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]                  SEB also emphasised the risks that she perceived of contact between her and SDW. The Family Court judgment also required some contact, but to a lesser degree. However, SEB’s concerns can be addressed by both parties acting responsibly. Both are intelligent people who should by now have moved on from their relationship. Their focus should be on the interests of C.

[10]              Relevantly, Mr Askelund, who has been counsel for the child throughout, submitted that C’s welfare and best interests would not be promoted by the stay being granted.

Appeal will not be nugatory

[11]              SEB accepted that the appeal (if leave is granted) would not be rendered nugatory if a stay was declined.

Status quo

[12]              SEB submitted that the status quo supports the orders of the Family Court being reinstated pending the hearing of the application for stay. However, the orders of the Family Court had limited effect. The Family Court orders themselves altered a previous arrangement. Changes were required because C was able to start school after she turned five on 10 June 2021. The Family Court orders were operative from the start of term three 2021. However, for the most part of term three and all of term four 2021 the school was not open due to lockdown. To that extent, there is no established status quo.

[13]              Further, the orders of this Court on appeal were, as Mr Jefferson QC described, at most “a tweak” of the arrangements in the Family Court.

[14]              Mr Askelund also made the point that this Court’s judgment was not a significant departure from the terms of the Family Court judgment. He was of the view that, even if SEB was granted leave and the appeal was ultimately successful and the Family Court orders reinstated, that would not involve a substantial or concerning change in the care arrangements. It would not be overly traumatic for C to adjust again.

General

[15]              The proposed appeal does not raise any issues of public interest. It is intensely factual. The issues between the parties were traversed for a number of days in the Family Court and during a full day hearing in this Court.

Conclusion

[16]              In short, the Court is not satisfied that the welfare of C will be served by an order for stay. The appeal will not be rendered nugatory if leave is granted to appeal and a stay is granted. There are no compelling status quo arguments to stay the High Court judgment and reinstate the Family Court judgment.

[17]For those reasons the application for stay was dismissed.

[18]Costs reserved.

Venning J