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High Court decision Silver v Strang [2017]

HIGH COURT OF NEW ZEALAND TE KŌTI MATUA O AOTEAROA PRESS RELEASE

16 May 2017

Silver v Strang

[2017] NZHC 942

This summary is provided to assist in the understanding of the Court’s judgment. It does not comprise part of the reasons for that judgment. The full judgment with reasons is the only authoritative document. The full text of the judgment and reasons can be found at www.courtsofnz.govt.nz

Result

A mother and father have been embroiled in disputes through the Family Court since the birth of their child in 2009. In a judgment released today, the High Court dismissed the father’s appeal against various decisions and orders made by Judge Harrison in the Family Court and upheld that Court’s process to date.

Background

The father and mother had a child in 2009. The mother currently lives in Christchurch, the father in another city. The child spends the majority of her time with the mother. Whatever the particular form of the relationship between the parents, there had been a fundamental disconnect in the expectations of both parents as to the involvement of the father in the raising of the child, resulting in a lengthy and ongoing series of Family Court proceedings. The father is from the United Kingdom, the child therefore has heritage and family there. The ability of the child to travel to the UK with her father, and the terms of that travel, had been a continuing problem between the parents.

High Court Decision

After hearing from the mother and father, and considering all the evidence from the Family Court file, Justice Nation found that the decisions and orders of Judge Harrison were properly made. Overall, the Judge observed that there had been a general failing by the parents to cooperate, move on from past issues and act in the general best interests of the child. That was particularly the case with the father.

The father’s first ground of appeal related to correction of the Court record to reflect what he considered had been inaccuracies in the description of his relationship with the mother.

Overall, Judge Harrison considered that these perceived grievances, which the father had gone to some lengths to pursue, were simply not relevant to the questions of care for the child which now concerned the Court. Justice Nation agreed, finding that there was no error made, and that the father’s contention was a misplaced grievance about a minor matter that was irrelevant to the real questions at hand.

The father also took issue with the way Judge Harrison had approached the question of the child’s future care arrangements in the event the father was to return to Christchurch. The Judge had deferred making a decision on the father’s application because, at that stage, the plans were hypothetical. The Judge considered she simply did not have enough evidence about what the situation would be, were that state of affairs to come about, to decide what would be in the best interests of the child. Justice Nation found that the father’s attitude, that equal care arrangements should be put in place prior to any decision he made about moving to Christchurch, was unreasonable. The father said the orders were necessary because of the way the mother had obstructed his contact with the child. Justice Nation said the evidence did not bear this out. The mother at times took the initiative in trying to arrange contact. The father had fixed ideas about how he should be involved. On a number of occasions, when he did not get his way, the father did not take advantage of the opportunities that still existed for contact. Often communication between the parents over contact broke down because of the way, particularly with the father, these communications were accompanied by disparaging remarks about the other parent and complaints over past grievances.

The father’s final ground of contention was with the way Judge Harrison had dealt with arrangements for travel to the UK. The Judge had provided for an annual trip of 28 days on the condition that two weeks of such were during school holidays, or 42 days if taken over the New Zealand Christmas break. The Family Court rejected the father’s suggestion that the extent to which the child could be taken to the UK should increase proportionally with her age. Judge Harrison, referring to submissions from counsel for the child, did not consider that suggestion to be in the child’s best interests. The Judge however felt that it was clearly in the child’s best interests that she should have the opportunity to travel, but to the extent it did not unduly interfere with her schooling and established social life in New Zealand. Justice Nation held that Judge Harrison was correct not to require the travel arrangements to synchronize with the plans of the father’s much older Secondary School-aged children. Overall, Justice Nation considered that the orders were properly and realistically made, having regard to all the evidence and, first and foremost, what was in the best interests of the child. Justice Nation nevertheless observed that whether or not the child would benefit from the orders made would ultimately depend on the parents being able to communicate positively over arrangements for their child, in looking forward rather than back at past grievances.

The High Court accordingly dismissed all aspects of the father’s appeal.


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