FAM-2010-044-2520, 16 August 2012, at [33].

(e) The contact is to be on the weekend that does not conflict with…

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 CAM v SRM

Details

AGLC: CAM v SRM [2012] NZHC 3519
Case: [2012] NZHC 3519
Decision Date: 18 December 2012

CaseChat Overview and Summary

In the High Court of New Zealand, Auckland Registry, the case of CAM v SRM involved an application for a stay of proceedings pending an appeal against an interim parenting order. The applicant, CAM, sought a stay of an interim parenting order made by Judge Druce on 16 August 2012, granting the children contact with their grandfather, SRM, on alternative weekends. The applicant appealed the decision and filed judicial review proceedings, but sought a stay pending the outcome of the appeal.

The legal issues the court had to decide were whether the appeal rights would be rendered nugatory if a stay were not granted, and whether the applicant had made out grounds for the granting of the stay. The court considered the welfare of the children, the likelihood of the appeal being rendered nugatory if a stay was refused, the effect of a decision under appeal on the status quo, evidence of lack of bona fides, and the length of time before the appeal was likely to be heard.

The court concluded that the appeal would not be rendered nugatory if a stay was refused, and the granting of a stay would change the status quo, which had been in place for the past three months. The court also found that the children, who had been in contact with the respondent for the past three months, were in favour of the contact continuing. The court did not find any evidence of lack of bona fides in the filing of the appeal and the application for the stay. The court denied the application for an order granting a stay.

The court's reasoning was based on the welfare of the children, the likelihood of the appeal being rendered nugatory if a stay was refused, the effect of a decision under appeal on the status quo, evidence of lack of bona fides, and the length of time before the appeal was likely to be heard. The court found that the appeal would not be rendered nugatory if a stay was refused, and the granting of a stay would change the status quo, which had been in place for the past three months. The court also found that the children, who had been in contact with the respondent for the past three months, were in favour of the contact continuing. The court did not find any evidence of lack of bona fides in the filing of the appeal and the application for the stay. The court denied the application for an order granting a stay.

Orders