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Gordon v Campbell

Gordon v Campbell

Case [2015] NZHC 1264 8 June 2015

Appeal

Standing

Breach of Contract

Best Interests of the Child

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NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO
11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE COURT/LEGISLATION/RESTRICTIONS-ON-PUBLICATIONS.

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2014-419-000473 [2015] NZHC 1264

UNDER the Care of Children Act 2004

IN THE MATTER OF

an appeal against a decision of the
Family Court at Hamilton

BETWEEN

GORDON Appellant

AND

CAMPBELL Respondents

Hearing: 25 May 2015

Counsel:

J I Walker for the Appellant
C E Flynn for the Respondents

Judgment:

8 June 2015

JUDGMENT OF DUFFY J

This judgment was delivered by Justice Duffy on 8 June 2015 at 4.00 pm, pursuant to
r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Counsel: J I Walker, Hamilton

Solicitor: C E Flynn, Thames

GORDON v CAMPBELL [2015] NZHC 1264 [8 June 2015]

[1] The appellant is the birth mother of a seven year old boy who shall be known as R. On 22 July 2009 he was adopted by the respondents. The appellant now seeks to have contact with R. As the adoption has severed the appellant’s legal ties with R, she now comes within the category of persons under the Care of Children Act 2004 (“the Act”) who require leave from the Family Court to bring an application for an
order allowing contact with a child.1 Her application for leave was opposed by the

respondents. The application was refused in the Family Court by Judge Brown. She now seeks to appeal against the refusal to grant leave.2

[2] The appellant has not sought leave from the Family Court to appeal against Judge’s Brown’s decision. The respondents contend that such leave is necessary, whereas, the appellant contends that it is not. I heard argument from the parties on questions of jurisdiction and of the merits of the appeal.

[3] The appellant also requires leave to appeal out of time.3 The respondents did not oppose her being given an extension of time for bringing the appeal. This issue is easily resolved. The appellant provided a reasonable and acceptable excuse for the appeal being late. The ultimate test is whether the extension of time would meet the overall interests of justice.4 I am satisfied that this test is met. Accordingly, leave to bring the appeal out of time is given.

[4] The hearing proceeded on the basis that I would hear and determine the parties’ arguments on both jurisdiction and the merits of the appeal. Thus, the issues for determination are whether I have jurisdiction to hear the appeal in the absence of
leave from the Family Court; and if I do, where do the merits of the appeal lie.

1 See s 47(1)(e) of the Care of Children Act 2004; contact with a child is achieved by a parenting order made under s 48 which determines the time or times when specified persons have the role of providing day-to-day care for, or may have…

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 Gordon v Campbell

Details

AGLC: Gordon v Campbell [2015] NZHC 1264
Case: [2015] NZHC 1264
Decision Date: 8 June 2015

CaseChat Overview and Summary

Gordon v Campbell was an appeal against the Family Court's refusal to grant the appellant, the birth mother, leave to bring an application for contact with her son R, who had been adopted by the respondents, R's paternal grandmother and her husband. The appellant's appeal was opposed by the respondents who argued that the Family Court should have required the appellant to obtain leave from the Family Court before bringing the appeal to the High Court. The appellant argued that the refusal to grant leave by the Family Court constituted a final determination of her proceedings in that Court and so she was entitled to appeal as of right. Duffy J found in favour of the appellant on this jurisdictional issue and held that the appeal could proceed as of right. The substantive issue for determination was whether the Family Court had correctly exercised its discretion in refusing the appellant leave to bring her application for contact with R. The appellant argued that the Family Court had failed to apply the correct test for whether to grant leave under s 47(1)(e) of the Care of Children Act 2004. Duffy J disagreed and found that the Family Court had applied the correct test and had exercised its discretion correctly in refusing the appellant leave to bring her application. Duffy J held that the appellant had failed to provide sufficient evidence to establish that she had an appropriate and sustainable interest in promoting the welfare and best interests of R. In the absence of such evidence, the appellant had also failed to show that there was an arguable basis for her to have contact with R. The appeal was dismissed with costs to be determined.

Orders