Carter v Scott - [2020] NZHC 1447

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 TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV-2020-470-26

[2020] NZHC 1447

BETWEEN
CARTER

Appellant

AND

SCOTT

Respondent

Hearing: 17 June 2020

Appearances:

J W Howell and D Wilsher for Appellant A Brown for Respondent

R Adams as Lawyer for Child

Judgment:

26 June 2020

JUDGMENT OF LANG J

[on appeal under Care of Children Act 2004]

This judgment was delivered by me on 26 June 2020 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

Solicitors:
McKenzie Elvin Law, Tauranga

CARTER v SCOTT [2020] NZHC 1447 [26 June 2020]

[1] This appeal concerns arrangements relating to the day to day care of Aaron Scott, who was born on 17 September 2015.

[2] Aaron’s parents, Mr Scott and Ms Carter, have been embroiled in litigation regarding Aaron’s care arrangements since he was three months of age. On 14 February 2020 Judge S J Coyle delivered a decision in which he held that Aaron’s day to day care should henceforth be the responsibility of Mr Scott, who lives in Auckland.1 Up until that time Aaron had been living with Ms Carter, who lives in the Tauranga region. The Judge also dismissed a cross-application by Ms Carter for an order reducing the amount of contact Mr Scott could have with Aaron.

[3]Ms Carter appeals against both aspects of the Judge’s decision.

The Judge’s decision

[4] As would be expected in a case of this type, the Judge’s decision is a lengthy and comprehensive document that covers a multitude of issues. It will be necessary to discuss some of these when analysing the grounds Ms Carter advances on appeal. In summary, however, the Judge considered the evidence disclosed a clear pattern of conduct, attitudes and beliefs by Ms Carter that meant there were significant adverse risks for Aaron’s relationship with Mr Scott if he was to remain in her household.2

[5] The Judge then analysed the risks involved in requiring responsibility for Aaron’s day to day care to be transferred to Mr Scott against those that would remain if no such order was made. The Judge concluded a change of the day to day care arrangement was necessary for the following reasons:

[89] The conclusion that I have reached after considering all the evidence, the submissions of counsel, and after taking some days to weigh and carefully consider the competing issues, is that there are too many risks for Aaron, arising out of the maternal family’s lack of support of Aaron’s relationship with Mr Scott, the active denigration of Mr Scott to Aaron, and from Aaron’s continued exposure to conflict. These risks to Aaron’s long-term future welfare and best interests will continue if Aaron remains in Ms Carter’s care. The…

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 Carter v Scott

Details

AGLC: Carter v Scott [2020] NZHC 1447
Case: [2020] NZHC 1447
Decision Date: 26 June 2020

CaseChat Overview and Summary

The appeal concerns arrangements for the day to day care of Aaron Scott, who was born on 17 September 2015. Aaron's parents, Mr Scott and Ms Carter, have been embroiled in litigation regarding Aaron's care arrangements since he was three months of age. On 14 February 2020 Judge Coyle decided Aaron's day to day care should henceforth be the responsibility of Mr Scott, who lives in Auckland. Aaron had been living with Ms Carter, who lives in the Tauranga region. The Judge also dismissed a cross-application by Ms Carter for an order reducing the amount of contact Mr Scott could have with Aaron. Ms Carter appeals against both aspects of the Judge's decision. Ms Carter submits the Judge erred in failing to give weight to matters contained in a report prepared by a psychologist under s 133 of the Care of Children Act 2004. She submits the Judge selectively and inappropriately took into account unfavourable observations made about her by other Judges in earlier decisions. Finally, she submits the Judge did not have the benefit of the views of the child. The court dismissed the appeal, finding none of the grounds advanced in support of the appeal had been sustained. The appeal is accordingly dismissed.

Orders