Sinclair v Oliver - [2020] NZHC 592

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. FOR FURTHER INFORMATION,

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IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

I TE KŌTI MATUA O AOTEAROA TE TIHI-O-MARU ROHE

CIV-2017-476-000008

[2020] NZHC 592

BETWEEN
EMMA SINCLAIR

Appellant

AND

MARK OLIVER

Respondent

Hearing: 18 October 2019

Appearances:

J Mason for the Appellant

Respondent – self represented
C A Gibson as counsel for the child

Judgment:

20 March 2020

JUDGMENT OF NATION J

The names of the parties, the child and non-professional witnesses are fictitious.

Background

[1] Chloe was born on […] in […]. Her mother, Emma (the mother), married Mr Sinclair in 1990. They had three children. […]. Mark Oliver (the father) began an affair with the mother in May 2009. The mother and father continued their liaison between May 2009 and August 2014 but only lived together for four to six months over that time. The mother continued in the marriage with Mr Sinclair but with a number of separations.

SINCLAIR v OLIVER [2020] NZHC 592 [20 March 2020]

[2] In April 2014, the father, mother, Chloe and the mother’s youngest child relocated to […] and lived together for a time with the mother’s parents, Mr and Mrs Carter. The mother subsequently reconciled with her husband, Mr Sinclair. They moved to […]. The father moved to live in […] where he had children from an earlier relationship.

[3] In December 2014, the mother and father became involved in proceedings in the Family Court over the care of Chloe. The mother made allegations that the father had been involved in indecent touching and verbal abuse of Chloe. The father made allegations against Mr Sinclair suggesting he was a danger to Chloe.

[4] On 5 December 2014, a Judge in the Family Court made interim parenting orders that the mother have day-to-day care of Chloe. The father was to have contact supervised by a professional supervisor, as arranged by counsel for Chloe, Ms Carlyle Gibson. After February 2015, the father had supervised contact with Chloe every second weekend in […], involving [many] hours of travel each way.

[5] In proceedings in the Family Court, the father asked for Chloe to be placed in his primary day-to-day care in […]. The mother wished to continue having Chloe in her care and for the father’s contact to be indefinitely supervised.

[6] Issues between the parents were the subject of a hearing over three days, 18, 19 and 20 January 2017, and were the subject of a comprehensive oral judgment of Judge Walsh of 20 January 2017 (the first decision)

The first decision

[7] Judge Walsh discharged the interim parenting order and placed Chloe in the day-to-day care of the father, with the mother to have unsupervised contact every second weekend in […] or such other place as the parties might agree. Relevantly, Chloe was not to…

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 Sinclair v Oliver

Details

AGLC: Sinclair v Oliver [2020] NZHC 592
Case: [2020] NZHC 592
Decision Date: 20 March 2020

CaseChat Overview and Summary

Emma Sinclair (the mother) and Mark Oliver (the father) were the parents of Chloe. The mother appealed decisions of Judge Walsh in the Family Court. The mother sought an order that Chloe be placed in her care. The father opposed the appeal. The mother was represented by counsel. Chloe was represented by counsel appointed by the Court. The mother sought to appeal both decisions. The mother argued the decisions were based on a misunderstanding of the evidence. The mother also argued Chloe's views had not been properly ascertained and given sufficient weight. The father submitted the appeals should be dismissed. The father argued the mother was still fixated on discrediting him as a parent to Chloe. The Court rejected the mother's criticisms of the first decision. The mother's appeal against the first decision was dismissed. The mother also appealed the second decision. The mother argued Chloe's views had not been properly ascertained and given sufficient weight. The Court rejected the mother's criticisms of the second decision. The mother's appeal against the second decision was dismissed. The mother's appeal against both decisions was dismissed. The father and mother were ordered to contribute equally to the costs of the child's counsel for the appeal.

Orders