Moreton v Baxter - [2020] NZHC 414

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS].

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 HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2019-419-000292

[2020] NZHC 414

BETWEEN
[SEAN MORTON]

Appellant

AND

[ZARA BAXTER]

Respondent

Hearing: 5 March 2020

Appearances:

S Jefferson QC for Appellant G O’Brien for Respondent

D A Bogers for the Children

Judgment:

6 March 2020

JUDGMENT OF VENNING J

This judgment was delivered by me on 6 March 2020 at 11.30 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: Haigh Lyon, Auckland
Garth O’Brien & Associates, Te Awamutu Bogers Scott Shortland, Hamilton

Counsel: S Jefferson QC, Auckland

[MORTON] v [BAXTER] [2020] NZHC 414 [6 March 2020]

Introduction

[1] In a judgment delivered on 4 October 2019 in the Family Court at Hamilton Judge D R Brown declined Mr [Morton] (the father’s) application for an order that his and [Ms Baxter] (the mother’s) two children, J and V, be relocated to [location A], Western Australia.1 The father seeks leave to appeal against that decision.

Application for leave

[2] Section 143 of the Care of Children Act 2004 (the Act) applies. As the proceedings were under s 46R of the Act2 the father may appeal to this Court against the decision only with leave of the Court.

[3] Counsel for the mother, Mr O’Brien submitted leave should not be granted. The issue of relocation has been brought up by the father three times already.3 The children have been involved in Court proceedings for seven years.

[4] While accepting that the issue of location and education are important matters, Mr O’Brien submitted that the application was pursued for the benefit of the father rather than the children.

[5] He submitted that there were no long term implications for the children. J will turn 15 this year, and in just over a year he will not be under the jurisdiction of the Family Court. V is 12 this year. She has no strong desire to relocate to Australia. There are no long term implications for her. He referred to DKP v MJM where the Judge had declined leave to appeal on a relocation issue.4

[6] Each case must of course turn on its own facts. There were a number of factors in DKP v MJM that are not present in this case. In DKP v MJM the decision had been to allow relocation and the mother had already taken a number of steps in reliance upon the decision. The application for leave to appeal was also filed out of time. The

1 [Morton v Baxter] [2019] NZFC 8123.
2 Section 46R deals with disputes between guardians. Section 16 confirms the matter in issue came within s 16(2), an important matter affecting…

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 Moreton v Baxter

Details

AGLC: Moreton v Baxter [2020] NZHC 414
Case: [2020] NZHC 414
Decision Date: 6 March 2020

CaseChat Overview and Summary

Sean Morton appeals the decision of the Family Court declining his application for an order that his two children, J and V, be relocated to Western Australia. The appeal is heard by Venning J in the High Court of New Zealand. The appeal is allowed, but dismissed on the basis that the Family Court was correct in its decision. The father argues that the Family Court did not attribute sufficient weight to the parties' agreement to raise their children with equal exposure to family members and cultures that form their identities. The father also argues that the Family Court failed to attribute sufficient weight to the need to preserve and strengthen the facets of the children's identities which can only be established and enhanced by relocation to Australia. The father further argues that the Family Court placed too much weight on the preservation of the children's Maori culture at the expense of other facets of their culture and identity. Venning J finds that the Family Court was correct to consider the relevance of the agreement in the context of the overriding s 4 consideration. Venning J also finds that the father's argument that the children's Australian identity can only be preserved or strengthened by living in Australia was not correct. The Court was faced with whether the advantages of relocation to Australia to achieve the father's objectives for the children outweighed the advantages of the children remaining in their settled environment in New Zealand with the advantages that entailed. The Court found that the advantages of the children remaining in New Zealand outweighed the advantages of relocation to Australia.

Orders