D R M V THE FAMILY COURT AND ORS HC CHCH CIV 2010-409-002815

D R M V THE FAMILY COURT AND ORS HC CHCH CIV 2010-409-002815 10 December 2010NOTE: 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 IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY CIV 2010-409-002815BETWEEN D R M Applicant AND THE FAMILY COURT First Respondent AND THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT Second Respondent AND C S M Third Respondent Hearing: 10 December 2010 Counsel: T Sisson for Applicant N R Rout for Third Respondent Judgment: 10 December 2010JUDGMENT OF FOGARTY J[1] I have before me a without notice application for stay of execution of a decision made by Her Honour Judge Moran in the Family Court on 3 December ordering that the two children of the applicant mother and the third respondent father be placed under guardianship. [2] The purpose of the appeal is effectively to stay the implementation of Clauses 2(c), (d) and (e) of the order of 3 December which provided for the return of thechildren to Christchurch. The children had been removed to Auckland by the mother. [3] The oral application for stay pending appeal was refused by the Family Court on 3 December. Judge Moran at a judicial conference on 9 December, that is, yesterday, expressed concern at alienation of the children from the father. Although the application before me is not clear I draw the inference that Judge Moran saw no reason to change her order as to revisiting material yesterday. [4] I have heard oral argument on a Pickwick basis from Ms Sisson on behalf of the applicant and from Mr Rout on behalf of the third respondent, the father. I refer particularly to the test that I apply as an appeal Judge. I have decided to select the most favourable test to the applicant and, that is, by following Austin, Nichols & Co Inc v Stichting Lodestar [2008] 2 NZLR 141 (SC). I will need on the one hand to be satisfied that Judge Moran was wrong in her decision refusing stay and, second, that I am obliged to reach my own view upon it. I was cited some authority from Mr Rout to the effect that where an instance Judge has refused stay there is no basis for an appeal Judge to grant stay. I have not had a chance to consider those authorities. I suspect they are out of date in the light of Lodestar and as an exercise of caution I do not follow them. [5] That all being in the case though, I remind myself that ultimately I have to be satisfied that the Judge in the Court below was wrong. Not only is Judge Moran a specialist in this area she is very familiar with the sorry history of litigation between the husband and wife over the children. It is clear from the narrative of events that I heard from counsel that Judge Moran has had some years of engagement with the issues posed in this family. This is a not untypical case where, due to a variety of measures, at least one of the two children has not had any contact with her father, except for a few hours, in the presence of the Court appointed supervisor for getting on for three years, and, for the other child, the same time, no contact, not even supervised contact. [6] The decision of Judge Moran on 3 December to place the children under the guardianship of the Family Court arose because the mother had taken the children toAuckland. The Judge recorded that the mother had no right to leave Christchurch with the children without their father's consent. The mother took that step in the face of Court proceedings, an imminent fixture. Judge Moran also went on to find that having been made aware that the order was made the mother has certainly not taken any steps to return to Christchurch, far from it. An order was subsequently made for the children's return. [7] I am not going to go into the details of the particular orders given by the Court to the Chief Executive as agent of the Court. There is no doubt that Judge Moran on 3 and 9 December was of the clear view that the children should be returned to Christchurch. [8] The appeal for a stay is on the basis that the appeal against the guardianship order, which in turn is designed to bring the children back from Auckland, would be nugatory. There is ample authority for two propositions: firstly, that an argument that an appeal is rendered nugatory is always a very powerful argument in support of a stay. The second is that an argument that an appeal is nugatory is not necessarily a power to a stay. [9] I think the context of this case is important. The context is that the guardianship order was made by the Family Court in order to bring the children back from Auckland, where they should not have gone in the first place. In very broad terms, the Court took the view that the removal of the children to Auckland was intended to frustrate the legal process, which has been going on for some years, designed to examine whether or not these children should have contact with their father. [10] There is no doubt at all that the Judge was entitled to take the view that she needed to take the step of a guardianship order. [11] Mr Rout has explained to me that that does not necessarily mean that the children will be removed from their mother. For example, if the children do come back from Auckland and their mother comes back as well, Mr Rout could see no reason why the children would not remain under the care of the mother in themeantime. The whole purpose of the orders made by Judge Moran is to bring the children back from Auckland to Christchurch. [12] In the hearing today Ms Sisson argued that there were reasons associated with the recent earthquake in Christchurch which were partly an explanation as to why the mother and children had gone to Auckland, where they are apparently staying with a friend. She also said that her client had no means of coming back to Christchurch so there is a real issue if the children are brought back to Christchurch that the mother will be stranded in Auckland. That is a possibility, though Ms Sisson also properly recognised that it was within the powers of the welfare agencies of the New Zealand Government to bring the mother back to Christchurch and that is likely to be in the welfare of the children, as Mr Rout's submissions confirm. [13] I am left with the very clear view that Judge Moran has been acting reasonably and out of concern for the welfare of the children and that concern has dominated the reasons for the making of these orders. I am far from satisfied that she is wrong. I appreciate that she has taken some significant steps to obtain control of the location of the children, but against the background of the litigation that now seems to be explicable. [14] I see no reason not to accept her findings of fact in her judgment of 3 December and so the argument ultimately of the appellant has to rest on the proposition that refusal to grant the stay would render the appeal nugatory. [15] In my view such a refusal would do more than render the appeal nugatory. It would enable the order made on 3 December to be flouted. It needs to be kept in mind that that order was made in response to what the Judge found was conduct flouting the processes of the Court, including the imminent fixture, and the obtaining of expert reports etc that were in process. There comes a point in which Courts do enforce their orders and essentially the guardianship order was in this context an enforcement of the processes of the Family Court.[16] For these reasons I am of the view that the order was correctly made by Judge Moran and therefore I am not moved to grant a stay. This application is dismissed.Solicitors: Edgeware Law Centre, Christchurch, for Applicant (Counsel: T Sisson) Barker & Associates, Christchurch, for Third Respondent (Counsel: N R Rout)