Kyle v Bowen - [2016] NZHC 3144

NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN A CT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO 11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER

INFORMATION PLEASE SEE JUSTICE/ABOUT-US/ABOUT-THE-FAMILY-
COURT/LEGISLATION/RESTRICTION-ON-PUBLISHING-JUDGMENTS.

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

CIV-2016-404-001844

[2016] NZHC 3144

BETWEEN
KYLE

Appellant

AND

BOWEN

Respondent

Hearing: 8 December 2016

Appearances:

A E Ashmore for Appellant E N McCabe for Respondent

Judgment:

19 December 2016

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 19 December 2016 at 3.30 pm
pursuant to R 11.5 of the High Court Rules Registrar / Deputy Registrar Date………………………..

KYLE v BOWEN [2016] NZHC 3144 [19 December 2016]

Introduction

[1] M and her former partner, A, share the day-to-day care of their five-year-old son, X. M lives in central Auckland and A lives in West Auckland. They cannot agree on where X should go to school. Earlier this year Judge Pidwell held that it was in X’s best interests that he attend B school in central Auckland.1 A wishes to appeal that decision. He needs leave to do so. In this decision I consider both the application for leave to appeal and the substance of appeal together.

[2] The proposed grounds of appeal (ordered slightly differently from the way counsel presented them) are that the Judge:

(a)placed insufficient weight on the provisions of s 5(e) and (f) of the Care of Children Act 2004 (CoCA);

(b)incorrectly interpreted the principle in s 5(d);

(c)wrongly treated the fact that A’s brother is a member of the Head Hunter gang as relevant when considering the importance of that man’s daughter attending the school proposed by A;

(d)made findings of fact that were not supported by the evidence;

Leave to appeal

[3] Judge Pidwell’s decision was made under s 46R of the Care of Children Act 2004 (CoCA). Under s 143(2) of CoCA an appeal against a decision made under s 46R requires the leave of this Court.

[4] The considerations relevant to an application for leave under s 143(2) have been discussed in a number of other decisions of this Court, notably BFW v MPG2 and

1 A v M [2016] NZFC 5985.
2 BFW v MPG [2012] NZHC 1188 at [22].

SFB v JEBH.3 On the one hand it is evident that, by allowing appeals from decisions under r 46R to proceed only with leave, Parliament is signalling the importance of finality in litigation and the fact that not all disputes arising for determination under r 46R will warrant a right of appeal. On the other hand, by allowing leave to be granted for an appeal, Parliament plainly contemplated that there would be some decisions that ought to be amenable to appeal. In previous cases Judges have observed that where the Family Court decision has long-term implications for a child, it is likely that leave will more readily be granted.

[5] I accept that where a child is to spend his…

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 Kyle v Bowen

Details

AGLC: Kyle v Bowen [2016] NZHC 3144
Case: [2016] NZHC 3144
Decision Date: 19 December 2016

CaseChat Overview and Summary

In Kyle v Bowen, A, the father, sought leave to appeal a decision made by Judge Pidwell under section 46R of the Care of Children Act 2004, which mandated that A and M, the mother, share the day-to-day care of their son, X. The primary dispute between A and M was the choice of primary school for X, with M advocating for B school in central Auckland and A preferring K school in West Auckland. Judge Pidwell had ruled in favor of B school, citing continuity of care as the paramount consideration. The appeal raised four grounds: the Judge's insufficient weight on sections 5(e) and (f) of the Care of Children Act 2004, misinterpretation of the principle in section 5(d), inappropriate consideration of A's brother's gang affiliation, and findings not supported by evidence. Justice Courtney found that the Judge did indeed err in treating sections 5(e) and (f) as already satisfied and misinterpreted the principle of continuity of care by focusing excessively on M's needs rather than X's best interests. However, the court concluded that despite these errors, the decision to favor B school remained in X's best interest, and thus the appeal was dismissed. Leave to appeal was granted.

Orders