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 CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2022-409-000042
[2022] NZHC 2337
UNDER the Care of Children Act 2004 IN THE MATTER
of an appeal against a decision of the High Court at Christchurch
BETWEEN
ROBERTS
Applicant
AND
CRESSWELL
Respondent
Hearing: 5 September 2022 Appearances:
J A Sutton the Applicant
S N van Bohemen and E S M L B Gawar Kohistani for the Respondent
Judgment:
13 September 2022
JUDGMENT OF DOOGUE J
This judgment was delivered by me on 13 September 2022 at 2.30 pm pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
ROBERTS v CRESSWELL [2022] NZHC 2337 [13 September 2022]
[1] This proceeding originated in the Family Court as an application by the father of the parties’ children for their return to France pursuant to s 105 of the Care of Children Act 2004 (the Act). An order for return of the children to France was made by the Family Court.
[2] The applicant seeks leave to appeal the decision of 1 June 2022 which quashed the Family Court order for return of the parties’ children to France (the Judgment).1
Principles governing applications for leave to appeal
[3] The principles to be considered by this Court when considering the leave application are broadly agreed between the parties.
[4] The test for granting leave is well settled.2 The Court of Appeal in the recent case of G v G opined:3
[6] The Act provides for applications for the return of children to be made to the Family Court. There is a right of appeal to the High Court. The decision of the High Court on an appeal from the Family Court is final, subject to s 145 of the Act, which provides for an appeal to this Court with the leave of this Court.
[7] The test for granting leave to bring a second appeal to this Court is well established:
(a)The appeal must raise some question of law or fact capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost and delay of the further appeal.
(b)In the end, the guiding principle must be the requirements of justice.
(c)Upon a second appeal, this Court is not engaged in the correction of error. Its primary function is to clarify the law and to determine whether it has been properly construed and applied by the court below.
(footnotes omitted)
1 Cresswell v Roberts [2022] NZHC 1265 [Judgment].
2 Waller v Hider [1998] 1 NZLR 412 (CA) at 413.
The applicant’s submissions
[5] Counsel for the applicant, Mr Sutton, submitted there were three errors of law, namely…
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