RP v JR HC New Plymouth CIV 2011-443-486 [2011] NZHC 1929 (30 November 2011)

Last Updated: 3 February 2012

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 WWW.JUSTICE.GOVT.NZ/FAMILY/LEGISLATION/RESTRICTIONS.

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

_{CIV 2011-443-486}

UNDER the Care of Children Act 2004

BETWEEN RP Appellant

AND JR

First Respondent

AND JDR AND KSR Second Respondents

Hearing: 30 November 2011

Counsel: A R H Laurenson and A Dennett for Appellant

R M Webb for First Respondent

Mr and Mrs R, in person, Second Respondents

M D Cochrane for Child

Judgment: 30 November 2011

_{(ORAL) JUDGMENT OF HEATH J}

Solicitors:

Govett Quilliam, Private Bag 2013, New Plymouth

Mooney & Webb, PO Box 999, New Plymouth

Billings, PO Box 243, New Plymouth

Copy to:

_{Mr and Mrs R, Second Respondents}

RP V JR HC NWP CIV 2011-443-486 30 November 2011

Introduction

[1] Mr P appeals against a judgment of the Family Court at New Plymouth, by which, as part of a day-to-day care order, he was required to return from Northland, with his six year old son, C, to live in Taranaki.

The Family Court proceedings

[2] There were two applications before the Family Court. The first sought a variation to parenting orders in relation to contact to be exercised by Ms R, C’s mother, and her parents. Ms R and her parents both reside in Taranaki. The second was an application, under s 44 of the Care of Children Act 2004 (the Act), to direct that C live in Taranaki with his father and his father’s family.

[3] The history to the applications was that Mr P relocated unilaterally to Northland from Taranaki in August 2009. Up to that stage, contact arrangements had been exercised while all parties were resident in Taranaki.

[4] After hearing evidence over two days, Judge Courtney made an order that C should be returned to Taranaki. Day-to-day care was to remain with Mr P. That order effectively required Mr P, his wife, his step-daughter and their child to move from Northland to Taranaki, if the order were to be complied with.

[5] In the absence of a day-to-day care application by Ms R or her parents, there was no basis on which the Judge could have ordered C to return to Taranaki, other than in the care of his father.

[6] It is apparent from what I have already said that the focus of the hearing in the Family Court was on the place at which Mr P should reside while having day-to- day care of C.

The appeal hearing

[7] A significant factor that weighed in favour of the order made by the Judge was his finding that Mr P had the means to return to Taranaki, notwithstanding his evidence that, economically, he may not be able to do so. On appeal, further evidence has been filed relating to the means of P’s family living in Northland. It demonstrates, on its face, a negative equity of something in the order of $23,000.

[8] Having been taken to that evidence, I inquired of Mr Laurenson, for Mr P, the position that his client took on compliance with Judge Courtney’s order in the event that the appeal might be dismissed. Mr Laurenson took instructions and informed me that Mr P’s position was that he and his family could not afford to relocate to Taranaki but in order to comply with the Court order he would return C as contemplated. That would mean that C could no longer be in Mr P’s day-to-day care.

[9] Those instructions changed the landscape of the appeal hearing. It was no longer a question of whether C’s welfare and best interests required him to live with his father in Taranaki or in Northland, but, rather, in whose day-to-day care C should be and what contact arrangements ought to be in place to ensure proper development of C’s relationship with the parent who did not have day-to-day care.

[10] I provided an opportunity for Ms Webb, for Ms R, to take instructions on whether her client intended to make an application for day-to-day care. Having done so, Ms Webb informed me that an application would be made. Mr and Mrs R, the maternal grandparents who were made parties to this proceeding in the Family Court, support their daughter’s application and do not propose to make one of their own.

[11] In those circumstances, it is unnecessary for me to determine the various issues raised on appeal. I record that the first was whether it was appropriate for the Judge to make an order having not had appropriate evidence as to the wishes of C, in terms of s 6 of the Act. The second was that the order made was contrary to the welfare and best interest of C, on the evidence heard by the Family Court.

[12] The issue is now different. It is whether the welfare and best interests of C require him to be in the day-to-day care of his mother in Taranaki or the day-to-day care of his father in Northland. A no less important issue is the extent and nature of contact to be enjoyed between C and the parent who does not have day-to-day care.

[13] All of those issues need to be resolved in the Family Court. To enable that to occur, it will be necessary for the appeal to be allowed, notwithstanding the absence of any findings on the merits of the appeal points raised.

[14] Inquiries with the Registrar of the Family Court reveal that one half day can be made available promptly for an interim parenting application to be heard at

10.30am on 5 December 2011. Ms Webb informs me that an application for interim orders will be made by Ms R. That will be filed and served by 5pm tomorrow.

[15] In relation to any issues of contact between now and the time at which any substantive parenting application is resolved, it will be necessary for both Ms Webb and Mr Laurenson to spell out, in documents to be filed for the benefit of the Family Court Judge, the contact arrangements each propose in some detail.

[16] It is intended that the additional evidence tendered for the purpose of the appeal, including the report prepared by Mr Cochrane, as Lawyer for the Child, following his visit to Northland on 23 November 2011, be available to the Family Court Judge at next Monday’s hearing. There will be no opportunity for oral evidence that day. Therefore, counsel will need to prepare on the basis of making submissions on the record, including material filed for this appeal, before the Family Court.

Contact issues

[17] Ms Webb raised with me whether contact should take place, as contemplated, over the coming weekend.

[18] I am conscious that it will be necessary for C to be in New Plymouth in case the Judge wishes to see him to ascertain any relevant wishes. However, I am not

prepared to make any directions as to contact, given the need for all of the parties to focus on preparation for next Monday’s hearing. But, all of them will appreciate the need to demonstrate co-operation, in that regard, before that hearing takes place.

Result

[19] For those reasons, the appeal is allowed. The order requiring C to live in

Taranaki with his father is vacated. The orders that existed prior to the judgment of

25 August 2011 remain in force pending the outcome of the hearing on 5 December

2011.

[20] The proceeding is remitted to the Family Court to deal with outstanding issues at the hearing scheduled for 10.30am on 5 December 2011.

[21] The parties are legally aided. I make no order as to costs.

[22] I direct that Mr Cochrane’s fees and disbursements, as Lawyer for the Child, be paid out of moneys appropriated by Parliament for the purpose. I express my appreciation to Mr Cochrane for the work he has undertaken and the information he has provided to the Court. As it turns out, that is likely to be most helpful to the

_{Family Court Judge.}

P R Heath J