Henderson v Morgan - [2013] NZHC 1957

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IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CIV 2012-412-000141

[2013] NZHC 1957

BETWEEN
HENDERSON

Appellant

AND

MORGAN

Respondent

Hearing: 5 August 2013

Counsel:

L A Andersen for Appellant R Cardoza for Respondent

N Williams, Lawyer for the Children A Chan, Lawyer to Assist the Court

Judgment:

5 August 2013

(ORAL) JUDGMENT (NO. 3) OF HEATH J

Solicitors:
Katie Lane Law, PO Box 5592, Dunedin Staley Cardoza, PO Box 5698, Dunedin Counsel:
L A Andersen, PO Box 5117, Dunedin N Williams, PO Box 43, Dunedin
A Chan, PO Box 1424, Dunedin

Introduction

[1] Ms Henderson appeals against a decision of the Family Court at Dunedin which had the effect of changing existing day-to-day care arrangements in respect of the two younger children, Alan and David. At the time of a judgment I gave on day- to-day care issues on 9 May 2013,¹ Alan was aged 13 years and David, eight.

[2] The appeal was brought against Judge Coyle’s decision to place the children in the primary day-to-day care of Ms Henderson’s former husband, Mr Morgan. I rejected that appeal in my earlier decision but reserved questions of contact for further argument.

[3] At a hearing, on the afternoon 9 May 2013, after delivery of my substantive judgment that morning, a case management conference was held at which a timetable was established for submissions to be filed on questions of contact. I am grateful to all counsel for the helpful memoranda received. I have heard from counsel today to supplement the submissions that have been made.

[4] In determining the day-to-day care issue in favour of Mr Morgan, I expressed a number of concerns about the quality of the relationship that Alan and David might expect with their father if Ms Henderson were to be granted day-to-day care. Those concerns are also relevant to questions of contact. I said:

[81] There are other aspects of the evidence that cause me concern. All directly or indirectly impact upon the quality of the relationship that Alan and David could expect to have with their father, if they were permitted to live with their mother. They are:

(a)Ms Henderson is not prepared to speak to or communicate directly with Mr Morgan over issues of guardianship or contact. She made it clear, in evidence, that that situation will continue until either Mr Morgan “repents” of allegations that he has previously made against her or God tells her it is time for her to do so. I think it is fair to say that Ms Henderson seems unable to focus discretely on the interests of the children, as opposed to her own. I do not believe there is any malevolent motive on Ms Henderson’s behalf. It is simply that she cannot comprehend that her own best interests could be different from those…

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 Henderson v Morgan

Details

AGLC: Henderson v Morgan [2013] NZHC 1957
Case: [2013] NZHC 1957
Decision Date: 5 August 2013

CaseChat Overview and Summary

Ms Henderson appeals against a decision of the Family Court at Dunedin, which altered the existing day-to-day care arrangements for her two younger children, Alan and David. The appeal concerns the decision to place the children in the primary day-to-day care of Mr Morgan, Ms Henderson's former husband. The High Court had previously rejected the appeal regarding day-to-day care but reserved questions of contact for further argument. The central issue before the court was whether to adjust the existing contact arrangements due to Ms Henderson's refusal to engage in the process and her stance on contact with Mr Morgan.

The court found that Ms Henderson's disengagement from the contact process necessitated adjustments to the existing contact arrangements. Mr Morgan had made several proposals for contact, including travel arrangements and communication methods, but Ms Henderson did not respond to these proposals. The court acknowledged that Ms Henderson's stance would typically result in dismissal of her appeal, but given the need to avoid subjecting the children to further litigation, the court decided to adjust the contact orders to accommodate the changed circumstances. The court also considered its jurisdiction to vary the existing contact arrangements under sections 143(1) and (4) of the Care of Children Act 2004, section 76(3) of the District Courts Act 1947, and rule 20.19 of the High Court Rules.

The court decided to dismiss the appeal but varied the contact arrangements. The contact order would allow Ms Henderson to exercise contact during particularised school holidays and the summer vacation in Paihia, with telephone contact permitted and up to three mid-term visits. Skype and email contact was also suggested, particularly with Alan who has a dedicated email account. Mr Morgan would bear the costs of the children's travel to Paihia. The court emphasized the need for Ms Henderson to confirm contact arrangements no less than four weeks prior to the proposed visits to provide certainty for the boys and to avoid wasting Mr Morgan's expenditure.

The court also decided not to make an order for costs, considering it inappropriate given the lengthy and difficult litigation. However, Ms Henderson was warned that she might be at risk for costs if she brought further proceedings to affect the parenting arrangements without genuine grounds based on a material change in circumstance. The court thanked all parties involved for their contributions and outlined the next steps for drafting the final order.

Orders