Thorpe v Barrett - [2015] NZHC 3344

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

THE-FAMILY-COURT/LEGISLATION/RESTRICTION-ON-PUBLISHING- JUDGMENTS

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-001256 [2015] NZHC 3344

UNDER the Care of Children Act 2004

IN THE MATTER OF

an appeal against a decision of the Family
Court at Auckland dated 12 May 2015

BETWEEN

THORPE Appellant

AND

BARRETT Respondent

Hearing: 2 December 2015

Appearances:

A E Ashmore for Appellant
Respondent in person
L J Kearns for Children

Judgment:

21 December 2015

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 21 December 2015 at 4.30 pm
pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date……………………….

THORPE v BARRETT [2015] NZHC 3344 [21 December 2015]

Introduction

[1] This appeal concerns the day-to-day care of C, aged 12, and her brother, J, aged 10. They have lived in Auckland all their lives. Until February 2014 they were in the day-to-day care of their mother, Ms Thorpe, and had regular contact with their father, Mr Barrett.1 In 2013 Ms Thorpe applied to vary the existing parenting orders so that she could return to her home city in the South Island with the children.2 In early 2014, before the application had been determined, she moved to the South
Island alone, leaving the children in Mr Barrett’s full-time care. Judge Pidwell subsequently refused Ms Thorpe’s application.3 Ms Thorpe appealed.

[2] Shortly after the hearing I gave judgment allowing the appeal and indicating that I would give reasons later.4

[3] The grounds of appeal (though not in the order presented in argument) were that the Judge erred in:

(a) placing undue weight on Ms Thorpe’s reasons for moving to the South

Island;

(b) failing to take the children’s views into account;

(c) drawing conclusions that were not available on the evidence.

[4] The appeal was a general appeal to be determined in accordance with the Supreme Court’s statement of principle in Austin, Nichols & Co Inc v Stichting Lodestar.5 It was for Ms Thorpe to show that Judge Pidwell’s decision was wrong. If that was shown it was for me to reach my own conclusion, placing the weight I
consider appropriate on the first instance decision. In this regard, I note that Judge

1      The names used are anonymised.
2      I have not named the city for ease of compliance with the statutory suppression order.
3      T v B [2015] NZFC 3374.
4      NRT v RB [2015] NZHC 3053.
5      Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 confirmed in the context of Care of Children Act 2004 applications in Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [32].

Pidwell had the benefit of hearing evidence from Ms Thorpe, Mr Barrett and other witnesses.

[5] Mr Barrett appeared for himself but…

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 Thorpe v Barrett

Details

AGLC: Thorpe v Barrett [2015] NZHC 3344
Case: [2015] NZHC 3344
Decision Date: 21 December 2015

CaseChat Overview and Summary

This appeal concerns the day-to-day care of C, aged 12, and her brother, J, aged 10. They have lived in Auckland all their lives. Until February 2014 they were in the day-to-day care of their mother, Ms Thorpe, and had regular contact with their father, Mr Barrett. In early 2014, before Ms Thorpe's application to vary the existing parenting orders was determined, she moved to the South Island alone, leaving the children in Mr Barrett's full-time care. Judge Pidwell subsequently refused Ms Thorpe's application. Ms Thorpe appealed.

The grounds of appeal were that the Judge erred in: (a) placing undue weight on Ms Thorpe's reasons for moving to the South Island; (b) failing to take the children's views into account; and (c) drawing conclusions that were not available on the evidence.

The appeal was a general appeal to be determined in accordance with the Supreme Court's statement of principle in Austin, Nichols & Co Inc v Stichting Lodestar. It was for Ms Thorpe to show that Judge Pidwell's decision was wrong. If that was shown it was for the Court to reach its own conclusion, placing the weight it considered appropriate on the first instance decision.

The Court found that the Judge erred in considering the reasonableness of Ms Thorpe's move to the South Island, in failing to take the children's views into account, and in drawing conclusions not supported by the evidence. The Court concluded that the children's welfare and best interests were best served by remaining in the South Island in Ms Thorpe's care. The appeal was allowed.

The final orders were that the appeal be allowed, the decision of the Family Court dated 12 May 2015 be set aside and replaced with a decision that the children be permitted to live with their mother in the South Island.

Orders