Peeling v Jacobs - [2023] NZHC 2733

NOTE: PURSUANT TO S 169 OF THE FAMILY PROCEEDINGS ACT 1980, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE

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NOTE: NAMES OF THE PARTIES IN THIS MATTER HAVE BEEN ANONYMISED.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-000866

[2023] NZHC 2733

BETWEEN
A PEELING

Appellant

AND

J JACOBS

First Respondent

F GORDON

Second Respondent

Hearing: 14 September 2023

Appearances:

Appellant in Person (by VMR)

A Bell and J Warrington for the First Respondent No appearance by or for the Second Respondent A Ashmore as Lawyer for the Children

Judgment:

29 September 2023

JUDGMENT OF WALKER J

This judgment was delivered by me on 29 September 2023 at 3 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

[PEELING] v [JACOBS] [2023] NZHC 2733 [29 September 2023]

[1] Ms Peeling is the maternal aunt of two children aged under 12 years old. Following Care of Children Act 2004 (COCA) proceedings spanning some seven years, the children are in the day-to-day care of their father pursuant to a final parenting order dated 12 April 2022. Both mother (the second respondent) and father (first respondent) are joint guardians of the children. While the children are in the primary care of their father in Auckland, they have contact with their mother who lives outside Auckland each second, fifth and eighth weekend of the school term and one week in each school term holiday.

[2] Ms Peeling was not a party to the COCA proceedings. She lives in Christchurch. She has not seen the children since 2020 but explained to the Court that this is not due to any lack of effort on her part. She says that neither parent will facilitate contact and they continue to block her attempts to communicate with the children. Consequently, she does not currently have a relationship with them. She says that she wants to have the opportunity to impart to them her knowledge and awareness of their shared whakapapa and Samoan cultural identity. She fervently believes that the respondents do not have the strong cultural family knowledge and experience that she has.

[3] In May 2022, after the conclusion of the parenting proceedings, Ms Peeling applied to the Family Court to be a Court-appointed additional guardian for a specific purpose.1 She seeks to have care of the children over a few days each year when she visits Auckland or in Christchurch. She also referred in the written material she has filed to a safety “vetting” role. It is not altogether clear what Ms Peeling means by this and it did not have any prominence in the hearing.2 I glean that through a background in social work roles, Ms Peeling considers that she is well placed to provide checks on the well-being of the children.

1 Section 27, Care of Children Act 2004.
2 The Judge noted that Ms…

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 Peeling v Jacobs

Details

AGLC: Peeling v Jacobs [2023] NZHC 2733
Case: [2023] NZHC 2733
Decision Date: 29 September 2023

CaseChat Overview and Summary

The High Court of New Zealand heard an appeal by Ms Peeling against the Family Court's decision to strike out her application to be a court-appointed additional guardian for the children of her niece and nephew, who are under 12 years old. Ms Peeling, who lives in Christchurch, seeks to have care of the children over a few days each year and to have a "safety vetting" role, to ensure their well-being. The children are currently in the care of their father in Auckland, while their mother lives outside Auckland and has contact with them on a set schedule. Ms Peeling has not seen the children since 2020 due to the parents blocking her attempts to communicate with them. The Family Court struck out Ms Peeling's application based on written submissions from the parties. The primary issue on appeal is whether the Family Court erred in striking out her guardianship application.

The court considered the appeal under the Care of Children Act 2004 (COCA) and the Family Court Rules 2002. The court noted that the appointment of a guardian should not undermine the powers of the child's natural guardians and that the welfare and best interests of the child must be the paramount consideration. The court found that the Family Court had correctly identified the requirements of r 193 of the Family Court Rules 2002 and that the application did not show a demonstrable benefit to the children. The court also held that the children do not need to be exposed to further conflict regarding their care arrangements, as it is not in their best interests and welfare.

The court found that although the Family Court relied on the wrong provision, its conclusion was correct. The court upheld the Family Court decision to strike out Ms Peeling's appeal on the alternative grounds under s 140 of COCA. The court ordered 2B costs in favour of the first respondent against the appellant, including the additional appearances in the civil appeals list and the filing of the application to strike out. The second respondent did not appear at the hearing, and no order for costs was made in her favour.

Orders