Norton v Williams
[2020] NZHC 1838
•28 July 2020
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 judgments/
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2020-404-000223
[2020] NZHC 1838
UNDER the Care of Children Act 2004 IN THE MATTER OF
an appeal against a decision of the Family Court at Auckland
BETWEEN
NORTON
Applicant
AND
WILLIAMS
Respondent
Hearing: 24 July 2020 (further memoranda filed on 27 July 2020) Appearances:
L F Soljan and M C Harvey for the Applicant
A E Ashmore and L T A Wong for the Respondent D Amodeo for the Child
Judgment:
28 July 2020
JUDGMENT OF WYLIE J
[Application for stay]
This judgment was delivered by Justice Wylie On 28 July 2020 at 2.00 pm
Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar
Date:………………………
Solicitors/counsel:
Harvey Law Ltd, Pukekohe/L F Soljan, Auckland A E Ashmore, Ponsonby
D Amodeo, Auckland
NORTON v WILLIAMS [2020] NZHC 1838 [28 July 2020]
Introduction
[1] I refer to my substantive judgment issued on 24 June 2020.1 I allowed Mr Williams’ appeal and made an order pursuant to s 46R of the Care of Children Act 2004 (the Act) directing that:
(a)from 15 July 2020, S’s place of residence was to be at the home of his maternal grandparents in town A, with his mother, Ms Norton; and
(b)S was to commence the third term of the school year at the local school in town A on 20 July 2020, and was to continue at that school subject to any agreement reached between his parents as to an alternative school for him to attend.
I also reinstated the parenting order made by consent on 19 February 2013, subject to variations to that order which had been agreed by the parties.
[2] Ms Norton has filed an application with the Court of Appeal, seeking leave to bring an appeal against my judgment. The application is brought pursuant to s 145 of the Act. The proposed grounds of appeal are as follows:
(a)His Honour acted without jurisdiction, and contrary to section 18 NZ Bill of Rights Act 1990 by making orders directing the appellant mother to reside in a specific residence with specific persons identified in the orders.
(b)His Honour acted contrary to the requirements of natural justice and section 27 NZ Bill of Rights Act 1990 by making orders that significantly impact on the rights and interests of two individuals (the maternal grandparents) without providing them with an opportunity to be heard.
Ms Norton has also filed an interlocutory application in this Court, seeking a stay of my substantive judgment. That application is brought pursuant to r 12 of the Court of Appeal (Civil) Rules 2005.
[3] Mr Williams has filed a memorandum with the Court of Appeal, advising that he opposes the application for leave. Ms Norton is required to file and serve written
1 Williams v Norton [2020] NZHC 1438.
submissions in support of her application by 11 August 2020. Any response by Mr Williams is to be filed within 15 working days thereafter.
[4] At my direction, counsel have made enquiry with the Court of Appeal’s Registry. I am advised that the application for leave will be determined on the papers in the Court of Appeal’s miscellaneous motions list. The next available list date is in the week commencing 7 September 2020. In the event that leave is granted, there is a fast track process available. It is detailed in the Fast Track Practice Note 2015. If application is made for a fast track hearing, and the Court of Appeal agrees to that course, the appellant must undertake to pay security for costs, apply for a fixture, file the case on appeal and his or her submissions, all within 20 working days of the filing of the notice of appeal. The Court will use its best endeavours to offer a fixture date within two months of the fixture date being applied for.
[5] Ms Norton has indicated through her counsel, Ms Soljan, that she is prepared to agree to a condition on any stay requiring her to make application for a fast track hearing, to give the various undertakings required, and to do all she can to expedite the hearing of any appeal.
The application for a stay
[6] As noted, the application was brought pursuant to r 12 of the Court of Appeal (Civil) Rules. Relevantly, that rule provides as follows:
12 Stay of proceedings and execution
…
(3)Pending the determination of an application for leave to appeal or an appeal, the court appealed from … may, on an interlocutory application,—
(a)order a stay … of the execution of the decision;
…
(4)An order … under subclause (3) may—
(a)relate to execution of the whole or part of the decision …
(b)be subject to any conditions that the court appealed from … thinks fit, …
…
(6)If the court appealed from makes an order under subclause (3), the Court may, on an interlocutory application, vary or rescind that order.
