Wade v Wade - [2022] NZHC 3254

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.

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CIV-2022-454-056

[2022] NZHC 3254

UNDER the Care of Children Act 2004

BETWEEN

DONNA WADE

Appellant

AND

BRIAN WADE

Respondent

Hearing: 3 October 2022

Counsel:

J C LaHatte and J C R Cooper for the Appellant T L Wheelan for the Respondent

Judgment:

6 December 2022

JUDGMENT OF COOKE J

[1] The appellant appeals against the decision of the Family Court dated 15 June 2022 pursuant to which the Court varied certain final parenting orders made under the Care of Children Act 2004 (COCA).1 In that decision Judge Moss varied the order she had earlier made by judgment dated 23 August 2021.2 The relevant background was outlined in the 15 June judgment in the following way:3
In this long running matter, the children … have come to be settled in a regime for care in their father’s care, after three years of ceaseless and difficult litigation.

1      Wade v Wade [2022] NZFC 5482. These are not the parties’ real names.
2      Wade v Wade [2021] NZFC 7843.
3      Wade v Wade, above n 1, at [1]–[3].

WADE v WADE [2022] NZHC 3254 [6 December 2022]

When a parenting order was submitted in two options proposed by counsel to be sealed as a final order in August 2021, the parents agreed to the provision at sub para X of the general conditions. This reads:4

The parties agree that any guardianship issues not covered by these orders will be resolved between the parties via OFW. If agreement cannot be reached via OFW then, the parties agree to take the matter to a family law arbitrator on the basis they shall be bound by the arbitrator’s decision. The costs of arbitration shall met by the party who is unsuccessful.

In the succeeding months, the mother has sought to invoke the arbitration provision, and has become confounded by the reasonable demands of the Family Dispute Resolutions Centre, which suggests that the order does not provide an appropriate procedure nor authority for the appointment of an arbitrator. The mother sought refinement of [the] order as a correction, by application of the slip rule.5

[2] The Judge concluded that the care of children disputes between the parties were not appropriately determined by arbitration in accordance with s 10 of the Arbitration Act 1996, and that para X was contrary to public policy.6

[3] The Judge accordingly amended the order by excluding the two sentences contemplating reference to binding arbitration. The appellant appeals against that decision.

The issues raised on appeal

[4] The appeal came before me for hearing on 3 October 2022. Whilst the written submissions of the appellant contained general criticisms of the Family Court decision, the primary ground of appeal was that the 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 Wade v Wade

Details

AGLC: Wade v Wade [2022] NZHC 3254
Case: [2022] NZHC 3254
Decision Date: 6 December 2022

CaseChat Overview and Summary

The appeal in Wade v Wade concerns the decision of the Family Court to vary final parenting orders made under the Care of Children Act 2004 (COCA). The appellant, Donna Wade, challenged the Family Court's decision to exclude terms that allowed for binding arbitration in resolving future disputes over the care of their children. The appellant argued that the Family Court did not have the jurisdiction to amend the final parenting order, and that the arbitration clause was in the children's best interests. The primary issue was whether the Family Court had the authority to exclude the arbitration clause from the final parenting order, and whether such a clause was permissible under the COCA regime.

The Court considered whether the Care of Children Act 2004 established a mandatory regime for resolving disputes over the care of children, and whether such disputes could be submitted to binding arbitration. The Court concluded that the COCA created a comprehensive regime for resolving care of children disputes, and that there was no provision in the Act for arbitral awards to be registered or enforced by the Family Court. The Court further found that the COCA regime did not permit parties to submit their disputes to arbitration in a manner that was binding and enforceable by the courts. The Court agreed with the Family Court's decision to exclude the arbitration clause from the final parenting order, as it was inconsistent with the COCA and unenforceable.

The Court dismissed the appeal and declared that the Family Court's orders correctly excluded the invalid parts of the earlier order. The Court noted that while the original form of the order was invalid, it was initially agreed to by both parties, and as such, the parties partly contributed to the issue. The Court suggested that costs should lie where they fall, as it may have been necessary for the parties to come to the High Court for the matter to be formally resolved.

Orders