T v Holland
[2025] NZHC 867
•10 April 2025
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,
PLEASE SEE https://www.justice.govt.nz/family/family-court/after-the-family- court/restrictions-on-publishing-information/
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2024-404-2479
[2025] NZHC 867
IN THE MATTER of the Care of Children Act 2004 BETWEEN
T
Appellant
AND
CANDICE HOLLAND
First Respondent
DESMOND HOLLAND and JANE HOLLAND
Second Respondents
Hearing: 8 April 2025 Appearances:
Mr T, appellant in person
No appearance for First Respondent
LF Soljan for the Second Respondents DAD Holbrook counsel for child
Judgment:
10 April 2025
Reissued:
7 May 2025
JUDGMENT OF BECROFT J
This judgment was delivered by me on 10 April 2025 at 3pm pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar
……………………………………
T v HOLLAND [2025] NZHC 867 [10 April 2025]
The nature of this appeal
[1] This appeal concerns the welfare and best interests of a young six-year-old boy, whom I shall call Luke.1
[2] In particular, the appeal relates to one condition of a “separate contact order”2 made in favour of Luke’s “father figure” whom I shall call Mr T. The way that condition was imposed, allegedly in breach of natural justice, is the subject of Mr T’s appeal.
[3] Mr T acted for himself in this appeal. I record that he did so with courtesy, dignity and clarity. He was well prepared.
Luke’s caregiving arrangements
[4] For two years, it was thought that Mr T was Luke’s biological father. However, DNA tests completed in November 2020, over two years after Luke’s birth, revealed that was not the case. By this time, Mr T was not living with Luke’s mother, but he maintained his relationship with Luke.
[5] Luke’s biological father is known, but he has not met Luke. He has no role in these proceedings.
[6] Luke’s mother is his only natural guardian. However, she cannot provide day- to-day care of Luke on account of her methamphetamine addiction and other issues.
[7] Following the Family Court decision, Luke has three guardians—his mother, his maternal aunty, and his maternal grandfather. Luke’s maternal aunty and her partner have day-to-day care of Luke. The Family Court was required to make detailed decisions regarding Luke’s care and who could have contact with him.
[8] The hearing was set down for five days, starting on 9 September 2024. After three days of evidence, agreement was generally reached between the parties. However, the one issue which was not agreed was whether Mr T, as Luke’s father figure, could have ongoing separate contact with Luke and on what basis.
1 Luke’s name and the names of the respondents have been anonymised in this judgment with the use of fictitious names. Mr T is referred to as Mr T consistent with his stated preference.
2 A “separate contact order” is made under the authority of s 48 of the Care of Children Act 2004
The Family Court decision
[9] The Court made a separate contact order in favour of Mr T, largely on the first Monday of every month between 3.00 pm and 6.00 pm, with variations during January and February and additional contact during school holidays. Mr T was also to be advised of, and invited to attend, any sporting, schooling or other special events for Luke.
[10] Mr T does not take substantial issue with that part of the decision, although of course, he would have liked more contact, especially in the summer period when Luke was not playing touch rugby.
[11] However, as a condition of Mr T’s separate contact order, the Judge ordered that Ms RH (Mr T’s mother) may not have any contact with Luke at any time.
[12]It is this condition, and the way it was imposed, which is challenged by Mr T.
The central issue discussed
[13] Ms RH was at Luke’s birth. For two years, she thought she was Luke’s biological grandmother and throughout that time played a role in his life. She has not done so since. Partly this is because there was conflict between her and Luke’s maternal family. Also, the parties were waiting for the Court to rule on all matters relating to Luke’s care.
[14] Mr T’s view is that this condition “came out of the blue” during the judge’s decision. He says he had assumed his mother would be able to come with him on some occasions when he had contact with Luke. He says he had no chance to be heard on this issue. His mother had filed an affidavit but was not required at the hearing for cross-examination. Counsel agree that ordinarily Mr T would be free to bring any adult with him while exercising his contact with Luke, subject to any concerns raised by Luke’s guardians.
[15] Ms Soljan, counsel for Luke’s maternal aunty and maternal grandfather, and Ms Holbrook, lawyer for the child, strongly oppose the appeal. They say Luke’s three guardians agreed to Mr T having contact with Luke, but not Luke having contact with Ms RH—Mr T’s mother. The guardians felt that this was not in Luke’s best interests.
Ms Holbrook says that a memorandum indicating the agreement between the guardians was prepared, but not signed, and has now been lost. She says that she put the guardian’s agreement to the Court, in Mr T’s and his lawyer’s presence. Ms Holbrook says that Mr T and his lawyer well knew of the condition that was sought regarding Ms RH not having contact with Luke at any time. Ms Holbrook says that neither the lawyer, nor Mr T, indicated they had any objection.
[16] In counsels’ view, the matter proceeded entirely appropriately, with Mr T’s full knowledge, and the Judge’s decision should stand.
[17] After considerable argument, I was concerned as to why the Judge had not specified any reasons for banning Ms RH from having contact with Luke at any time. It also appeared there may have been a breach of Mr T’s natural justice rights, in that he had not been given any opportunity to be heard about why he wanted his mother to be part of his separate contact rights with Luke. I accept that if Mr T had been given the opportunity to do so, the result might still have been the same, given the guardians’ united opposition to Ms RH having any involvement with Luke. But that is not the point. The right to be heard is an important one.
