Hopkins v Jackson - [2022] NZHC 2956

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,

PLEASE SEE https://www.justice.govt.nz/family/about/restriction-on- publishingjudgments/

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2022-485-447

[2022] NZHC 2956

BETWEEN
HOPKINS

Appellant

AND

JACKSON

Respondent

Hearing: 9 November 2022

Appearances:

E Blincoe for Appellant

N Levy KC, A Esera, and A Jeremich for Respondent S Hughes for Child

Judgment:

11 November 2022

JUDGMENT OF McQUEEN J

[Stay Application]

[1] Ms Jackson1 seeks an urgent partial stay of my decision dated 13 October 2022 directing that the care arrangements in place regarding both parties’ daughter, Kara, revert back to the pre-existing 2:2:3 arrangement (the care order) and that Kara is to attend School A (the school order).2

[2] Ms Jackson is seeking leave to appeal this decision to the Court of Appeal. She seeks to stay the execution of part of the decision pending the outcome of her application for leave to appeal, and, if successful, the appeal itself.

1 The names of the parties in these proceedings have been anonymised pursuant to s 139 of the Care of Children Act 2004.
2 Hopkins v Jackson [2022] NZHC 2649.

HOPKINS v JACKSON [2022] NZHC 2956 [10 November 2022]

[3] The stay is only sought in relation to the school order. Ms Jackson acknowledges that she has no right to appeal the school order, being an order made pursuant to s 46R of the Care of Children Act 2004 (the Act).3 However, the relief Ms Jackson seeks in the Court of Appeal is for both the care and school orders to be referred back to the Family Court for an urgent rehearing of the proceedings, with both parties filing cultural identity evidence.4 In this event, Ms Jackson submits that the Family Court may make a decision that Kara attend a different school, namely School B.

[4] Mr Hopkins opposes the stay application. Mr Hopkins submits that the Court should not grant a stay pending an appeal when the decision sought to be stayed is not the decision under appeal. Further, Mr Hopkins submits that the appeal lacks merit, a stay is not in Kara’s welfare and best interests and that Kara starting school would not render an appeal nugatory and would preserve the appropriate status quo.

Relevant law

[5]Rule 12 of the Court of Appeal (Civil) Rules 2005 provides that:

…
(3)Pending the determination of an application for leave to appeal or an appeal, the court appealed from or the Court may, on an interlocutory application,—
(a)order a stay of the proceeding in which the decision was given or a stay of the execution of the decision; or
(b)grant any interim relief.

(4)An order or a grant under subclause (3) may—
(a)relate to execution of the whole or part of the decision or to a…

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 Hopkins v Jackson

Details

AGLC: Hopkins v Jackson [2022] NZHC 2956
Case: [2022] NZHC 2956
Decision Date: 11 November 2022

CaseChat Overview and Summary

The case of Hopkins v Jackson involves an urgent partial stay application made by the respondent, Ms Jackson, regarding the care arrangements and schooling of the parties' daughter, Kara. Ms Jackson seeks to stay the execution of the school order, directing Kara to attend School A, pending her application for leave to appeal the High Court's decision to the Court of Appeal. The primary concern of the court is Kara's welfare and best interests, and the court must balance this with the principles of the appeal process, including the preservation of the status quo and the potential for the appeal to be rendered nugatory.

The court assesses the strength of the appeal, which is based on the alleged breach of natural justice due to the consideration of new evidence. However, the court finds that the appeal is unlikely to succeed, as the court had already considered Kara's cultural identity and the importance of continuity in her care arrangements. Additionally, there is a jurisdictional issue as the Court of Appeal does not have the authority to appeal or review the school decision, which is a guardianship order under the Care of Children Act 2004.

The court concludes that refusing the stay application would not render the appeal nugatory and that Kara's welfare and best interests would be best served by starting school without delay. The court dismisses the stay application, and Kara is to start at School A on 21 November 2022.

Orders