Thomas v Kane - [2021] NZHC 1211

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IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV 2020-419-91

[2021] NZHC 1211

UNDER
Section 143 of the Care of Children Act 2004

Section 177 of the Family Violence Act 2018

IN THE MATTER OF

An appeal from the Family Court

BETWEEN

THOMAS

Appellant

AND

KANE

Respondent

Hearing: 22 April 2021

Appearances:

Appellant in person

K L Hoult and B Burton-McKenzie for the Respondent

Judgment:

27 May 2021

JUDGMENT OF CAMPBELL J

This judgment was delivered by me on 27 May 2021 at 2:30 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

THOMAS v KANE [2021] NZHC 1211 [27 May 2021]

Introduction

[1] Mr Thomas and Ms Kane married in 2008. They have a son, Peter, who was born in 2011.1

[2] Mr Thomas and Ms Kane separated briefly in July 2016, and then finally in December 2016. Until separation, they and Peter were living in Auckland.

[3] On 12 December 2016, Ms Kane obtained an interim parenting order from the Family Court that provided she would have day-to-day care of Peter, with Mr Thomas having supervised contact. Ms Kane also obtained a temporary protection order against Mr Thomas. Having obtained those orders, Ms Kane moved with Peter to Hamilton. Mr Thomas remained in Auckland. They have lived in those respective cities since then.

[4] On 11 August 2017, Judge D R Brown discharged the temporary protection order and made a final protection order. In December 2017, Mr Thomas applied to discharge the final protection order. He applied again in January 2018. His applications were dismissed by Judge R H Riddell on 19 July 2018.

[5] On 5 November 2018, the interim parenting order was varied to provide that Mr Thomas was to have unsupervised contact for six consecutive Saturdays, with a view to his contact being extended to overnight contact in Auckland. In due course his contact was extended to every second weekend.

[6] In May 2019, Mr Thomas applied for a parenting order in his favour. He proposed that Peter should live with him in Auckland, and have contact with Ms Kane every weekend. He also applied for a guardianship direction authorising him to enrol Peter at a particular school in Auckland. In June 2019, Mr Thomas made another application to discharge the final protection order.

[7] Mr Thomas’s applications, together with other related matters, were the subject of a five-day hearing before Judge A J Twaddle in February 2020. The Judge

1 With the parties’ consent, fictitious names have been used in this judgment.

delivered judgment on 19 March 2020.2 His Honour dismissed Mr Thomas’s application to discharge the protection order, discharged the interim parenting order made on 12 December 2016, and made a final parenting order…

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 Thomas v Kane

Details

AGLC: Thomas v Kane [2021] NZHC 1211
Case: [2021] NZHC 1211
Decision Date: 27 May 2021

CaseChat Overview and Summary

Mr Thomas and Ms Kane were married in 2008 and have a son, Peter, born in 2011. They separated in December 2016, after which Ms Kane obtained an interim parenting order that gave her day-to-day care of Peter, and a temporary protection order against Mr Thomas. Mr Thomas made various applications to discharge the protection order and for a parenting order in his favour. The Family Court dismissed his applications, but allowed his contact with Peter to increase. In March 2020, the Family Court dismissed Mr Thomas’s application for a parenting order in his favour, and made a final parenting order that Peter is to be in Ms Kane’s day-to-day care, with Mr Thomas having specified contact. Mr Thomas appealed against the Family Court’s decision to dismiss his application to discharge the protection order, and the decision to make the final parenting order. The appeal was dismissed. In his appeal, Mr Thomas did not challenge any of the Family Court’s findings that supported its decisions. Instead, he submitted that the Family Court should have reached a different decision. The appeal against the Family Court’s decision to dismiss his application to discharge the protection order was unmeritorious. The Family Court had carefully considered the evidence against the background legal framework, and made an entirely correct decision. Similarly, the appeal against the Family Court’s decision to make the final parenting order was unmeritorious. The Family Court had made a number of relevant findings, including that Peter wanted to remain in his mother’s care and at his present school; Mr Thomas’s competence as a parent was seriously compromised; Ms Kane was more likely to meet Peter’s parenting needs; Peter was settled at his school and doing very well academically; and Peter would probably be unsettled, and his educational progress impaired, if he were moved to a new school. Given those findings, the Family Court’s decision not to order that Peter’s day-to-day care be with Mr Thomas or that he change schools was well justified. None of the matters raised by Mr Thomas persuade me that such an order should be made. The Family Court made the correct decision. Mr Thomas’s appeal is dismissed, and he is to pay costs on the appeal to Ms Kane.

Orders