CH v SM - [2015] NZHC 1599

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

THE-FAMILY-COURT/LEGISLATION/RESTRICTION-ON-PUBLISHING- JUDGMENTS

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-2693 [2015] NZHC 1599

UNDER the Care of Children Act 2004

IN THE MATTER OF

an appeal against a decision of the Family
Court

BETWEEN

CH Plaintiff

AND

SM Defendant

Hearing: 7 July 2015

Appearances:

G J Wagner for Appellant
Respondent in Person

Judgment:

7 July 2015

ORAL JUDGMENT OF DUFFY J

Solicitors:
McMahon Butterworth Thompson, Auckland

Counsel:
Gabrielle J Wagner, Barrister, Auckland

CH v SM [2015] NZHC 1599 [7 July 2015]

[1] This is an appeal from a decision of the Family Court making a parenting order under the Care of Children Act 2004. The parties are agreed that I should allow the appeal and remit the matter to the Family Court to be reconsidered, which is what I propose to do.

[2] In March 2014 the appellant applied to the Family Court regarding the interpretation of the parenting order that was then in place for specific care arrangements of the parties’ child, who I shall refer to as S. There was a problem regarding the arrangements which related to when, at the conclusion of the Christmas summer holiday period, S would be handed to one or other of her parents. The order was unclear as in clause (h)(v) it simply provided “thereafter the normal term time arrangements will resume”. The parties could not agree on the actual date on which in any year the normal arrangement was to resume, and so each found the phrase to be unclear and in need of clarification.

[3] When the matter came before the Family Court a number of steps were taken. These ultimately led to a judicial settlement conference on 22 August 2014. Following that conference the Judge issued a minute dated 25 August 2014. At [2] and [3] of the minute the Judge recorded the measure of agreement that had been reached at the settlement conference. Then at [4] the Judge said:

The parties have not been able to reach agreement on the interpretation of the words in (h)(v) “thereafter the normal term time arrangements will resume.”

[4] This led the Judge to adopt the following procedure, which appears at [5] of the minute. He directed no further affidavit evidence was to be filed. He directed a memorandum to be filed by counsel. Each counsel was to put forward the interpretation that each wished to advance for the interpretation of the phrase in (h)(v) of the order. The matter was then to be placed back before the Judge.

[5] The Judge noted the amendment to the law which permitted him to preside at a disputed hearing, even though he had presided at the settlement conference. The Judge recorded that the parties had not been able to reach agreement on the meaning of the key…

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.

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Details

Case: [2015] NZHC 1599
Decision Date: 7 July 2015

CaseChat Overview and Summary

This is an appeal from a decision of the Family Court regarding the interpretation of an existing parenting order. The issue was whether the Family Court Judge was correct in his decision that the parenting order should be interpreted in a way that adopted the Mother's calendar for the resumption of the normal term time arrangements. The Judge had directed that the calendars be provided to the school. The appeal was allowed because the Judge had exceeded his jurisdiction by making an order on the papers, without giving the parties the opportunity to be heard at a hearing. The appeal was also allowed because the Judge had not given any reasons for his decision. It was held that where a decision on an opposed matter will be viewed as adverse by one of the parties and against the interests of the child, some reasons should be given to explain the outcome. This is to avoid the impression that the outcome has been reached arbitrarily. The matter was remitted back to the Family Court for reconsideration. The Court also made a finding that where there is a discrepancy between the parenting order and the attached calendar, then the body of the order should be paramount.

Orders