R v B - [2016] NZHC 283

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 WELLINGTON REGISTRY

CIV-2015-485-225 [2016] NZHC 283

BETWEEN
R

Appellant

AND

B Defendant

Hearing: 5 August 2015

Counsel:

L A Andersen and S G Tarrant for Appellant
W Davis for Respondent
S J Stevenson, Lawyer to Assist

Judgment:

26 February 2016

RESERVED JUDGMENT OF ELLIS J

I direct that the delivery time of this judgment is
4 pm on the 26th day of February 2016

R v B [2016] NZHC 283 [26 February 2016]

[1] R and B were formerly in a relationship and have an eight year old child, J. J

lives with B. R has had no contact with his daughter since 19 April 2010.

[2] R has appealed against a decision of the Family Court declining his application under s 48 of the Care of Children Act 2004 (COCA) for contact with J. Judge Walsh determined that it is not presently in J’s best interests to have even supervised contact with him.1 He seeks to have that decision quashed and substituted orders made permitting him professionally supervised, monthly, contact.

[3] In light of s 4(2)(a)(i) of COCA and the regrettable delay in issuing this judgment I record at the outset that I was advised that J has no knowledge of R’s appeal.2

Statutory matrix

[4] Before turning to address the merits of the appeal it is necessary to set out the key statutory provisions which have a bearing on its outcome.

[5] The purpose of the COCA is twofold: to promote children's welfare and best interests by helping to ensure that appropriate arrangements are in place for their guardianship and care and to recognise certain rights of children.

[6] The Care of Children Amendment Act (No 2) 2013 made changes to a number of provisions applicable in this case. Those amendments came into force on 31 March
2014.

Section 4 - the paramount consideration

[7] Section 4 confirms the longstanding principle that the welfare and best interests of the child are the first and paramount consideration in applications and
proceedings under the Act.

1 R v B [2015] NZFC 1383.
2 Section 4(2)(a)(i) articulates the principle that decisions affecting the child should be made and implemented within a time frame that is appropriate to the child's sense of time.

[8] Section 4 provides that, when considering the welfare and best interests of a child in his or her particular circumstances, a Court:

(a) must take into account the principles of s 5 of the Act: s 4(2)(a)(ii);

(b)may take into account the conduct of the parties to the extent that the conduct is relevant to the child’s welfare and best interests s 4(2)(b);

(c) must not make decisions about day-to-day care based on gender s 4(3); and

(d)may take into account other matters relevant to…

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 R v B

Details

AGLC: R v B [2016] NZHC 283
Case: [2016] NZHC 283
Decision Date: 26 February 2016

CaseChat Overview and Summary

In this case, R appeals against a decision of the Family Court declining his application under s 48 of the Care of Children Act 2004 for contact with J, his eight-year-old daughter. J lives with her mother B and R has had no contact with his daughter since 19 April 2010. He seeks to have the decision quashed and substituted orders made permitting him professionally supervised, monthly, contact. The appeal was heard by Rebecca Ellis J. The court began by considering the statutory matrix. It noted that the purpose of the Care of Children Act 2004 is to promote children's welfare and best interests by helping to ensure that appropriate arrangements are in place for their guardianship and care and to recognise certain rights of children. The paramount consideration in all proceedings under the Act is the welfare and best interests of the child in his or her particular circumstances. The court must also consider the principles in s 5 of the Act which include that a child’s safety must be protected and, in particular she “must be protected from all forms of violence (as defined in section 3(2) to (5) of the Domestic Violence Act 1995) from all persons”; and that a child “should have continuity in her care, development and upbringing”. The court noted that the child’s views expressed directly or through a representative must be taken into account in any decision under the Act: s 6(2). The court considered the evidence. It found that there was evidence of R’s history of violence, including his history of convictions for violent offending and breaching protection orders. There was evidence that R had been psychologically abusive to J. The court also found that B remained particularly vulnerable and that she is very likely to become acutely stressed and anxious if contact is resumed. The court held that, on the evidence, there was no basis upon which it could reasonably differ from Judge Walsh’s conclusions. Given the concerns for J’s welfare that arose from B’s likely reaction to contact (and its flow on effects) the court held that it was not in J’s best interests to allow contact at this time. The appeal was dismissed.

Orders