Roberts v Cresswell - [2022] NZHC 2337

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.
3      G v G [2022] NZCA 67.

The applicant’s submissions

[5] Counsel for the applicant, Mr Sutton, submitted there were three errors of law, namely…

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 Roberts v Cresswell

Details

AGLC: Roberts v Cresswell [2022] NZHC 2337
Case: [2022] NZHC 2337
Decision Date: 13 September 2022

CaseChat Overview and Summary

Roberts v Cresswell [2022] NZHC 2337 is a case involving an appeal against a decision of the High Court at Christchurch regarding an application by the father of the parties’ children for their return to France under s 105 of the Care of Children Act 2004. The Family Court had previously made an order for the return of the children to France. The applicant seeks leave to appeal the decision of 1 June 2022, which quashed the Family Court order for the return of the children to France. The legal issues the Court was required to decide include whether there was a grave risk of harm to the children if returned to France, the Court’s approach to evidence, and the consideration of protective factors that could mitigate the risks. The Court found that there was a grave risk of harm to the children if returned to France, and that the Court’s approach to evidence and consideration of protective factors were appropriate. The Court declined the application for leave to appeal, stating that there was no question of law that requires consideration by the Court and that the requirements of justice weigh against leave being granted.

Orders