M v A - [2013] NZHC 831

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 LEGISLATION/RESTRICTIONS.

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV-2013-470-000228 [2013] NZHC 831

UNDER the Care of Children Act 2004

IN THE MATTER OF an appeal against a decision of the Family
Court at Tauranga

BETWEEN M Appellant

ANDA Respondent

Hearing: 18 April 2013 (at Rotorua)

Counsel: A H Brown and P I J Eagle for Appellant
F H Thompson for Respondent
L C Jack - Counsel for Child

Judgment: 19 April 2013

In accordance with r 11.5 I direct the Registrar to endorse this judgment with the delivery time of 3.30pm on the 19th day of April 2013.

RESERVED JUDGMENT OF COLLINS J

M V A HC TAU CIV-2013-470-000228 [19 April 2013]

Introduction

[1] The issues I am required to resolve are:

(1)Should the Family Court in Tauranga have ordered that Mr A have contact with C, the 12 year old daughter of Ms M and Mr A (contact order)?

(2)If a contact order was appropriate, should the contact order made by the Family Court be varied?

(3)What other orders should be made to advance the welfare and best interests of C?

[2] These issues arise in the context of an appeal by Ms M from a decision of Judge Geoghegan, delivered on 7 February 2013 in the Tauranga Family Court. In his decision Judge Geoghegan made interim orders pursuant to s 48 of the Care of Children Act 2004 (the Act). The interim orders were that Mr A was to have contact with C:

(1)for four visits each alternate Sunday from 10.15 am to 11.45 am, commencing on Sunday 17 February 2013;

(2)each alternate Sunday from and including Sunday 14 April 2013, from 10.15 am to 1.45 pm;

(3) on each Sunday from and including 9 June 2013, from 10.15 am to

7.00 pm;

(4) such other contact as agreed.

[3] Ms M advances three grounds of appeal, namely that Judge Geoghegan:

(1) failed to give appropriate weight to C’s views as required by s 6(2)(b)

of the Act;

(2)incorrectly applied principle 5(b) of the Act by failing to consider the effect of the contact order upon the continuity of C’s care arrangements;

(3)failed to give sufficient weight to principle 5(e) of the Act by not properly considering the psychological impact upon C of the contact order.

[4] As will become apparent I have determined this appeal on the first ground advanced by Ms M. It has not been necessary for me to consider the second and third grounds of appeal.

Background

[5] Ms M and Mr A have a very fraught relationship that has been marked by protracted litigation. I will not attempt to analyse the reasons for their disputes. Suffice for present purposes to observe that they appear to disagree on most issues concerning C.

[6] C lives in 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 M v A

Details

AGLC: M v A [2013] NZHC 831
Case: [2013] NZHC 831
Decision Date: 19 April 2013

CaseChat Overview and Summary

M appeals a decision of the Family Court at Tauranga that ordered that she allow her former partner, A, to have contact with their 12 year old daughter, C. The appeal is heard by Collins J of the High Court at Tauranga. M argues that the Family Court did not give appropriate weight to C's views, as required by s 6(2)(b) of the Care of Children Act 2004. The High Court finds that the Family Court erred in two material respects when weighing C's views: it did not consider C's maturity and it discounted C's views because of the conduct of M. The High Court orders that any contact between A and C be confined to A writing letters to C no more than once a month.

Orders