CAM v SRM [2012] NZHC 3519 (18 December 2012)

Last Updated: 8 January 2013

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 HTTP://WWW.JUSTICE.GOVT.NZ/COURTS/FAMILY- COURT/LEGISLATION/RESTRICTIONS-ON-PUBLICATIONS.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-6771 [2012] NZHC 3519

UNDER the Care of Children Act 2004

IN THE MATTER OF a without notice application for a stay of proceedings pending an appeal against a decision of Judge Druce delivered on 16

August 2012 at the Family Court at North

Shore

BETWEEN CAM Applicant

AND SRM Respondent

Hearing: 18 December 2012

Counsel: N Schumacher for Applicant

Respondent in person

AE Ashmore for Children

Judgment: 18 December 2012

_{JUDGMENT OF BREWER J}

This judgment was delivered by me on 18 December 2012 at 4:30 pm pursuant to Rule 11.5 High Court Rules.

_{Registrar/Deputy Registrar}

CAM V SRM HC AK CIV-2012-404-6771 [18 December 2012]

Introduction

[1] This is an application for an order for a stay of an interim parenting order made by Judge TH Druce in the Family Court at North Shore on 16 August 2012.1

The applicant has filed an appeal against the interim parenting order and has also taken action against it by way of judicial review proceedings. The appeal is due to be heard in this Court on 8 May 2013.

Background

[2] The applicant is the mother of three boys, B (aged 13), D (aged 11) and L (aged 10). The respondent is their grandfather and the father of the applicant.

[3] I do not need to go into the factual background. Suffice to say that the relationship between the applicant and the respondent is marked by conflict or disagreement, particularly in regard to the respondent having contact with the children. The Family Court Judge canvassed the background in detail in his

judgment before making the following order:2

An interim parenting contact order is made granting the children contact with their grandfather for one day on alternative weekends between 9 am and 5 pm on the following terms:

(a) The grandfather is to be responsible for all transporting of the

children to and from the mother’s home.

(b) When uplifting or returning the children, he is to remain at the roadside outside the mother’s home and the mother is to be responsible for getting the children out to the car and bringing them in from the car.

(c) The Applicant grandfather is not to consume alcohol at any time during the contact period or over the 12 hour period prior to contact.

(d) The contact day is to be on a Sunday if the parties are unable to agree on which day of the weekend is most convenient.

1. The application was made originally on a without notice basis but, on 14 November 2012, Woolford J directed that the respondent be served.

2 SRM v CAM FC North Shore FAM-2010-044-2520, 16 August 2012, at [33].

(e) The contact is to be on the weekend that does not conflict with L’s

alternate weekend contact with his father.

(f) The first day of contact is to occur not later than 2 September 2012.

Submissions

[4] In her affidavit filed in support of her application for stay, the applicant deposes:3

18. I am concerned about my children’s safety, welfare and best interests in light of the respondent’s lack of supervision in the past and alcohol consumption. I am also worried about my brother driving my children given he has acknowledged under cross-examination that he smokes marijuana regularly. Accordingly, I am seeking that the Interim Parenting Order made by the Family Court is set aside and that relief is granted as sought in my Notice of Appeal.

19. I do not think it is in the children’s welfare and best interests to be having unsupervised contact with the respondent. I feel there is a risk to the personal safety of the children and therefore seek that the Interim Parenting order has an immediate stay of proceedings while this appeal is addressed by the Court.

[5] Counsel for the applicant, in her written submissions filed in the Court on

11 December 2012, makes two major points:

(a) The interim parenting order was made despite non-compliance with rule 36 of the Family Court Rules 2002, namely that the fathers of two of the children were not served with the respondent’s application; and

(b) The applicant has crossed the threshold of making a case that it is in the children’s welfare and best interests to enter the stay because the safety of the children is potentially at risk.

[6] The respondent appeared in person, having filed a synopsis of submissions and having submitted an affidavit sworn on 14 December 2012 containing what he

_{characterised as new evidence.}

3 Affidavit of CAM in support of: application seeking leave to file notice of appeal out of time, notice of appeal, without notice application for a stay of proceedings and interlocutory application for judicial review, dated 8 November 2012.

[7] I record that Ms Schumacher for the applicant objected to the Court receiving the “new evidence”. I said that I had read it and would give it what weight I thought reasonable in the light of my jurisdiction in this matter. I said that I did not need to hear evidence from the applicant in rebuttal but would receive the applicant’s position from counsel, and if I thought any divergence between the respondent’s position and the applicant’s position was so great that I needed to make a credibility finding, I would indicate the need for oral evidence. I did not find any divergence warranting that.

[8] The respondent simply opposes the application on the same basis that he sought the parenting order. That is to say, neither he nor the environment he provides put the children at any risk, the children desire the contact, and the applicant’s continuing opposition to the contact is rooted in her personal conflict with the respondent.

[9] Mr Ashmore appeared as the lawyer for the children. I found his submissions to be particularly useful. He confirms that the children wish the contact to continue. It has been occurring now for approximately three months. The unusual nature of this case is that if the stay is granted, it would have the effect of altering the status

quo rather than preserving it. Mr Ashmore’s submissions conclude:4

25. Suspending the contact runs a risk of uncertainty for my clients.

Having had a break of contact with their grandfather, then a reintroduction, and then being a possible suspension with a possible

reintroduction again in May.

