SDW v SEB - [2021] NZHC 3314

IN THE HIGH COURT OF NEW ZEALAND SDW REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-001477

[2021] NZHC 3314

UNDER the Care of Children Act 2004

AND

the Domestic Violence Act 1995

BETWEEN

SDW

Appellant

AND

SEB

Respondent

Hearing: 24 November 2021 (by VMR)

Appearances:

S Jefferson QC and L Reed for Appellant/Cross-Respondent S Mitchell for Respondent/Cross-Appellant

G Askelund for Child

Judgment:

6 December 2021

JUDGMENT OF VENNING J

This judgment was delivered by me on 6 December 2021 at 4.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: McVeagh Fleming, Auckland
Glaister Ennor, Auckland

Counsel: S Jefferson QC/L Reed/,Auckland
S Mitchell, Auckland G Askelund, Taupo

SDW v SEB [2021] NZHC 3314 [6 December 2021]

Introduction [1]

Procedural issues [10]

Background  [12]
The protection order decision  [21]
The protection order appeal  [24]
Care of Children Act decision  [65]

COCA appeal [74]

Result/orders [116]

Term time [118]

Term holidays [121]
Video/phone calls [122]

Changeovers [124]

Result/orders [129]

Costs [131]

Introduction

[1] SDW and SEB are the parents of C. SDW and SEB had a relatively short relationship commencing in approximately June 2015 and ending September 2017. C was born on 10 June 2016. She is currently five years, five months old. SDW lives in Epsom. SEB lives in Pukekohe.

[2] A shared care arrangement (2:2:5:5) had been in place by consent of the parties since November 2017 and confirmed by order of the Court on 1 December 2017. The arrangement worked while C was at pre-school but once she turned five the need for her to attend school raised issues with it. Both parties agree it is impractical and not in C’s best interests to require her to regularly travel between their respective addresses for school as would be required by the current arrangement. SDW considers C should spend the majority of time with him and attend school in Epsom. SEB considers that C should spend the majority of time with her and attend school in Pukekohe.

[3] The relationship between SDW and SEB is a difficult one. The parties were unable to resolve the parenting and related issues concerning C between themselves and have resorted to the Court process. SEB also sought a protection order against SDW.

[4] Over the course of a seven day hearing in the middle of this year Judge S J Maude heard the following applications:1

1 SDW v SEB [2021] NZFC 5836.

(a)SEB’s application for a protection order under the Domestic Violence Act 1995 (DVA) against SDW;

(b)SEB’s application under s 48 of the Care of Children Act 2004 (COCA) to vary the existing parenting orders;

(c)SEB’s application under s 46R of COCA to relocate C to live primarily with her in Pukekohe; and

(d)a related application under s 46R regarding the school C should attend.

[5] The applications under the DVA and COCA had previously been consolidated so were heard together.

[6] The Family Court heard evidence from SDW, his mother, SEB, her mother…

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.

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Details

Case: [2021] NZHC 3314
Decision Date: 6 December 2021

CaseChat Overview and Summary

SDW and SEB are the parents of C, who was born in June 2016. The parents had a relatively short relationship that ended in 2017. The parties had a shared care arrangement (2:2:5:5) since November 2017, which worked while C was at pre-school but became impractical when she started school. The relationship between the parties is difficult, and they could not resolve the parenting and related issues between themselves. They resorted to the Court process, and SEB also sought a protection order against SDW. The Family Court heard evidence from the parties, their parents, and the Court-appointed psychologist, Mr Watts. The Court declined to make a protection order. It varied the existing parenting orders and allowed SEB's application to relocate C to Pukekohe. SDW appealed the parenting order under s 48 of the Care of Children Act 2004 (COCA). He challenges the order that effectively places C in the weekly day-to-day care of SEB. He also seeks leave to appeal the decisions in relation to relocation and schooling. SEB cross-appeals the decision in relation to the Judge's refusal to grant a protection order. The Court dismissed the appeal against the refusal to make a protection order. The appeal against the parenting orders was allowed in part, and the appeal against the relocation and schooling orders was dismissed. The Court reserved the issue of costs.

Orders