RM v JB - [2022] NZHC 1126

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 AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-488-000091

[2022] NZHC 1126

IN THE MATTER of an appeal against the decision of the Family Court dated 4 August 2021

BETWEEN

RM

Appellant

AND

JB

Respondent

Hearing: 30 November 2021 and 1 December 2021

Counsel:

L J Kearns QC and K Cohen for Mr M C Muston for Mrs B

V A Crawshaw QC and M Davies for Ms K N J Dore and G Thompson for Mr B

D W Hart for the children (V and L)

Judgment:

20 May 2022

JUDGMENT OF KATZ J

This judgment was delivered by me on 20 May 2022 at 3:30 pm pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors: Thomson Wilson
Henderson Reeves Connell Rishworth Wills Westenra Ltd
C Muston D W Hart

Counsel: L J Kearns QC
V A Crawshaw QC

M v B [2022] NZHC 1126 [20 May 2022]

CIV-2021-488-000097 CIV-2021-488-000098

IN THE MATTER of an appeal against the decision of the
Family Court dated 4 August 2021

BETWEEN KV
Appellant in CIV-2021-488-000097 Respondent in CIV-2021-488-000098

AND CB
Appellant in CIV-2021-488-000098 Respondent in CIV-2021-488-000097
Table of Contents

Introduction........................................................................................................... [1]
Background............................................................................................................ [7]
The Care of Children Act 2004........................................................................... [15]
Section 4 – Child’s welfare and best interests to be paramount  [16]
Section 5 principles  [17]
Parenting and contact orders  [20]

Approach on appeal............................................................................................. [22]

Mr and Mrs B’s past behaviour.......................................................................... [25]

The Judge’s concerns [26]

The potential risks associated with Mr and Mrs B’s polyamorous lifestyle,
and strategies to mitigate those risks  [30]
Have V and L been exposed to adult sexualised behaviours in the B home? [34] Have V and/or L been introduced to short-term partners of Mr and Mrs B? [36] Were Mr and Mrs B child focused and appropriately nurturing to V and L? [40] Were V and/or L psychologically abused?   [42]
Does Mr and Mrs B’s past behaviour raise safety concerns?  [57]
Did the Judge err in concluding that shared care would be in V’s
best interests?....................................................................................................... [62]
The Family Court decision  [63]
What are the risks to V’s psychological safety in the B household?  [68] Did the Judge place undue weight on V’s views and/or the status quo?  [83] Is shared care in V’s best interests?  [88]
Did the Judge err in her determination of the final parenting order in
respect of L?......................................................................................................... [91]
The Family Court decision  [93]
What are the risks to L’s psychological safety in the B household?  [97]
Was the Judge correct to order unsupervised daytime contact and
supervised overnight contact?  [112]
Is the condition that L not be exposed to nor educated in his father’s
polyamorous lifestyle appropriate?  [119]
Are the conditions of the parenting order requiring L’s parents to obtain…

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 RM v JB

Details

AGLC: RM v JB [2022] NZHC 1126
Case: [2022] NZHC 1126
Decision Date: 20 May 2022

CaseChat Overview and Summary

This appeal was brought from a decision of the Family Court, which made final parenting orders under the Care of Children Act 2004 (the Act) relating to two stepsiblings – a nine-year-old girl (V) and a five-year-old boy (L). The parents of the children brought separate appeals against the final parenting orders. The issues raised on appeal were whether the Family Court Judge had correctly assessed the risk of psychological harm to V and L in the B household. The parents of V and L each appealed the Family Court's final parenting orders in respect of their children. The appeal against the final parenting orders in respect of V was dismissed. The appeal against the final parenting orders in respect of L was allowed in part. The finding that L was psychologically abused in his father's care was set aside. The order that required L's parents to obtain a psychiatric diagnosis and agree a treatment plan before overnight contact commenced was removed. The order that required L to be transported in a five-point car seat harness was amended. The order that required that Mrs B not be present at changeover for L was amended. The remainder of the final parenting orders relating to L were confirmed.

Orders