Ives v Reza - [2018] NZHC 2318

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.

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CIV-2018-443-6

[2018] NZHC 2318

IN THE MATTER OF the Care of Children Act 2004

BETWEEN

IVES

Appellant

AND

REZA

Respondent

Hearing: 27 August 2018

Appearances:

A R H Laurenson and N E W Walden for the Appellant C A Gelston for the Respondent

Judgment:

4 September 2018

JUDGMENT OF COOKE J

[1] Mr Ives1 appeals against the decision of the Family Court determining the terms and conditions of a final parenting order. That order involved equal periods of care of the parties’ two children over holiday periods, but more limited care by Mr Ives during school term time. Mr Ives says that there should be equal care arrangements over term time as well.

1 Fictitious names have been adopted for the parties to protect the identities of the children. The citations for the District Court decisions have been edited accordingly.

IVES v REZA [2018] NZHC 2318 [4 September 2018]

Background

[2] The background is described in the judgment of Judge Barkle dated 15 December 20172 and an earlier judgment of his Honour dated 3 April 2017, which he indicated should be read to provide a full understanding of how matters concerning the parties and their children had unfolded.3

[3] The parties have two children, a daughter who is presently ten, and a son who is presently eight. The parties’ relationship began some time in 2006. They separated on 25 April 2015 when Ms Reza moved out of the family home. The children remained living with Mr Ives, although Ms Reza filed an application with the Family Court on 14 May 2015 asking the Court to address the care arrangements.

[4] On 8 June 2015, Judge Courtney put in place interim care and contact arrangements with the children spending nine nights with Mr Ives and five nights with Ms Reza, with school holidays on a week about basis. His Honour raised an issue at this stage that has become one of ongoing significance. He indicated that the children should not be involved in any adult issues, and the issues between Mr Ives and Ms Reza should be kept between them as the children had enough to deal with without being burdened by them.

[5] Unfortunately, that is not how matters developed. On 11 January 2016, Ms Reza made an application for interim parenting and temporary protection orders. These were granted by Judge Otene, with her Honour also ordering that Mr Ives’ contact with the children was to be supervised. Judge Barkle heard evidence about the events that led to these orders at the hearing leading up to his 3 April 2017 judgment. He accepted that domestic violence had occurred, and he recorded that Mr Ives’ counsel had accepted that this was the…

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 Ives v Reza

Details

AGLC: Ives v Reza [2018] NZHC 2318
Case: [2018] NZHC 2318
Decision Date: 4 September 2018

CaseChat Overview and Summary

The appeal was against the final parenting orders of the Family Court which involved equal periods of care of the parties’ two children over holiday periods, but more limited care by Mr Ives during school term time. Mr Ives sought equal care arrangements over term time as well. The appeal was dismissed. The court assessed the views of the children, which were in favour of shared care on a week-about basis during term time as well as holidays. The court found that the children’s views did not carry significant weight when addressing the more sophisticated questions relevant to the details of the care and access arrangements in this case. The court also assessed the evidence of Mr Coyle, a psychologist who was involved with the parties and their children for some time, and the views of counsel for the child. The court found that the Family Court Judge gave significant weight to Mr Coyle’s views, but that there were clearly other factors to consider when making the final decision. The court found that the Family Court was not wrong in deciding on the terms and conditions of the final parenting order. The orders were in the best interests of the children and have been appropriately tailored in light of the views of both parents, the views of counsel for the child, and the expert opinion of Mr Coyle. The appeal was dismissed and the costs of the appeal were to be paid by the appellant.

Orders