GF v EF - [2019] NZHC 3140

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-2019-470-40

[2019] NZHC 3140

UNDER Section 143 of the Care of Children Act 2004

BETWEEN

GF

Appellant

AND

EF

Respondent

Hearing: 29 October 2019

Counsel: Appearance:

LK Speed and K Dyer for respondent T Bartlett for the child

GF, appellant in person

Judgment

29 November 2019

JUDGMENT OF FITZGERALD J

This judgment was delivered by me on 29 November 2019 at 3 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: Holland Beckett, Tauranga
T Bartlett, Tauranga

To: GF, Tauranga

GF v EF [2019] NZHC 3140 [29 November 2019]

Introduction

[1] The appellant father and respondent mother were in a de facto relationship from 2010 until November 2012 when they married. There is one child of that marriage, born in 2014, who I will refer to as AF. She is now five. The appellant and respondent separated in early 2018.

[2] On 19 March 2019, Judge Cook in the Family Court delivered a judgment in which she made a final protection order in favour of the respondent, and parenting orders which gave day-to-day care of AF to the respondent.1 She also ordered the respondent could relocate from Tauranga to Whakatane from January 2020.

[3] The appellant sought, and was granted, leave to appeal the relocation orders made in the Family Court.2 This judgment determines that challenge to the relocation orders.

[4] The appellant’s primary challenge to the relocation orders is that AF’s views on relocation were not sought, and accordingly were not considered by the Family Court. He also says circumstances have changed. He now lives in Katikati, which is further from Whakatane than Tauranga. Moreover, he says the acrimony between him and the respondent has decreased, and there is now less of a need to allow relocation to provide space between him and the respondent.

[5] The respondent says AF was adequately consulted on her views, and in any event is too young to give meaningful views on relocation. She says the respondent moved to Katikati with full knowledge the relocation orders had been made and cannot now claim he is prejudiced by that move.

[6] Lawyer for the child, Ms Bartlett, appeared in both the Family Court hearing and on appeal. Prior to the appeal hearing, and with the knowledge of both parents, she met with and spoke with AF about the proposed relocation. While AF expressed some concerns about how far it was, Ms Bartlett expressed concerns that these answers may have been “coached” by the appellant. She also submits that given AF’s age, it

1 F v F [2019] NZFC 1590.
2 GF v EF [2019] NZHC 1744.

is not realistic to expect her to…

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 GF v EF

Details

AGLC: GF v EF [2019] NZHC 3140
Case: [2019] NZHC 3140
Decision Date: 29 November 2019

CaseChat Overview and Summary

In the High Court of New Zealand Tauranga Registry, the appeal of GF against the decision of the Family Court to allow the relocation of the child, AF, from Tauranga to Whakatane was dismissed. The appellant argued the relocation orders should not have been made as the child's views were not considered, the appellant's circumstances had changed, and the need to reduce conflict between the parties was overstated. The court found that while there was a failure to provide the child with a reasonable opportunity to express her views on relocation, this was remedied prior to the appeal. The court also found that the relocation would not have a substantial effect on the existing contact regime between the appellant and the child, and that the need to reduce conflict between the parties played a minor role in the Family Court's judgment. The appeal was dismissed, and no order as to costs was made between the parties.

Orders