S v L - [2022] NZHC 3062

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.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-419

[2022] NZHC 3062

UNDER the Care of Children Act 2004

IN THE MATTER

of an appeal for a decision of the Family Court

BETWEEN

S

Appellant

AND

L

Respondent

Hearing: 8 June 2022

Appearances:

L J Kearns KC for Appellant J Moore for Respondent

A J Bell Lawyer for Child

Judgment:

23 November 2022

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 23 November 2022 at 12 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date: ...................................

S v L [2022] NZHC 3062 [23 November 2022]

Introduction

[1] This judgment determines matters arising from orders made by Judge Goodwin in the Family Court in March 2022.1

[2] Two matters were before the Judge. The first was an application by S for a guardianship direction pursuant to s 46R of the Care of Children Act 2004 (“COCA”). The direction sought was that S should be allowed to relocate her and the respondent’s, L’s, children, aged eight and 11, to Tauranga. The Judge declined to make that direction.

[3] The second matter was the care arrangements in respect of the children, to be addressed under s 48 of COCA, if the children were to remain in Auckland. S sought to vary the existing arrangements for the care of the children, being that each parent was to have the care of the children for rotational, four day periods. If the children were to remain in Auckland, S wished that each parent should have the care of the children week about.

[4] The Judge declined this application also. Rather, for reasons addressed below, the Judge varied the existing arrangements to five nights to S and three to L, on the same rotational basis.

Principles

[5] S does not require leave to appeal the parenting order but does require leave to appeal the guardianship direction.2 Leave to appeal a guardianship direction will only be granted if the appeal raises a sufficiently important issue. A full exposition of the principles governing leave can be found in SFB v JEBH.3

[6] It is common ground that an appeal under ss 46R and 48 of COCA proceeds by way of a general appeal, and that the principles in Austin, Nichols & Co Inc v Stitching Lodestar apply.4

1      [L] v [S] [2022] NZFC 885.
2      Care of Children Act 2004, s 143(2).
3      SFB v JEBH [2015] NZHC 2897.
4      Austin, Nichols & Co Inc v Stitching Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.

Background

[7] The parties separated in 2018. S was then in her early-30s and L in his mid-40s. For most of their relationship L had been employed at schools here and…

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 S v L

Details

AGLC: S v L [2022] NZHC 3062
Case: [2022] NZHC 3062
Decision Date: 23 November 2022

CaseChat Overview and Summary

In this case, the High Court was asked to review decisions made by the Family Court in relation to guardianship and care arrangements for two children, following the separation of their parents, S and L. The Family Court had previously declined S's application for a guardianship direction to relocate the children to Tauranga and to change the existing care arrangements from a four-day rotational schedule to a week-on, week-off schedule. S appealed these decisions, arguing that the Family Court had erred in not taking sufficient account of certain factors, including L's conduct and the implications for S in maintaining the existing arrangement. The court had to decide whether the Family Court's decisions were in the best interests of the children.

The court found that the Family Court did not err in declining S's application for a guardianship direction to relocate the children to Tauranga. The court was satisfied that it was in the best interests of the children to remain in Auckland, as relocation would inevitably result in less frequent contact with their father and require considerable travel. However, the court was not persuaded that the Family Court had sufficiently investigated the possibility of implementing the week-on, week-off care arrangement that S proposed. The court considered that the week-on, week-off arrangement was in the best interests of the children, as it would provide them with a more predictable schedule and fewer change-overs. The court held that it was an error not to pursue this option more determinedly and remitted the matter back to the Family Court for reconsideration and directions in accordance with this decision.

The court declined leave to appeal against the Family Court's order under s 46R of the Care of Children Act 2004. However, the court allowed the appeal under s 48 of the Care of Children Act 2004 and remitted the matter back to the Family Court for reconsideration and directions in accordance with this decision. As each party had enjoyed a measure of success, costs were to lie where they fell.

Orders