L V T HC TAU CIV-2011-470-568

L V T HC TAU CIV-2011-470-568

A stay of execution was granted for a limited period (to permit the Court of Appeal to consider leave) because, on balance, maintaining the status quo pending imminent appellate consideration best protected the interests of the child and preserved the utility of any appeal; although the applicant's prospects were...

Source-derived case information.

Citation
openlaw-16a94beb_a6d5_4898_a0e2_57d87eda7793.pdf
Parties
Applicant: L; Respondent: T; Child: E
Court
High Court
Jurisdiction
New Zealand
Judgment Date
2 September 2011
Procedural Posture
Appeal Under Care of Children Act 2004 / High Court Stay Application Pending Leave to Appeal to the Court of Appeal
Outcome
Stay of execution granted for a limited period pending the Court of Appeal's consideration of leave; interim parenting orders put in place to restore pre-Family Court arrangements; respondent granted leave to apply to revoke the stay if delay occurs
Legal Topics
Stay of Execution, Leave to Appeal, Parenting Orders, Relocation, Best Interests of the Child
Family Law Child Welfare Appeals and Procedure Stay of Execution Leave to Appeal Parenting Orders Relocation Best Interests of the Child

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Parties

L

Applicant

T

Respondent

E

Child

Procedural Posture

Appeal Under Care of Children Act 2004 / High Court Stay Application Pending Leave to Appeal to the Court of Appeal

Legal Issues

  1. 1 Whether a stay of execution of the High Court judgment should be granted pending the Court of Appeal consideration of leave
  2. 2 Whether Potter J erred in law by failing to conduct a fresh assessment of the evidence on appeal
  3. 3 Whether the Family Court wrongly treated the matter as not a relocation case and whether the High Court should have corrected that error

Ratio Decidendi

A stay of execution was granted for a limited period (to permit the Court of Appeal to consider leave) because, on balance, maintaining the status quo pending imminent appellate consideration best protected the interests of the child and preserved the utility of any appeal; although the applicant's prospects were not strong and there had been delay in seeking a stay, the stay would not render the appeal more advantageous to the applicant, would avoid potentially nugatory outcomes, the child's lawyer supported a stay as least disruptive, and a Court of Appeal fixture was imminent, justifying a short fixed stay with interim parenting orders restoring the pre-Family Court arrangements.

Court Disposition

Stay of execution granted for a limited period pending the Court of Appeal's consideration of leave; interim parenting orders put in place to restore pre-Family Court arrangements; respondent granted leave to apply to revoke the stay if delay occurs

Orders

  • Stay granted of execution of Potter J's judgment dated 24 August 2011 until the Court of Appeal deals with the applicant's leave application (fixture scheduled 21 September 2011)
  • Interim parenting orders during the stay: E to remain in the day-to-day care of her father (L) with contact to the mother (T) on weekends and school holidays, reverting to arrangements in place immediately prior to the Family Court's final orders