CH v SM [2015] NZHC 1599

CH v SM [2015] NZHC 1599

The Family Court Judge either acted ultra vires by purporting to 'interpret' an existing order or, if viewed as varying the order, did so in a procedurally irregular manner by determining a disputed term after a settlement conference without directing a hearing or directions conference under r 416Y and without giving reasons; this breached natural justice and caused prejudice, so the appeal is allowed and the matter is remitted to the Family Court for rehearing in accordance with the Act and Rules.

Citation
[2015] NZHC 1599
Parties
Appellant: CH; Respondent: SM
Court
High Court
Jurisdiction
New Zealand
Judgment Date
7 July 2015
Procedural Posture
Appeal Under Care of Children Act 2004 / Hearing in High Court; Appeal Allowed and Remitted to Family Court
Outcome
Appeal allowed; matter remitted to Family Court for rehearing in accordance with Care of Children Act and Family Court Rules
Legal Topics
Parenting Orders, Jurisdiction, Settlement Conference, Natural Justice, Variation of Court Orders, Reasons for Decision, Family Court Rules, Lawyer for the Child
Family Law Administrative Law Child Welfare Civil Procedure Parenting Orders Jurisdiction Settlement Conference Natural Justice +4 more

Case Brief

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Parties

CH

Appellant

SM

Respondent

Procedural Posture

Appeal Under Care of Children Act 2004 / Hearing in High Court; Appeal Allowed and Remitted to Family Court

Legal Issues

  1. 1 Whether the Family Court Judge exceeded jurisdiction by interpreting or varying an existing parenting order without proper application or consent
  2. 2 Whether the Judge acted outside the settlement conference procedures in r 416Y of the Family Court Rules by deciding the dispute without directing a hearing or directions conference
  3. 3 Whether procedural fairness was breached by deciding the disputed matter without giving parties an opportunity to be heard and without providing reasons

Ratio Decidendi

The Family Court Judge either acted ultra vires by purporting to 'interpret' an existing order or, if viewed as varying the order, did so in a procedurally irregular manner by determining a disputed term after a settlement conference without directing a hearing or directions conference under r 416Y and without giving reasons; this breached natural justice and caused prejudice, so the appeal is allowed and the matter is remitted to the Family Court for rehearing in accordance with the Act and Rules.

Court Disposition

Appeal allowed; matter remitted to Family Court for rehearing in accordance with Care of Children Act and Family Court Rules

Orders

  • Appeal allowed and matter remitted to the Family Court for rehearing in accordance with the Care of Children Act 2004 and Family Court Rules 2002
  • Where there is a discrepancy between the parenting order and an attached calendar, the time specified in the body of the sealed parenting order prevails