G v N - [2018] NZHC 2763

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 TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV-2018-470-000052

[2018] NZHC 2763

UNDER the Care of Children Act 2004

IN THE MATTER OF

an appeal against a decision of the Family Court in Whakatane

BETWEEN

G

Appellant

AND

N

Respondent

Hearing: 28 August 2018

Appearances:

Appellant in Person

L M Ebbers for Respondent E L Ross Counsel for Child

Judgment:

25 October 2018

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 25 October 2018 at 9.00 am
pursuant to R 11.5 of the High Court Rules Registrar / Deputy Registrar Date………………………..

G v N [2018] NZHC 2763 [25 October 2018]

Introduction

[1] This appeal arises from proceedings in the Family Court concerning contact arrangements between Mr N and his now five-year-old daughter, A. Mr N’s former partner, Ms G, has had day-to-day care of A since the couple separated in 2013, just months after A’s birth. The case was classified as complex by Judge S J Coyle, who has managed it since September 2017. In March 2018, Ms G filed an application asking that Judge Coyle recuse himself. The Judge declined to do so. Ms G appeals that decision.

[2] At a telephone conference with Lang J it was agreed that the appeal would be treated as one against a substantive decision under s 143(1) of the Care of Children Act 2004 (CoCA) for which leave is not required.1 The appeal is therefore a general appeal to which the principles of Austin, Nichols & Co Inc v Stichting Lodestar apply.2 It is for Ms G to persuade me that the Judge made an error and, if so, she is entitled to my assessment afresh.

[3] Ms G is presently unrepresented and appeared at the hearing of the appeal in person. Although fluent in English, it is not her first language. This was evident in both her written and oral submissions; as originally expressed they were prolix and sometimes difficult to follow. Her grounds of appeal can be summarised as being that the Judge:

(a)wrongly treated the case as involving alienation;

(b)erred in his assessment of the risk posed by Mr N to A;

(c)failed to protect Ms G and A from harm by Mr N, including through the use of the legal system;

(d)enforced contact between A and Mr N when there was a final protection order in place;

1 G v N HC Auckland CIV-2018-470-52 [Minute of Lang J].
2 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.

(e)wrongly held that Ms G had ‘refused’ to provide evidence of bias on the part of the Judge. In oral submissions, however, Ms G made it clear that the essential complaint…

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 G v N

Details

AGLC: G v N [2018] NZHC 2763
Case: [2018] NZHC 2763
Decision Date: 25 October 2018

CaseChat Overview and Summary

This appeal concerns the refusal of Judge Coyle to recuse himself from proceedings regarding contact arrangements between the appellant, Ms G, and the respondent, Mr N, and their now five-year-old daughter, A. Ms G has had day-to-day care of A since the couple separated in 2013. The appeal hinges on whether the Judge was correct in his refusal to recuse himself. The central legal issue was whether a fair-minded observer, reasonably informed about the legal system and the case, would have a reasonable doubt that the Judge might not be able to decide the issue before the court impartially.

The court examined the Judge's comments at the hearings on 7 November 2017 and 17 January 2018. It found that the Judge's statements carried a risk of conveying that non-compliance with court orders would certainly result in Ms G losing the day-to-day care of A. The court was particularly concerned by the Judge's implication that non-compliance could result in Ms G being imprisoned, and that A would be placed in Mr N's care, despite Mr N not seeking this outcome and it being impractical. The court concluded that the Judge's comments had the effect of reinforcing the impression that non-compliance of any kind and to any extent would certainly result in A being removed from Ms G's care.

The appeal is allowed. The Judge's refusal to recuse himself is set aside, and the matter is remitted to the Family Court for further consideration by a different judge.

Orders