Carter v Carter

[2015] NZHC 3256

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 WHANGAREI REGISTRY

CIV-2015-488-53 [2015] NZHC 3256

BETWEEN

JOHN FRANCIS CARTER

Applicant

AND

NATALIE JANE CARTER Respondent

Hearing:	On the papers (memoranda received 15 and 16 December 2015)
Appearances:	S Henderson and G Coutts for Applicant L J Postlewaight for Respondent
Judgment:	16 December 2015

JUDGMENT OF LANG J

[on application for stay of execution of judgment]

This judgment was delivered by me on 16 December 2015 at 2.15 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

CARTER v CARTER [2015] NZHC 3256 [16 December 2015]

[1]      Mr Carter applies for a stay of execution of my final judgment delivered on

14 December 2015.1   He contends that a stay of execution is in the best interests of his children, and that refusal to grant a stay would render his appeal rights nugatory.

[2]      Mr  Carter  contends  that  the  children  will  be  confused  if  they  return  to Australia knowing that their father’s appeal is yet to be heard.  I consider the same situation will apply in the event that they are required to remain in New Zealand pending disposition of the application for leave to appeal.  Either way, the children will know that matters have not been finally concluded.  I therefore regard this issue as neutral.

[3]      I do not accept that Mr Carter’s appeal rights will be rendered nugatory if a stay is not granted.   Mr Carter will be able to prosecute his appeal.   One of the conditions I have imposed on Mrs Carter is that she files an undertaking to abide by and comply with any orders and directions made by this Court and the Court of Appeal.  Registration of this Court’s orders in Australia will also enable the orders to be enforced.

[4]      I  consider,  however,  that  Mrs  Carter’s  position  may  be  irretrievably compromised in the event that a stay is granted.  In my interim judgment, I accepted the evidence given by Mrs Carter’s employer that her employment will be terminated in  the  event  that  she  is  unable  to  take  up  her  new  position  in  January 2016.2

Although I obviously cannot speak for the Court of Appeal, it is unlikely that the application for leave to appeal could be heard before February 2016.   A stay of execution is therefore likely to bring about the termination of Mrs Carter’s employment.  That would remove one of the most important reasons underpinning Mrs Carter’s desire to return to Australia.  It would also remove one of the principal reasons why I permitted relocation to occur.  In that sense Mrs Carter’s appeal rights

will be rendered nugatory in the event that a stay is granted.

1      Carter v Carter [2015] NZHC 3182. Mr Carter brings the application under r 12(3) of the Court of Appeal (Civil) Rules 2005, which gives this Court and the Court of Appeal concurrent jurisdiction to order the stay of execution of any civil judgment pending disposition of an appeal to the Court of Appeal.

2 At [32].

[5]      For these reasons I have concluded that a stay of execution of my final judgment would not be appropriate.   If Mrs Carter elects to return to Australia in January 2016 she will do so in the knowledge that the Court of Appeal may direct her to bring the children back to New Zealand in the event that it grants leave for her husband’s appeal to be heard.  It will be for her to determine whether she is prepared to run that risk.

[6]      The application for stay of execution is dismissed.

Lang J

Solicitors:

Henderson Reeves, Whangarei

Counsel:

L J Postlewaight, Whangarei
Hugh J Drummond, Whangarei