Resolution
[18] However, after the morning adjournment, Ms Soljan drew my attention to three paragraphs in Mr T’s affidavit in reply. The affidavit, sworn on 22 March 2023, was filed in evidence at the original hearing. The relevant paragraphs were prepared in response to Luke’s maternal grandfather’s comments stating he was extremely concerned about the impact that Mr T’s mother might have on Luke, if given any opportunity to contact him. He had no faith that Ms RH could resist expressing her opinions and her hostility about Luke’s maternal side of the family and was concerned she would do so in Luke’s presence if given the opportunity.
[19]In reply, Mr T deposed as follows:
Paragraph 32
[25]My mother will not be involved with any broadened contact with Luke. I would like to spend time with us two building on our relationship together in ways that I been [sic] restricted to through supervised contact.
[26]As stated in my affidavit, my mother does not have any influence over me. She had attempted to help me throughout these proceedings by holding accountability. I accept this has been perceived as threatening and could have responded differently.
[27]Ultimately my mother and I are happy to move forward. She understands this is in Luke’s best interests.
[20] When faced with the evidence, Mr T first said that he did not remember making that statement, or that he never meant that his mother would be excluded forever from contacting Luke. Then he said it was not his position at the time of the hearing. However, he was given the opportunity when giving evidence at the hearing to explain his current position. As I read the evidence, at no stage did he or his lawyer provide any alteration to the position he had expressed in the above paragraphs in his affidavit.
[21] It is therefore clear that Mr T’s application was framed with his mother not being involved with any broadened contact with Luke. He emphasised his wish to spend time with Luke and to build his own relationship with him. He also made clear that, going forward, his mother understood why it was in Luke’s best interests that she had no further contact with Luke.
[22] In light of Mr T’s evidence, any concern that he might have with the condition imposed by the Judge, falls away. He had made clear to the Judge, through his affidavit, that his mother would not be involved with any contact with Luke. I infer that this was a price he was prepared to pay in terms of having regular contact with Luke.
[23] In those circumstances, the Judge cannot be faulted for imposing the condition that she did. After all, this was exactly what Mr T said was his position.
[24] Neither can the Judge be faulted for failing to explicitly raise the issue before imposing the condition, nor for asking Mr T’s view on the condition. There was no breach of natural justice in this situation.
[25] I emphasise that Ms RH was not and is not a party to the proceedings. Mr T argued that it was wrong for the Court to make a “negative” order about her without having heard from her. As I say, Mr T had made clear that he was not seeking that his mother have any contact with Luke, as part of his application for contact with Luke. Indeed, he had made it explicit that his mother would not have any contact.
[26] Mr T continued to assert to this Court that natural justice and procedural rights had been breached. As I explained to him, I reach a different conclusion. I record that none of the cases which he carefully referred to, and upon which he based his argument, can apply in these specific circumstances. There is no breach of a right to be heard on a matter which had been expressly excluded from his application.
Conclusion
[27] In my view, given his evidence and the way he framed his application, there is nothing in the appeal.
[28] I also made clear to Mr T that all is not “lost forever” as he put it. The condition may not need to continue forever. For instance, he can apply under s 56 of the Care of Children Act 2004 (the Act) for variation of this condition of his contact order. I do however point out that within the first two years after the making of the order, that requires leave under s 139A which will be a matter for the Family Court to consider.
[29] Also, Ms RH could seek leave to apply under s 47 and then apply under s 48 of the Act, in her own right, for contact with Luke.
[30] I set this out simply to make plain to Mr T that neither he nor his mother are without legal options in the future.
[31] However, might I suggest that legal proceedings are perhaps not the best way of solving this issue in the long term given that, in the absence of agreement from Luke’s guardians, it seems unlikely that Ms RH would be permitted contact in the short term. Mr T may therefore be better off by continuing to prove himself to be a responsible, caring and encouraging father figure to Luke in the contact he does have. And he could encourage his mother, for her part, to bring to an end any hostility she has demonstrated towards Luke’s biological family—although I am conscious of her position that “it goes both ways”. Should those things be done, it may be that one day Luke’s guardians would be prepared to allow Ms RH to be part of Mr T’s separate contact with Luke, and to have the relevant condition removed or varied by consent. Agreement, in these circumstances, is surely a preferable resolution.
[32] What is clear, however, is that the appeal cannot succeed, and it must be dismissed.
[33]I rule accordingly.
Costs
[34] As to costs, given Mr T’s clear statement in his affidavit, his appeal is misconceived. It could not succeed. In these circumstances, my preliminary view is that I see no reason why he should not pay costs for the appeal. Costs should be on a scale 2B basis. In my view, this conclusion is reinforced by the fact that he could have sought leave to apply for a variation of the challenged condition, or his mother could have sought leave to apply for contact with Luke in her own right. Instead, Mr T took the appeal route, which as I say, in these circumstances, was doomed. Given that indication, the parties are encouraged to settle issues of costs between themselves.
[35] However, if agreement cannot be reached, the parties may file memoranda as to costs, no longer than three pages in length. The respondents should file submissions within 14 days from the date of delivery of this judgment. If Mr T has a different view as to costs, he should provide a brief written memorandum setting out his views. He has 14 days to do so from the date of receipt of the respondents’ submissions.
Becroft J
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