SEB v SDW - [2022] NZHC 148

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-001477

[2022] NZHC 148

UNDER the Care of Children Act 2004 and s 60 of the Senior Courts act 2016

BETWEEN

SEB

Appellant

AND

SDW

Respondent

Hearing: 10 February 2022 (by telephone)

Appearances:

Appellant in Person

S Jefferson QC for Respondent G Askelund for Child

Judgment:

10 February 2022

Reasons:

10 February 2022

REASONS FOR JUDGMENT OF VENNING J ON STAY APPLICATION

This judgment was delivered by me on 10 February 2022 at 3.30 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
G Askelund, Taupo

SEB v SDW [2022] NZHC 148 [10 February 2022]

Introduction

[1] The judgment of 6 December 2021 refers.1 In that judgment this Court allowed SDW’s appeal in part. While the Court confirmed SEB’s application to relocate C to Pukekohe and to attend the school proposed by SEB it adjusted the days that C spent with her respective parents. To that extent it varied the parenting order of the Family Court.2

[2]The new arrangement applies from the start of the 2022 school year.

[3]SEB has sought leave to appeal to the Court of Appeal from that decision.3

[4] The Court of Appeal has advised that the leave to appeal could be listed on 14 March 2022.

[5] In the meantime, pending the Court of Appeal’s consideration of her leave application, SEB seeks a stay of the judgment of this Court which would effectively reinstate the Family Court decision. The application is opposed by SDW.

[6] At the conclusion of the hearing the Court advised the parties that SEB’s application for stay was dismissed with reasons to follow. These are the reasons.

Principles

[7] The principles to apply on an application for stay generally in relation to an appeal in care of children matters are settled.4 The particularly relevant considerations in the present case are:

(a)the overriding consideration is the welfare of the child;

(b)whether the appeal will be rendered nugatory;

1      SDW v SEB [2021] NZHC 3314.
2      SDW v SEB [2021] NZFC 5836.
3      Care of Children Act 2004, s 145(1).
4      WAH v WTW [2010] NZCA 344.

(c)the argument in favour of a stay will be stronger if the decision under appeal has the effect of significantly changing the status quo.

The welfare of the child

[8] SEB submitted the Court’s decision was inconsistent with the evidence of the Court appointed psychologist as to the importance of meaningful or quality time with both parents. With respect however, SEB’s submissions focused on her subjective views as to the impact of the orders on her and her definition of quality or meaningful time with C.

[9]…

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: [2022] NZHC 148
Decision Date: 10 February 2022

CaseChat Overview and Summary

The case of SEB v SDW was heard by the High Court of New Zealand. The matter involved an appeal by SEB against a decision made by the Family Court concerning the relocation of their child, C, and the school she would attend. SDW opposed the appeal and the application for a stay of the Family Court's decision. The Court of Appeal had indicated that the leave to appeal could be listed on 14 March 2022. Pending the Court of Appeal's consideration of the leave application, SEB sought a stay of the High Court judgment, effectively reinstating the Family Court decision. The legal issues before the court were whether the welfare of the child would be served by granting a stay, whether the appeal would be rendered nugatory if leave was granted and a stay was not, and whether there were compelling status quo arguments to support a stay.

The Court held that the welfare of the child was the paramount consideration, but SEB's arguments focused on her subjective views and did not convincingly demonstrate that the High Court's decision was inconsistent with the evidence presented. The Court found that SEB's concerns about contact with SDW could be addressed by both parties acting responsibly. The Court also found that the appeal would not be rendered nugatory if leave was granted and a stay was not, and that there were no compelling status quo arguments to support a stay. The Court concluded that the application for stay was dismissed.

The Court's decision was based on the principles established in previous cases concerning applications for stay in care of children matters, with particular relevance to the welfare of the child, the potential for the appeal to be rendered nugatory, and the status quo. The Court found that the welfare of the child would not be served by granting a stay, and that the appeal would not be rendered nugatory if leave was granted and a stay was not. The Court also found that there were no compelling status quo arguments to support a stay. Therefore, the application for stay was dismissed. Costs were reserved.

Orders