Lister v Roberts - [2021] NZHC 2775

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-publishing- judgments/

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2021-404-1783

[2021] NZHC 2775

UNDER Section 143(2) of the Care of Children Act 2004 and s 124 of the District Courts Act 2016

BETWEEN

LISTER

Appellant

AND

ROBERTS

Respondent

Continued

Hearing: 12 October 2021 (by VMR)

Appearances:

Lister in person Roberts in person

S Abdale for appellant in CIV 2021-404-1784 B P C Carter counsel assisting the Court

V A Crawshaw QC for intended interested parties

Judgment:

15 October 2021

JUDGMENT OF CAMPBELL J

This judgment was delivered by me on 15 October 2021 at 4:00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

LISTER v ROBERTS [2021] NZHC 2775 [15 October 2021]

CIV 2021-404-1784

UNDER Section 143(2) of the Care of Children Act 2004 and s 124 of the District Courts Act 2016

IN THE MATTER OF

An appeal against a judgment of the Family Court at Auckland

BETWEEN

JOHN LISTER ROBERTS by PRICE his

litigation guardian Appellant

AND

LISTER

First Respondent

ROBERTS

Second Respondent

[1] These proceedings are two appeals from a judgment of Judge S J Fleming in the Family Court at Auckland dated 19 August 2021.1 The Judge made orders under the Care of Children Act 2004 for gradually increasing contact between Mr Roberts and his son, John, who is aged 12. One appeal is brought by Ms Lister, John’s mother.
The other is brought by John by his litigation guardian Dr Price.2

[2] John’s maternal grandparents, Ms Joseph and Mr Lister, have applied for leave to intervene as interested parties in the two appeals.

Background

[3] John and his parents were born in [another country]. They moved to New Zealand in October 2018. John has no other family connections in New Zealand. Ms Joseph and Mr Lister are his only grandparents. They live in [another country].

[4] Ms Lister is in her late forties. She is legally trained and has considerable legal expertise. Mr Roberts is in his early seventies. He practised law for many years in [another country]. He is now retired. He was diagnosed with cancer in 2010. He underwent treatment and his cancer is in remission.

[5] Mr Roberts and Ms Lister commenced their relationship in 2005 and were married in 2007. They separated in late 2019. During their relationship there were lengthy periods when John was effectively in the sole care of Ms Lister because he was living with her overseas while Mr Roberts remained working in [another country], though he would visit and stay with them from time to time.

[6] Following separation there was no contact between John and Mr Roberts for some months, except for a brief period over Christmas 2019. Mr…

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 Lister v Roberts

Details

AGLC: Lister v Roberts [2021] NZHC 2775
Case: [2021] NZHC 2775
Decision Date: 15 October 2021

CaseChat Overview and Summary

The High Court of New Zealand dealt with an appeal against a judgment of the Family Court at Auckland, which had made orders under the Care of Children Act 2004 for gradually increasing contact between Mr Roberts and his son, John. The appeal was brought by John's mother, Ms Lister, and by John himself through his litigation guardian, Dr Price. Additionally, John's maternal grandparents, Ms Joseph and Mr Lister, applied for leave to intervene as interested parties in the appeals. The Court had to decide on the merits of the appeals and the application by the grandparents to intervene. The Court held that while the grandparents had an interest in the outcome of the appeals, their intervention would not materially improve the quality of information before the Court. The Court also found that it would not be unjust to determine the appeals without the grandparents being heard, given that they had a separate proceeding on foot in the Family Court seeking orders for contact with John. The application to intervene was declined.

Orders