Drake v Drake - [2023] NZHC 2390

NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004 AND SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980, THE NAMES OF THE PARTIES IN THIS DECISION HAVE BEEN ANONYMISED AND REFERENCES TO THEIR OCCUPATIONS AND PLACES IN WHICH THEY LIVE HAVE BEEN REMOVED

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2023-443-24

[2023] NZHC 2390

UNDER the Care of Children Act 2004

IN THE MATTER

of an appeal against a decision from the Family Court at [ ]

BETWEEN

MRS DRAKE

Appellant

AND

MR DRAKE

Respondent

Hearing: 21 August 2023

Counsel:

V A Crawshaw KC and B Jefferson for Appellant R S Stannard for Respondent

C A Gelston – lawyer for the child

Judgment:

30 August 2023

JUDGMENT OF RADICH J

Table of Contents
Paragraph

Factual background [12]

Family Court decision [22]

The strength of existing and future bonding. [24]

Parenting attitudes and abilities [26]

Availability for and commitment to quality time with the child [27]

DRAKE v DRAKE [2023] NZHC 2390 [30 August 2023]

Support for continued relationship with other parent  [28]
Security and availability of home environment  [30]
Availability and suitability of role models and positive and/or
negative effects of wider family  [31]
Provision for physical care and help and the material wealth of the parents     [32]
Stimulation and new experiences  [33]
Educational opportunity  [34]
Wishes of the child  [35]
Shared care  [37]
Parent wanting contact where there is a reluctant primary caregiver                [38]
Section 5 considerations  [42]
(a)Section 5(a) – Protection of a child’s safety  [43]
(b)Section 5(b) – A child’s care, development and upbringing
should primarily be the responsibility of his parents.  [44]
(c)Section 5(c) – A child’s care, development and upbringing should be facilitated by ongoing consultation and cooperation
between parents  [45]
(d)Section 5(d) – A child should have continuity in his or her care,
development and upbringing.  [46]
(e)Section 5(e) – A child should continue to have a relationship
with both of his or her parents  [47]
(f)Section 5(f) – A child’s identity should be preserved and

strengthened. [48]

The Judge’s conclusions[49]

Legal principles [52]

Approach to appeal [52]

Care of Children Act 2004 [56]

Leave to appeal [66]

The issues on appeal [67]

Equal shared care as the starting point [69]

Weight accorded to the s 5(d) principle [77]

(a)Competing risks [81]
(b)The status quo principle – factoring in risks to Jethro if he is
required to move [93]
(c)Basing an equal sharing parenting order upon the willingness

or otherwise of a parent to shift [101]

Weight afforded to the child’s views [114]

Cooperation and communication between the parties [127]

The child’s cultural identity [130]

Summary of findings [135]

Reassessment based upon findings [138]

Orders [153]

[1] Jethro Drake (Jethro) is eight years old. He lives with his mother, Mrs Drake (the appellant) in Town A. Jethro’s father, Mr Drake (the respondent) lives in Town B. Mr Drake has contact with Jethro, in Town B, during several…

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 Drake v Drake

Details

AGLC: Drake v Drake [2023] NZHC 2390
Case: [2023] NZHC 2390
Decision Date: 30 August 2023

CaseChat Overview and Summary

In Drake v Drake, Mrs Drake and Mr Drake, the parents of Jethro, appealed against a decision of the Family Court that ordered Jethro to relocate from Town A, where he has lived since 2018, to Town B, where Mr Drake lives, to live in his day-to-day care. The appeal was brought under s 143 of the Care of Children Act 2004 and concerned the Family Court's approach to the statutory provisions under s 5 of the Act, as well as the weight afforded to Jethro's views. The appeal was allowed. The Family Court's order was set aside and replaced with an order that Jethro is to remain in Town A and that his day-to-day care is to be shared equally between his parents on a week-by-week basis. The Court held that the Family Court had erred in its assessment of the principle relating to continuity in Jethro's care, development and upbringing and in the weight that was afforded to Jethro's views. The Court concluded that Jethro's care, development and upbringing would be best met by him remaining in Town A with his parents sharing his care equally, and by Mrs Drake undertaking counselling to address the ways in which she had projected negative views to Jethro of Mr Drake and to address ways in which she can support Jethro in having a good relationship with Mr Drake.

Orders