Hopkins v Jackson - [2022] NZHC 2649

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 2649

BETWEEN
HOPKINS

Appellant

AND

JACKSON

Respondent

Hearing: 10 October 2022

Appearances:

Appellant in Person

A Esera for Respondent S Hughes for Child

Judgment:

13 October 2022

JUDGMENT OF McQUEEN J

[1] This is an appeal by Mr Hopkins against a Family Court decision that determined the care arrangement for the parties’ child, Kara, and directed which school Kara should attend.1

[2] The parties are the parents and guardians of Kara. Kara was born on 20 October 2017 so is imminently due to turn five years old and begin school. Accordingly, the appeal was given urgency.

1 [Hopkins] v [Jackson] [2022] NZFC 5719 [Family Court decision]. The names of the parties and children have been anonymised in light of the suppression orders.

HOPKINS v JACKSON [2022] NZHC 2649 [13 October 2022]

Background

[3] The parties separated in 2020. Mr Hopkins has two other daughters through a previous relationship, Ella (presently nine years old) and Hana (presently six years old). He shares care for Ella and Hana with their mother on an equal care basis, as ordered by the Family Court. Ms Jackson has 14-year-old twin boys through a previous relationship. Ms Jackson cares primarily for the boys, but they have regular contact with their father.

[4] The Family Court has previously been involved in the parties’ care arrangements for Kara. The parties have had a difficult relationship since separation with notable communication difficulties. For the purposes of this judgment, I do not need to canvass in detail the evidence or submissions made on this issue. There is no dispute that Kara’s parents, however, are both committed to her and wish to be extremely involved in her upbringing.

[5] For over two years,2 and until the care arrangement ordered in Family Court judgment under appeal was implemented,3 there was a joint care arrangement of a 2:2:3–day care regime.4

[6] Mr Hopkins sought the continuation of that care arrangement and a direction that Kara be enrolled in Churton Park School.

[7] Ms Jackson sought to significantly adjust the care arrangement to a 9:5 care regime over a 14-day period, proposing that Mr Hopkins have Kara in week one from 10 am on Monday until before school/daycare on the Tuesday and on Friday from school/daycare until midday Monday. In week two, she proposed that Mr Hopkins’s care cease on the Monday at midday and he would have video contact with Kara on Wednesdays and Fridays at 6 pm. Ms Jackson also sought a direction that Kara be enrolled in Papakōwhai School.

2 It was Ms Jackson’s evidence that this care arrangement existed for two and a half years.
3…

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 2649
Case: [2022] NZHC 2649
Decision Date: 13 October 2022

CaseChat Overview and Summary

Hopkins appealed the Family Court decision to change the care arrangement for Kara, and the school Kara was to attend. The appeal was heard by McQueen J. The Family Court Judge had ordered that Kara was to attend Papakōwhai School and that her care arrangement was to be that proposed by Jackson. The appeal was heard on the basis of the evidence already before the Family Court. McQueen J found that the Family Court Judge did not properly apply the principles in s 5 of the Care of Children Act 2004 when determining the care arrangement and which school Kara was to attend. The Judge had placed insufficient weight on the principles relating to continuity of care, the child’s relationship with parents and wider family and the child’s identity. The appeal was allowed. The Family Court decision that Kara attend Papakōwhai School and the order that Kara’s care arrangements were to be the proposal put forward by the respondent was quashed. McQueen J directed that the 2:2:3 care arrangement in place prior to the Family Court decision be reinstated and Kara was to attend Churton Park School.

Orders