Shaw v Brown - [2014] NZHC 2843

NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO
11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE COURT/LEGISLATION/RESTRICTIONS-ON-PUBLICATIONS.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-001907 [2014] NZHC 2843

BETWEEN
SHAW

Appellant

AND

BROWN Respondent

Hearing: 21 October 2014

Appearances:

A J Cooke and T L M Norton for Appellant A Dullabh and S D Bennett for Respondent A K Finnie for Children

Judgment:

14 November 2014

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 14 November 2014 at 4.00 pm
pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date……………………….

SHAW v BROWN [2014] NZHC 2843 [14 November 2014]

Introduction

[1] The appellant, Mr S and the respondent, Ms B, separated in 2010. Initially Ms B had the day-to-day care of their son L (now aged 11) and daughter N (now aged 7), with Mr S having contact at weekends. Following a Family Group Conference in October 2012 a trial shared care arrangement was implemented, with the parties having day-to-day care on a week about basis. Following a hearing in the
Family Court that arrangement was confirmed.1

[2] Mr S appeals the Family Court decision on the ground that it was against the weight of evidence and that Judge Maude made errors in his assessment of the evidence. The specific grounds of appeal can be summarised as error by the Judge in:

(a) Finding that the accommodation provided by Ms B was not inappropriate;

(b) Finding that Ms B’s arrangements for child care when she was

working night shifts were not to be criticised;

(c) Finding that Mr S was unwilling to communicate with Ms B regarding the children;

(d) Failing to separate the issue of communication between the parties

from their response to the specific issue of L’s bedwetting;

(e) Finding that Mr S had failed to ensure that professional help was

sought and carried through in relation to L’s bedwetting;

(f) Wrongly attributing Ms B’s failure to appropriately address L’s

bedwetting to the issue of communication between the parties;

(g) Failing to give sufficient weight to the inadequacy of Ms B’s

explanation for not completing the necessary parenting programmes;

1 B v S [2014] NZFC 4204.

(h) Finding that the children had not been coached by Ms B;

(i)Relying on the evidence of a social worker who was not familiar with the file and had not prepared the s 132 report;

(j)Failing to take into account the evidence of the financial and other resources available to Mr S in assessing the best interests and welfare of the children.

[3] The appeal is a general appeal brought under s 143 of the Care of Children Act 2004 (CoCA). The approach is that described in Austin, Nichols & Co Inc v Stichting Lodestar.2 It is for Mr S to persuade me that the Family Court’s decision was wrong and, if…

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 Shaw v Brown

Details

AGLC: Shaw v Brown [2014] NZHC 2843
Case: [2014] NZHC 2843
Decision Date: 14 November 2014

CaseChat Overview and Summary

In Shaw v Brown, the appellant, Mr S, appeals the Family Court's decision to confirm a shared care arrangement for the children, L and N, with the respondent, Ms B. The appeal is based on the contention that the Family Court's decision was against the weight of the evidence and contained errors in the assessment of the evidence. The High Court, Justice Courtney, reviews the Family Court's decision under the principles set out in sections 4, 5, and 6 of the Care of Children Act 2004. The Court finds that while the Family Court's overall assessment of the evidence was correct, there were errors in the criticism of Mr S for not visiting N after she came out of hospital and in finding that the children had not been coached by Ms B. Additionally, the Court considers that the Family Court erred in attempting an assessment of what was in the children's best interests without expert assistance regarding the nature and extent of L's behavioural issues and needs. The appeal is allowed, and the matter is postponed, pending receipt of counsels' memoranda regarding a psychological report.

Orders