ALZ v FLK HC Napier CIV-2011-441-581
[2011] NZHC 1488
•7 November 2011
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 THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
CIV-2011-441-581
BETWEEN ALZ Appellant
ANDFLK Respondent
Hearing: 28 October 2011
Counsel: R J Buchanan and A G Gray for Appellant
C M Hickman for Respondent
M C Hamilton for Children
Judgment: 7 November 2011
JUDGMENT OF BREWER J
This judgment was delivered by me on 7 November 2011 at 3:30 pm pursuant to Rule 11.5 High Court Rules.
Registrar/Deputy Registrar
SOLICITORS/COUNSEL
Buchanan Gray (Wellington) for Appellant
Willis Toomey Robinson (Napier) for Respondent
Maria Hamilton (Napier) for Children
ALZ V FLK HC NAP CIV-2011-441-581 7 November 2011
Introduction
[1] ALZ (the father) and FLK (the mother) are the parents of four children aged
12, 10, 9 and 6 years respectively. The father and the mother were married. The family lived in New Zealand. During the marriage the father accepted a post in Australia which offered him significant professional advancement. He went to Australia in March 2007 with the intention of establishing a home base to which the mother and the children could immigrate. However, the mother refused to leave New Zealand, the marriage ended in June 2007, and thereafter the relationship between the parties has been characterised by bitter acrimony and seemingly endless Family Court litigation.
[2] The mother has had the day-to-day care of the children since the father went to Australia. Much of the litigation between the parties has centred on the father’s wish to play as large a part in the lives of the children as possible. The mother has resisted that.
[3] On 14 December 2010, Judge PJ Callinicos delivered a decision in which he granted day-to-day care of the children to the mother with contact to the father. This was an interim decision. In the litigation leading to that decision the father had sought the day-to-day care of the children and the right to relocate them to Australia. He very nearly succeeded. Judge Callinicos’s decision is excoriating of the mother, but the Judge (in essence) gave her a last chance to take steps to permit the father’s relationship with the children to improve palpably. Judge Callinicos directed that he would review the position after six months, and that “if, at that review, there has not been an improvement in the father’s relationship due to alienating behaviours on [the mother’s] behalf then I will likely be making an order for the children to relocate to
the father’s day to day care”.1 That review took place in a hearing on 17 June 2011.
The father renewed his applications. The mother continued her opposition. In a decision dated 5 July 2011, Judge Callinicos continued the interim parenting order
and directed that it would be further reviewed in early February 2012.2
1 ALZ v FLK FC Napier FAM-2007-041-725, 14 December 2010 at [98].
2 ALZ v FLK FC Napier FAM-2007-041-725, 5 July 2011.
[4] The father appeals the 5 July 2011 decision. He contends that there was no credible evidence of change by the mother. Given the facts found by the Family Court Judge in his December 2010 judgment, he should have, it is submitted, ordered that the father be given day-to-day care and be permitted to relocate the children to Australia. Mr Buchanan, on the father’s behalf, submitted that the Family Court Judge was in error in his December 2010 decision in that he gave insufficient weight to the mandatory requirement of s 5(e) of the Care of Children Act 2004, which provides that the children’s safety must be protected, and that he continued that error in his July 2011 decision. The father seeks now day-to-day care and relocation orders.
[5] There are two points upon which all counsel are agreed (and with which I
concur):
(a) The appeal is against the Family Court Judge’s decision of 5 July
2011, not against his decision of 14 December 2010; and
(b)The children are not to be separated from each other. Where one resides, all will reside.
Approach on appeal
[6] At the hearing before me I granted the father leave to bring this appeal against the interim decision of Judge Callinicos.3 This is a general appeal.4 I must make my own decisions on the issues having regard to the evidence and the submissions of counsel. I can have regard to the reasoning of the Family Court Judge but I do not need to give his views any particular deference.
[7] The governing statute is the Care of Children Act 2004 (COCA). The Court’s
enquiry must be directed towards one question: what is best for the children?5
3 Care of Children Act 2004, s 143(3).
4 Ibid, s 143(4); Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [31]–[33]; Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
5 Care of Children Act 2004, s 4.
[8] I make it clear at this point that in considering this question I will put aside the conduct of the parties towards each other, except to the extent that I find that it is likely to have an ongoing effect on the children’s welfare. The children are unfortunate enough to have warring parents. Undoubtedly that has affected them adversely and will continue to affect them adversely. But that is background. The foreground is whether, at this stage, the Court should conclude that it is in the best interests of the children to live with the father in Australia or to remain in Napier with the mother. This does not mean that one or other of the parties will have contact with the children severed. The availability of conditions and processes to ensure appropriate contact with the party who will not have day-to-day care will inform the decision as to who will have day-to-day care.
