DKP v MJM - [2017] NZHC 109

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 NEW PLYMOUTH REGISTRY

CIV-2017-443-5 [2017] NZHC 109

IN THE MATTER of the Care of Children Act 2004

BETWEEN

DKP Appellant

AND

MJM Respondent

Hearing: on the papers

Counsel:

G J Wilson for Appellant
R M Webb for Respondent
K A McKenzie for the children

Judgment:

9 February 2017

JUDGMENT OF ELLIS J

I direct that the delivery time of this judgment is
12.15 pm on the 9th day of February 2017

DKP v MJM [2017] NZHC 109 [9 February 2017]

[1] On 16 December 2016 Judge Barkle in the Family Court at New Plymouth made guardianship orders under s 46R of the Care of Children Act 2004 (the COCA) permitting the parties’ three children (J, X and A) to relocate permanently to Brisbane with their mother (M) “on or after 14 January 2017”.1 The children’s father, P, wishes to appeal that decision.

[2] The principal reasons for permitting the relocation were (in no particular order):

(a) M’s demonstrable job opportunities in Brisbane (and the absence of them in New Plymouth, where she is presently unemployed), and the consequent economic benefits for the family;

(b)the fact that M has always been the children’s primary care-giver and the parent with whom they had the closer and more dependent emotional relationship (although all three regarded their relationship with their father as important);

(c) the improved family support for M and the children in Brisbane;

(d)the respective parenting capacities of M and P (P is still suffering the significant and long-term after-effects of a 2011 car accident);

(e) the wishes of X and A, who want to relocate (whereas J wants to stay in New Plymouth);

(f) the agreement between the parties that it was not in the children’s

interests to separate them (and J’s concurrence with that view); and

(g)the beneficial effect of distance on the parties’ conflicted relationship and the ensuing benefits to the children; and

1 MJM v DKP [2016] NZFC 10544.

(h)M’s willingness to ensure that the children returned to visit their father in the school holidays and her commitment to using the child support paid by him for that purpose.

[3] On 25 January 2017 P made a without notice application for a stay of the relocation order, pending his appeal from Judge Barkle’s decision. A notice of appeal was filed along with the stay application.

[4] The application was referred to me as Duty Judge. In the minute I issued I

said:

I accept that, in the event that Mr [P's] appeal were to succeed, it would be difficult for this Court on appeal to "undo" a relocation that has already occurred. I do, however, have some reservations about granting a stay in the circumstances disclosed on the (limited) material before me. Having read…

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 DKP v MJM

Details

AGLC: DKP v MJM [2017] NZHC 109
Case: [2017] NZHC 109
Decision Date: 9 February 2017

CaseChat Overview and Summary

The appeal in this case was brought by DKP, the father, against a decision of Judge Barkle in the Family Court permitting the permanent relocation of the parties' three children to Brisbane with their mother, MJM. The primary basis for the relocation was MJM's job opportunities in Brisbane, her role as the children's primary caregiver, and the improved family support available there. Additionally, two of the children wished to relocate, and the parties had agreed that it was not in the children's best interests to separate them. The father sought a stay of the relocation order pending his appeal, which was granted on strict terms. The primary legal issue before the court was whether the father should be granted leave to appeal the Family Court's decision. The court considered various factors, including the potential long-term implications for the children, the father's delay in filing the appeal, the mother's significant steps towards relocation, and the children's apparent opposition to the appeal. The court found that permitting the appeal would not be in the children's best interests and declined to grant leave. As a result, the interim stay was lifted, and the scheduled hearing was vacated.

The court's decision was grounded in the principles governing applications for leave under section 143 of the Care of Children Act 2004. The court noted that while relocation decisions are generally appealable, the requirement for leave suggests that not all such decisions should be subject to appellate review. The court emphasised that the paramount consideration in granting leave is the welfare and best interests of the child. In this case, the court found that the father's grounds for appeal were not seriously arguable and that the delay in filing the appeal, combined with the mother's significant preparations for relocation, weighed against granting leave. The court also considered the children's apparent hostility to the continuation of the matter and their need for stability. Ultimately, the court concluded that permitting the appeal would not serve the children's best interests, and leave was denied.

Orders