…
[7] The Court of Appeal has discussed the principles applicable to stay applications in Family Court matters. It has noted as follows:2
[20]In Crosby v Crosby Priestley J adopted (with one exception) the following summary of principles stated by Judge David Mather in relation to applications for stay in cases in the Family Court:
“[13] … I extract the following principles as relevant in respect of applications for stay in cases such as the present:
…
[b] The overriding consideration in such an application is the welfare of the children.
[c] Whether or not the appeal will be rendered nugatory if a stay is refused will be a highly relevant consideration.
[d] The arguments in favour of a stay will be stronger if the decision under appeal has the effect of significantly changing the status quo.
[e] The Court will have regard to any evidence of lack of bona fides in the filing of an appeal and an application for stay as a consequence.
[f] The reluctance of the … Court on appeal to interfere with findings of credibility, and the disposal of an appeal largely or entirely on the evidence heard in the Family Court, decrease the prospects of successful appeal and hence weaken the arguments in favour of a stay.
[g] Each case will turn on its own facts. The length of time before the appeal is likely to be heard, the current circumstances of the parties and children and the consequence of delay pending the hearing of the appeal will all be relevant.”
[21]The only reservation expressed by Priestley J was in relation to principle (f). The Judge thought it would be wrong if there was a perception that the prospects of success on appeal would be decreased or would be minimal in cases depending substantially on findings of credibility and the exercise of discretionary judgment. Priestley J pointed out that there may be other reasons such as developments since the initial hearing which could influence the outcome of the appeal and that appellate judges would, in any event, give anxious consideration afresh to all relevant factors.
2 WAH v WTW [2010] NZCA 344, referring to Crosby v Crosby HC Auckland AP 124-SW01, 21 December 2001.
[22]We endorse the principles expressed by Judge Mather as applicable to a stay of execution on appeal subject to the important additional consideration of the merits of the appeal. Plainly, a stay will be more likely to be granted where there are strong grounds to support the appeal and vice versa. We also endorse Priestley J's observations discussed in the preceding paragraph about the role of the High Court (on appeal from the Family Court) or the role of this Court (on appeal from the High Court where original jurisdiction has been exercised as it has been in this case).
[23]Although Crosby was decided under the Guardianship Act 1968, we see no difference in approach to stay applications under the Care of Children Act 2004. The welfare and best interests of the child remain the first and paramount consideration.
Analysis
S’s Welfare and best interests
[8] Mr Amodeo, as counsel for the child, has spoken to S. He did so two days after my substantive decision issued. He explained the decision to S, including the orders that had been made, the changes they would make to S’s situation and when the changes were to occur. S accepted my decision without issue, and Mr Amodeo advises that he understood the consequences of the orders that I made. He noted that S did not express any negativity, that there was no aspect of the decision that he took issue with, and that he did not wish to appeal my decision.
[9] Mr Amodeo submitted to me that S is likely to have expected his life to develop in accordance with the decision, and that the reality, as a result of Ms Norton’s appeal, has been “significantly different”. I accept this submission and Mr Amodeo’s further submission that the present impasse is likely to be confusing and potentially upsetting for S.
[10] In my substantive decision, I made various findings as to what was in S’s welfare and best interest, taking into account the various matters that I was required to consider pursuant to ss 4, 5 and 6 of the Act. There is no direct challenge to my findings in this regard in the application seeking leave to appeal. Rather, the application seeking leave focuses on Ms Norton’s interests.
[11] I record an argument advanced to me by Ms Soljan at the stay hearing. She submitted that I proceeded on the assumption that Ms Norton and S would return to her parents’ home in the event that I ordered that S be relocated back to town A. She argued that my expectation of how any relocation to town A could be achieved was flawed and that this affected the weighing I undertook of the various factors set out in ss 4, 5 and 6 of the Act.
[12]I have with two difficulties this submission.
[13] First, the notice seeking leave to appeal does not reflect Ms Soljan’s submission. There is no link suggested between the matters in respect of which leave is sought and my decision on the factual issues relevant to S’s welfare and best interests.