26. The last issue is the views of my clients. It is submitted though these are obviously not binding they are relevant in terms of s 6 of the Care of Children Act.

Discussion

[10] Rule 20.10(2) of the High Court Rules permits the Court to order a stay of proceedings in relation to a decision appealed against.

4 Memorandum of submissions of lawyer for children, dated 17 December 2012.

[11] The basic question, usually, is whether appeal rights would be rendered nugatory if a stay were not entered.5 The balance sought to be struck by the Court in examining the positions of the parties to an application for a stay has to be made in the context of the rights at issue. In cases involving families and the Care of Children Act 2004, the issues to be considered can be taken as set out by Priestley J in Crosby v Crosby,6 as ratified by the Court of Appeal in WAH v WTW.7 The principles are:

(a) The overriding consideration is the welfare of the children;

(b) Whether or not the appeal will be rendered nugatory if a stay is refused will be a highly relevant consideration;

(c) The arguments in favour of a stay will be stronger if a decision under appeal has the effect of totally changing the status quo;

(d) The Court will have regard to any evidence of lack of bona fides in the filing of an appeal and the application for stay as a consequence;

(e) Each case will turn on its facts. The length of time before the appeal is likely to be heard, the current circumstances of the parties and the children, and the consequences of delay pending the hearing of the appeal will be relevant.

[12] I accept Mr Ashmore’s submission that in addition the views of the children concerned can have relevance. In this case, given the ages of the children and the three months of contact they have had with the respondent because of the order of the Family Court, I consider their views to have real relevance.

[13] I start by considering the welfare of the children. It is clear that the Family

Court Judge took into account the concerns of the applicant as to the welfare and safety of the children in reaching his decision. It is not for me to decide the merits of

5 _{Philip Morris (NZ) Ltd v Liggett & Myers Tobacco Co (NZ) Ltd [1977] 2 NZLR 41 (CA).}

6 _{Crosby v Crosby HC Auckland AP124-SW01, 21 December 2001.}

7 WAH v WTW [2010] NZCA 344.

the appeal but to consider whether there are, in the background to the case, matters which should be of real concern to an appellate Court. On the facts of this case, I do not see any factor which would cause me to doubt the approach taken by the Family Court Judge. The concerns raised by the applicant relate to the respondent’s consumption of alcohol and an uncle’s admitted recreational use of cannabis. There is no indication that the assurances given by the respondent, and the conditions imposed by the Family Court Judge, have failed to adequately address those concerns. The concern about a previous incident of failure to supervise has to be seen in the context of the passage of some five years since the incident. On the other hand, I have no reason to question the basis of the Family Court Judge’s views on the desirability of permitting the children contact with their grandfather.

[14] It is clear that the appeal will not be rendered nugatory if a stay is refused. The relief sought in the appeal is the cancellation of the interim parenting order. The effect of refusing a stay will be to allow contact to continue as it has for the past three months. The applicant considers that this contact is unsafe, but that is a matter to be given relevance under the overarching concern of the welfare of the children.

[15] As Mr Ashmore submits, an unusual feature of this case is that the granting of a stay would change the status quo. Contact has been in place for three months. A stay would cause the contact to cease. If the appeal is unsuccessful, the contact would resume. There is obvious dislocation and confusion for the children if such a stop/start process occurs. If the contact continues and the appeal is allowed, the consequent cessation of contact would have a one-off effect.

[16] I do not see any evidence of lack of bona fides in the filing of the appeal and the application for the stay. The applicant has firm and genuine views about the merits of the parenting order. The appeal is not without merit, particularly on the procedural issue. However, as I have said, on the critical issue of the welfare of the children there is no apparent error by the Family Court Judge.

[17] The appeal is scheduled to be heard in approximately five months. That is

quite a long time. It is certainly long enough for the applicant’s concerns about

safety to have a greater force than would be the case if the appeal was to be heard in the next month or two.

[18] The children, as I have said, are in favour of the contact continuing. They are of an age where their views should have some weight. Further, for them this is not a hypothetical situation. They have had contact with the respondent for the past three months.

[19] I do not consider that the “new evidence” filed by the respondent nor the response to it conveyed by Ms Schumacher have any particular relevance to my decision. These matters simply demonstrate the ongoing personal conflict between the parties.

Decision

[20] In my view, grounds have not been made out by the applicant for the granting of the stay.

[21] There is an extant and apparently sound judgment of the Family Court dealing with the safety and welfare issues which underlie the appeal. The additional procedural issues do not, in my view, go to the safety and welfare of the children during contact with the respondent. It is obvious that the children have been, and will be, influenced by the hostile relationship between the applicant and the respondent. But the point is that the interim parenting order has been in place for the past three months. The safety and welfare concerns have not been compounded by this contact and the children wish it to continue. It would be disruptive, and serve no objectively assessable purpose, to change the status quo.

_{[22] The application for an order granting a stay is denied.}

_{Brewer J}

Solicitors:

Galvin Law Ltd (Auckland) for Applicant Alex Ashmore (Auckland) for Children (Copy to Respondent in person)