KV v CB - [2021] NZHC 2840

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,

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IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CIV-2021-488-97

[2021] NZHC 2840

IN THE MATTER of an Appeal against the Decision of the Family Court dated 4 August 2021

BETWEEN

KV

Applicant

AND

CB

Respondent

Hearing: 20 October 2021

Appearances:

V Crawshaw QC and M Davies for the Applicant N Dore for the Respondent

D Hart, Lawyer for the child

Judgment:

22 October 2021

JUDGMENT OF GORDON J

This judgment was delivered by me on 22 October 2021 at 2 pm, pursuant to
r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors: Wills Westenra Ltd, Whangarei
Henderson Reeves Connell Rishworth, Whangarei Counsel: V Crawshaw QC, Auckland
D Hart, Whangarei

KV v CB [2021] NZHC 2840 [22 October 2021]

[1] This is an application for a stay of a judgment of Judge King in the Family Court at Whangārei dated 4 August 2021 making a final parenting order under the Care of Children Act 2004 (the Act) in relation to a child, “L” (the decision).1

[2] Both the mother of the child, Ms V, who applies for the stay, and the father, Mr B, the respondent in this appeal, have filed appeals against the decision. The appeals will be heard together along with a related appeal brought by one of the parents of V, L’s stepsibling.

[3] No dates have been set for the hearing of the appeals, but in a callover minute, a Judge of this Court directed that the appeals be given a priority two day fixture in late November to early December this year.

[4]Ms V, in her stay application, seeks the following orders:

(a)That the final parenting order of 4 August 2021 (the final order) is stayed until such time as the appeal of Judge King’s decision is heard; and

(b)An order granting interim relief, namely that the interim parenting order of 6 July 2020 (the interim order) shall remain in force until further order of the Court.

[5] The key difference between the interim order and the final order is that under the interim order, Mr B’s contact with L, which was daytime contact only, was required to be “monitored” unless that contact was in a public place.2 Under the final order, Mr B’s daytime contact with L is unsupervised.

[6] The final order also makes provision for contact overnight, which must be supervised. However, under one of the conditions imposed in the final order, no overnight contact is to occur until such time as L has been assessed by a child psychiatrist and, if required, a treatment plan made and agreed to by his parents. The

1 KV v RM [2021] NZFC 7015.
2 KV v CB [2020] NZFC 4293 at [47].

parties agree that as 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 KV v CB

Details

AGLC: KV v CB [2021] NZHC 2840
Case: [2021] NZHC 2840
Decision Date: 22 October 2021

CaseChat Overview and Summary

In the High Court of New Zealand, KV, the mother of a child, appealed against a final parenting order made by Judge King in the Family Court dated 4 August 2021. The appeal sought a stay of the final order until the appeal was heard. The appeal was heard by Gordon J. The final parenting order allowed the father, CB, to have unsupervised contact with the child. The interim parenting order, which was in place for over a year, required that contact be monitored unless in a public place. KV submitted that there was a continuing risk of psychological abuse to the child when in CB's unsupervised care and it was in the child's welfare and best interests to preserve the status quo until her appeal was determined. CB submitted that the appeal would not be rendered nugatory if the stay was not granted and the child was safe in his unsupervised care for the purposes of daytime contact. The lawyer for the child submitted that the parents needed to find a way to reduce adult tensions and conflict and the making of unnecessary comments around the child. The court accepted that KV's appeal was bona fide and granted the application for a stay, in amended terms. The amended terms were that the final parenting order was to be amended so that contact was monitored (unless in a public place) rather than unsupervised. This would allow for the contact time between the father and the child to continue, but with a risk protection mechanism pending the hearing of the appeal.

Orders