[14] Secondly, when I heard the appeal, I was advised that, in the event I allowed the appeal and ordered that S be returned to town A, Ms Norton would return with him and move back into her parents’ home. I recorded this at [22] of my substantive decision. I also noted that Ms Norton advanced various arguments at the appeal hearing as to why her parents’ home was unsuitable and as to why BJ’s home in town B was preferable – see [48], [49], [45] and [61](b). I accepted Ms Norton’s arguments in this regard and I recorded that they favoured S’s relocation from town A to town B
– see [49]. Nevertheless, I went on to find that these matters did not outweigh other matters which I considered were also relevant to S’s welfare and best interests.
[15] It is now argued, in support of the stay application, that Ms Norton has no accommodation available in town A and that I could not have intended for her and S to be homeless.
[16] Of course I did not intend that Ms Norton and S should be homeless, but I do not see the position in such stark terms. The appeal hearing proceeded on the understanding Ms Norton and S would return to her parents’ home if I ordered that S return to town A. Ms Norton has not filed an affidavit denying this understanding or suggesting that matters have changed since the appeal hearing. In the absence of any
contrary affidavit, I can only assume that the state of affairs represented to me at the appeal hearing continues.
[17] Mr Ashmore, for Mr Williams, was prepared to accept that I could appropriately stay execution of my judgment insofar as it requires that S reside at the home of his maternal grandparents.
[18] Ms Norton is S’s primary caregiver. She wants to remain in that position. I have concluded that it is in S’s best interests to return to town A. That finding is not directly challenged. Given that Ms Norton wants to remain as S’s primary caregiver, it must follow that she will have to move back to town A with him. I understood her to accept this. Where she lives is no great moment to Mr Williams, nor to the Court, as long as the accommodation is satisfactory for S. Ms Norton’s parents’ home was satisfactory prior to the relocation to town B. On the evidence before me, there is nothing to suggest that that accommodation is not available or that it is no longer satisfactory. Nor is there anything to suggest that alternative satisfactory accommodation cannot be found. I am prepared to grant a limited stay, suspending that part of my order as requires S and Ms Norton to reside at Ms Norton’s parents’ home in town A. A stay in these limited terms will mean that Ms Norton is not compelled to live with her parents. Nor does it preclude her from doing so. Moreover, it will preserve her right to seek leave to appeal.
[19]I turn to other issues affecting S’s welfare and best interests.
[20] In the event that leave to appeal is granted by the Court of Appeal and my substantive decision is overturned, then S will be required to relocate twice unless a stay is granted. That would clearly be disadvantageous to him. On the other hand, as Mr Amodeo points out, the situation is somewhat unusual. S has experienced living in both towns and has attended the local schools in each. I have agreed with Mr Amodeo in my substantive decision that, in the past, S has indicated a preference to return to town A, and to go back to the school that he attended whilst he was living there. My findings as to S’s views are uncontested. If a stay is ordered and S remains in town B, S’s return to the town and school that he would prefer to be at, will be delayed. That would also be contrary to S’s welfare and best interests. There is also
a risk that leaving town B and re-establishing his life in town A will become more difficult for him if a stay is ordered. Again, I do not consider that this is in S’s welfare and best interests.
[21] In my view, there is force in Mr Amodeo’s submission that from S’s perspective, the status quo is his ongoing residence in town A. S has accepted my decision. The fact that he is content with it outweighs the possibility, not clearly foreshadowed in the application seeking leave to appeal, that my findings on the merits could be overturned.
Will the appeal be rendered nugatory if a stay is refused?
[22] If that part of my judgment as requires S and Ms Norton to live in Ms Norton’s parents’ house is stayed but the balance is not, the appeal will not be rendered nugatory.
The status quo
[23] As noted above, I accept Mr Amodeo’s submissions that, from S’s perspective, the status quo is the situation that applied prior to the relocation directed by the Family Court. From his perspective, the status quo has him living in town A. His relocation to town B represents a significant change in the status quo.
Bona fides?
