Lowe v Way - [2015] NZHC 93

NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO
11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE COURT/LEGISLATION/RESTRICTIONS-ON-PUBLICATIONS.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-001668 [2015] NZHC 93

UNDER the Care of Children Act 2004

IN THE MATTER OF

an appeal under section 143, Care of

Children Act and section 72, District Courts Act 1947

BETWEEN

LOWE Appellant

AND

WAY Respondent

Hearing: 23 and 24 September 2014

Counsel:

G E Whiteford for the Appellant
J E McLennan for the Respondent
J Robertson for the Children

Judgment:

5 February 2015

JUDGMENT OF DUFFY J

This judgment was delivered by Justice Duffy on 5 February 2015 at 4.45 pm, pursuant to
r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

LOWE v WAY [2015] NZHC 93 [5 February 2015]

[1] This is an appeal against a decision of the Family Court in which that Court made a final parenting order regarding a young child who shall be known as J.1

[2] The order put in place a parallel parenting regime, with each parent taking turn about to have sole care of J for a period of five days (“the 2:2:5:5 arrangement”). The appellant, who is J’s mother, objects to the order. Her view is that the Family Court failed to give proper consideration to the risk of violence that she perceives J will face when in the sole care of the respondent, who is J’s father.

[3] The appeal is opposed by the respondent and by counsel for J.

[4] I have carefully considered the arguments the appellant has raised. Whilst I acknowledge that there may have been some errors in the approach taken by the Family Court, I am satisfied, nonetheless, that a proper outcome was reached. For this reason, the appeal must fail. My reasons for so finding are set out below.

Background

[5] The application for the parenting order commenced before the recent amendment to the Care of Children Act 2004 (“the Act”). Before this amendment, ss 58 to 62 of the Act specifically addressed cases involving allegations of violence. Section 58 defined an allegation of violence to mean an allegation that a party to proceedings has physically or sexually abused another party to the proceedings; a child who is the subject of the proceedings; or a child of the family. Allegations of violence that fell outside this definition formed part of the general enquiry in which a parenting order was considered. The legislation’s separation of physical and sexual abuse from other forms of violence led to a practice of split hearings. The first such hearing, commonly known as the s 60 hearing, was to determine if violence as defined by s 58 was present (hereafter referred to as s 58 violence); the second hearing dealt with consequential issues, the character of which depended upon the outcome of the s 60 hearing. Allegations of violence falling outside…

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 Lowe v Way

Details

AGLC: Lowe v Way [2015] NZHC 93
Case: [2015] NZHC 93
Decision Date: 5 February 2015

CaseChat Overview and Summary

The appeal was brought against a final parenting order made by the Family Court, which established a parallel parenting regime for the care of a child named J. The appellant, J’s mother, objected to the order, arguing that the Family Court failed to properly consider the risk of violence she believed J would face when in the sole care of the respondent, J’s father. The appeal was opposed by the respondent and by counsel for J.

The High Court found that while there may have been some errors in the approach taken by the Family Court, a proper outcome was reached. The Court found that the appellant did not have a fair opportunity to be heard in one respect, and that there was a further incidence of violence by the respondent. However, the Court viewed the respondent’s violence towards the appellant more seriously than did the Family Court. Nonetheless, the Court found that there was nothing to persuade it that the approach taken in the Family Court and the outcome that was reached was so wrong that the Court should allow the appeal and refer the matter back to the Family Court for rehearing.

The appeal was dismissed.

Orders