Evans v Roberts - [2020] NZHC 206

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 HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2019-419-0083

[2020] NZHC 206

UNDER the Care of Children Act 2004

IN THE MATTER OF

an appeal against a decision of the Family Court at Hamilton

BETWEEN

MS EVANS

Appellant

AND

MR ROBERTS

Respondent

Hearing:
26 July 2019

Further submissions received 11, 17 and 18 February 2020

Appearances:

J I Walker for Appellant S A Lister for Respondent

Judgment:

19 February 2020

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 19 February 2020 at 3 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date: ...................................

Solicitors:J I Walker, Hamilton S A Lister, Hamilton

EVANS v ROBERTS [2020] NZHC 206 [19 February 2020]

Introduction

[1] The appellant, Ms Evans, appeals against a judgment of Judge Collin, given on 15 March 2019 in the Family Court at Hamilton.1 The Judge declined Ms Evans’ application pursuant to s 46R Care of Children Act 2004 (“COCA”) to relocate her and the respondent, Mr Roberts’, three children to Florida, in the United States.

Approach on appeal

[2] Ms Evans’ appeal, for which she requires leave, is brought pursuant to s 143 COCA.2 There is no objection to leave, the issue of relocation is important and I grant leave accordingly.

[3] The appeal is a general appeal, and the appellate court must consider the merits of the case afresh.3 The weight I give to the Family Court’s reasoning is a matter for my assessment. Ms Evans is entitled to judgment in accordance with my opinion.4 At the same time, Ms Evans is required to identify the respects in which the judgment under appeal is said to be in error, and to convince me I should reach a different view.5

Background

[4] Ms Evans, who is from the United States, came to New Zealand on a holiday in 2009, aged 24. She met Mr Roberts in June 2010, when he was aged 57. Ms Evans and Mr Roberts married in September 2010 and lived in Ngaruawahia. Ms Evans and Mr Roberts separated in May 2016, in circumstances referred to below.

[5] A significant aspect of this case is the violence Mr Roberts inflicted on Ms Evans, as to which the Judge accepted Ms Evans’ evidence. The first incident of physical violence was in May 2011. Others followed up until May 2016, as did behaviour such as taking Ms Evans’ bank cards and driver’s licence, immobilising her car, taking the home modem and such like.

1      [Evans] v [Roberts] [2019] NZFC 2003.
2      Care of Children Act 2004, s 143(2).
3      Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [31].
4 At [32].
5      Taipeti v R [2018] NZCA 56, [2018]…

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 Evans v Roberts

Details

AGLC: Evans v Roberts [2020] NZHC 206
Case: [2020] NZHC 206
Decision Date: 19 February 2020

CaseChat Overview and Summary

In Evans v Roberts, the High Court of New Zealand considered an appeal by Ms Evans against a Family Court decision that declined her application to relocate her and the respondent, Mr Roberts', three children to Florida, United States. Ms Evans sought to appeal on the grounds that the Family Court judge gave excessive weight to certain principles in determining the children's welfare and best interests, under the Care of Children Act 2004. The legal issues included whether the Family Court judge erred in considering the children's relationship with Mr Roberts and his whānau, as well as the maintenance of their Māori heritage.

The High Court found that there was no evidence to suggest that the children's relationship with Mr Roberts or his whānau was important to them, or that they would foster the children's Māori heritage. Additionally, the court noted the failure to comply with section 6 of the Care of Children Act 2004, which requires giving a child a reasonable opportunity to express a view on a matter affecting them. The court decided to remit the matter back to the Family Court for reconsideration, taking into account the expert psychologist evidence, the children's views, and any other relevant evidence or matters. The court emphasised that the decision should be made in the best interests of the children and should not be delayed for two or three years. However, if Ms Evans did not intend to relocate the children if permitted to do so, no further steps would be taken on the application.

Orders