Turner v Turner - [2023] NZHC 1553

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-281

[2023] NZHC 1553

UNDER the Care of Children Act 2004

IN THE MATTER OF

of an appeal against the decision of Judge D A Burns in the Family Court at Auckland dated 19 December 2022.

BETWEEN

Turner Appellant

AND

Turner Respondent

Hearing: 7 June 2023

Appearances:

R Rao for Appellant

B Snedden for Respondent M Headifen for Children

Judgment:

21 June 2023

JUDGMENT OF ANDERSON J

This judgment was delivered by me on 21 June 2023 at 3.00 pm pursuant to r 11.5 of the High Court Rules 2016.

……………………………… Registrar/Deputy Registrar

Solicitors:
Inter Lynch, Manukau Thomas and Co, Auckland

Turner v Turner [2023] NZHC 1553 [21 June 2023]

Introduction

[1] In this judgment the names of the parties, children and schools are anonymised.1

[2] The appellant, Mr Turner, and the respondent, Ms Turner, are the parents of George (13 years old), Sophie (11 years old) and Anna (six years old). Mr and Ms Turner separated in November 2018. They have been unable to agree on the schooling of the children.

[3] On 19 December 2022, Judge D A Burns in the Family Court at Auckland made directions under s 46R of the Care of Children Act 2004 (COCA) on Ms Turner’s application as to the schools George and Sophie would attend in 2023 onwards.2 At that time, George was in his final year at Intermediate School A and Sophie in her final year at Primary School A.

[4] Mr Turner argued before Judge Burns that George should attend an independent school, Secondary School B, in 2023 and beyond. He contended that Sophie should attend Primary School B (a Year 1-8 school in his local zone) then follow George to Secondary School B from Year 9. Mr Turner said he would pay for the costs of this independent school. Judge Burns instead directed that George would attend Secondary School A and Sophie would attend Intermediate School A as sought by Ms Turner in her application, being the schools in Ms Turner’s local school zone.

[5] Mr Turner appeals Judge Burns’ decision. By consent, the parties agree that the issue of whether the necessary leave to appeal should be granted and the appeal itself are to be determined in the same hearing.

[6] In his oral submissions, Mr Rao for Mr Turner amended the relief sought in the event I decided to set aside the Family Court Decision. An order is sought remitting the matter back to the Family Court for a new hearing. Mr Rao submitted that the fresh hearing would or should include cross-examination of the parties.

1 Care of Children Act 2004 [COCA], s 139; Family…

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 Turner v Turner

Details

AGLC: Turner v Turner [2023] NZHC 1553
Case: [2023] NZHC 1553
Decision Date: 21 June 2023

CaseChat Overview and Summary

This appeal concerns the schooling of two children, George and Sophie, following the separation of their parents, Mr and Ms Turner. The primary issue is whether the Family Court judge correctly decided that George and Sophie should attend schools in their mother’s local zone rather than the independent schools proposed by their father. The appeal was heard on 7 June 2023 and this judgment was delivered on 21 June 2023.

The appeal was brought under s 143 of the Care of Children Act 2004. The issues were whether leave to appeal should be granted, whether there was a breach of natural justice, and whether the Family Court judge was in error in deciding the appeal on its merits.

The Court granted leave to appeal. The Court found no breach of natural justice despite the Family Court judge declining an adjournment application on the day of the hearing. The Court found that the judge was in error in characterising the father’s proposal as a “backdoor application for a change of the children’s residence”. The Court also found the judge had erred in failing to give appropriate weight to the children’s views.

On the merits, the Court considered the risks that the father would not be able to afford the fees of the proposed independent schools, and the impact of the children changing schools on the mother’s employment. The Court also considered the children’s views and experiences of their current schools, and the benefits of stability and continuity in their lives.

The Court concluded that the children should remain at their present schools. The appeal was dismissed.

The Court ordered that costs ordinarily follow the event but gave the parties an opportunity to provide memoranda on costs if they could not agree.

Orders