DN v An - [2021] NZHC 1093

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-1733

[2021] NZHC 1093

UNDER the Care of Children Act 2004

IN THE MATTER

of an appeal against the decision of Judge K Muir in the North Shore Family Court dated 7 August 2020

BETWEEN

DN

Appellant

AND

AN

Respondent

Hearing: 23 February 2021

Counsel:

R Rao for Appellant

C E A Townsend for Respondent S Houghton for Children

Judgment:

17 May 2021

JUDGMENT OF BREWER J

This judgment was delivered by me on 17 May 2021 at 11 am pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Inder Lynch (Manukau) for Appellant Urlich Milne (Auckland) for Respondent

DN v AN [2021] NZHC 1093 [17 May 2021]

Introduction

[1] DN and AN are the parents (father and mother, respectively) of two children, ZN, a girl aged eight years, and ON, a boy aged five years. DN and AN are separated.

[2] On 31 January 2020, the Family Court made orders by consent giving effect to an agreement by DN and AN as to interim contact which permitted DN to have unsupervised contact with the children as follows:

(a)Week 1 from Thursday after school until Sunday 11.00 am.

(b)Week 2 from Friday after school until Sunday 11.00 am.

[3] DN applied to the Family Court seeking a shared care order with either a 7/71 split or a 2/2/5/52 split of care. AN opposed the application and contended that she should have a day-to-day care order in her favour and that DN’s contact with the children should remain the same.

[4] On 7 August 2020, Judge K Muir made a final parenting order with the following orders and directions:3

(a)[AN] will have the role of providing day to day care of the children.

(b)[DN] shall have contact with the children as set out below.

School Term Time

(c)A fortnightly cycle as follows:

(i)Week one from Tuesday after school until Wednesday morning with the children to be collected from and delivered back to school; and

(ii)Week one from Friday after school until start of school on the following Monday with the children to be picked up from and returned to school; and

1      That is, where the two parents would have custody on alternating weeks.
2      That is, where the first parent would take two days, then the second parent would take two days, then the first parent would take five days, and then the second parent would take five days.
3      DN v AN [2020] NZFC 5787 at [97].

(iii)Week two from Thursday after school until Friday morning with the children to be picked up from school and returned to school.

Term School Holidays

(d)Term school holidays will be…

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 DN v An

Details

AGLC: DN v An [2021] NZHC 1093
Case: [2021] NZHC 1093
Decision Date: 17 May 2021

CaseChat Overview and Summary

DN and AN are the parents of two children, ZN and ON. DN appealed the final parenting order made by Judge K Muir, which gave AN the role of providing day-to-day care of the children and set out the contact arrangements for DN. DN argued that Judge Muir should have made a shared care order as he sought. He submitted that the decision to decline to implement a shared care arrangement was wrong in both fact and law. AN supported the Judge’s decision. The lawyer for the children submitted that the current parenting arrangements were unlikely to protect ZN’s emotional wellbeing on a long-term basis. After considering the evidence and submissions, the court found that the Judge’s decision was available to him on the evidence and dismissed the appeal.

Orders