[24] I have some reservations about Ms Norton’s application for leave to appeal. As I have noted above, it may be that Ms Norton is seeking to resile from the position she took before me in the course of the appeal hearing. There was however some dispute before me as to what representations were or were not made on Ms Norton’s behalf. As a result, I have directed the Registrar to obtain a full transcript of the hearing, so that that transcript can be made available to the Court of Appeal when it is considering the application for leave and/or any appeal. I am not, on the materials currently before me, prepared to conclude that there is any lack of bona fides by Ms Norton.
Credibility
[25] I dealt with the appeal by way of rehearing for the reasons set out by me in [31] to [35] of my judgment. Credibility was not in issue and I do not consider that this factor has any relevance to the present application.
Merits of the proposed appeal
[26] As I have indicated, I have some reservations about the merits of the proposed appeal. Further, and also as I have also noted, it appears to me that it focuses on Ms Norton’s interests and not on S’s welfare and best interest. It seems to me unlikely that, even if successful, the appeal could result in the relief which Ms Norton seeks, namely that the orders made by me be quashed, and that the orders made by the Family Court be reinstated. As I have noted, there is no direct challenge to the various factual conclusions which I reached.
Other matters
[27] Even if the fast track procedure is adopted, it is unlikely that the appeal will be finally resolved until later this year at the earliest.
[28] The application for leave to appeal will not be resolved until early September. If leave is granted, and the appeal is placed on the fast track, then Ms Norton will have a further 20 working days to pay security and file all relevant papers. The Court of Appeal then use its best endeavours to allocate a fixture within a further two months. At best, a fixture could not reasonably be anticipated until some time in November 2020, or perhaps later. The Court of Appeal does not sit in December or January. It is possible that there may not be a hearing of any appeal until February 2021. The Court is likely to reserve its decision. It could well take some weeks for a decision to issue. At best, a decision from the Court of Appeal could be available in late 2020. At worst, it may not be until February/March 2021.
[29] I note the direction contained in s 4(2)(a)(i) of the Act. Decisions affecting a child should be made and implemented within a timeframe that is appropriate to the child’s sense of time. As I have noted, S will already have an expectation that he is to
be relocated back to town A. Any delay, even if explained to him carefully by Mr Amodeo, is in my view, likely to cause him further distress. That should be avoided.
Result
[30] For all of the above reasons, I decline to stay my judgment in its entirety. I do, however, stay it in part. I stay that part of my decision as requires S and Ms Norton to reside in Ms Norton’s parents’ home in town A pending final determination of any appeal to the Court of Appeal.
[31] In my judgment, I required that S’s place of residence was to be in town A as from 15 July 2020, and that he was to commence the third term of his school year at the local school in town A on 20 July 2020. Those dates were discussed in the course of the hearing before me and I understood that they were manageable in the event that I ordered that S should be relocated back to town A. Unfortunately, those dates have now passed. As a result, the opportunity for S to start back at the school in town A at the start of the school term has been lost. There are no other obviously convenient dates for relocation in the short to medium term. Term three does not end until 25 September 2020. There are no public holidays or other breaks during the term. Term four does not start until 12 October 2020.
[32] In my judgment, October is too late. S would be left in a lacuna and extending the time for compliance with my judgment through until then would be contrary to his welfare and best interests.
[33] Ms Soljan advises from the bar that Ms Norton cannot now commit to any particular date. I was also told from the bar that the school at town A is able to re- enrol S. Notwithstanding that there is no affidavit in this regard, I accept, as a matter of common-sense, that Ms Norton needs time to arrange her affairs so that she can relocate to town A. However, I bear in mind that Ms Norton has been aware of my decision since 24 June 2020. She filed an application for leave to appeal, but nevertheless she should have been taking steps to get ready to relocate in the event that leave is declined. I direct that S is to be relocated back to town A by Friday 14
August 2020, and that he is to return to the local school in town A commencing as from Monday 17 August 2020.
[34]In all other respects, Ms Norton’s application for a stay is declined.
[35] I reserve to Mr Williams the right to seek costs and his reasonable disbursements in regards to the application for a stay. Any memorandum is to be filed and served within 10 working days of the date of this judgment. Any memorandum in reply is to be filed and served within a further 10 working days. Memoranda are not to exceed five pages. I will then deal with the issue of costs and disbursements on the papers unless I require the assistance of counsel.
Wylie J
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