[9] In determining the welfare and best interests of the children under s 4 of the COCA, the Court must take into account the desirability for resolution of matters to occur within an appropriate timeframe,6 the views of the children,7 and (where
relevant) the following principles:8
(a) the child's parents and guardians should have the primary responsibility, and should be encouraged to agree to their own arrangements, for the child's care, development, and upbringing:
(b) there should be continuity in arrangements for the child's care, development, and upbringing, and the child's relationships with his or her family, family group, whanau, hapu, or iwi, should be stable and ongoing (in particular, the child should have continuing relationships with both of his or her parents):
(c) the child's care, development, and upbringing should be facilitated by ongoing consultation and co-operation among and between the child's parents and guardians and all persons exercising the role of providing day-to-day care for, or entitled to have contact with, the child:
(d) relationships between the child and members of his or her family, family group, whanau, hapu, or iwi should be preserved and strengthened, and those members should be encouraged to participate in the child's care, development, and upbringing:
(e) the child's safety must be protected and, in particular, he or she must be protected from all forms of violence (whether by members of his
6 Ibid, s 4(5)(a).
7 Ibid, s 6.
or her family, family group, whanau, hapu, or iwi, or by other persons):
(f) the child's identity (including, without limitation, his or her culture, language, and religious denomination and practice) should be preserved and strengthened.
[10] Section 44 deals with disputes between guardians, either of whom may apply under s 44(1)(b) for the Court to make a direction as to guardianship matters. On receiving such application, the Court may make any order that it thinks proper. However, the Court must not grant any party who has used violence against a child or party to the proceedings day-to-day care for, or unsupervised contact with, that
child unless the child’s safety can be assured.9
The father’s case
[11] Mr Buchanan for the father raises the following grounds of appeal: (a) The judgment was wrong in both fact and law;
(b)There was no identifiable improvement or no sufficient identifiable improvement in the appellant’s relationship with the children to justify a continuation of the status quo;
(c) Any improvement in the relationship between the appellant and the children was not as a result of any change in the respondent’s behaviour and/or conduct;
(d) There has been a continuation of the respondent’s abusive and
alienating behaviours;
(e) The decision is inconsistent with the decision delivered by Judge Callinicos on 14 December 2010. Having regard to the welfare and best interests of the children, the Family Court ought to have made a final decision changing the children’s day-to-day care into the
appellant’s care and directing the children’s relocation to Newcastle, Australia.
[12] Mr Buchanan submits that the essential question on appeal is whether, on the basis of the available evidence and his earlier findings of fact, Judge Callinicos was justified in finding that the mother had made sufficient changes in her behaviour to warrant a decision not to make final orders, but instead to direct a further review in February 2012. The father’s case is that the mother did not put forward sufficient evidence to demonstrate that she has accepted the criticisms made against her in the first Family Court decision and the last minute actions that she has taken are a mere façade to avoid the outcome that the Judge foreshadowed in December 2010. Consequently, her “last chance” has been exhausted and day-to-day care of the children should fall to the father.
[13] The father’s appeal focuses primarily on the correctness of certain inferences drawn by Judge Callinicos and the weight the Judge gave to his various factual findings. In summary, Mr Buchanan submits that the Judge gave insufficient weight to his December 2010 findings of fact in relation to the mother’s abusive and destructive tendencies. In the July 2011 decision he accepted the mother’s self- serving evidence at face value despite evidence as to her lack of veracity. By contrast, he made adverse findings of fact against the father, including criticising the father’s opposition to delaying final resolution of the proceedings further, despite the father’s submission that he has waited long enough.
[14] I infer that underlying the father’s desire for finality is a fear that drawing out the Court process will inevitably lead to the children becoming adjusted and attached to life with their mother in New Zealand, which runs contrary to his objective of becoming the primary caregiver of his children in Australia.
The mother’s case
[15] Ms Hickman for the mother submits that the Judge’s findings and conclusion were fully supported by the evidence provided at the hearing in June 2011. The Judge undertook a careful analysis of what was in the best interests of the children.
Having had the opportunity to hear and observe witnesses in two hearings six months apart, he was in best possible position to make appropriate and justifiable findings of fact.
[16] There was a proper evidential basis to support the Judge’s finding that the mother has made improvements in her attitude and has recognised the need to foster a positive view of the father with the children. Having been so highly critical of the respondent in the first hearing, Judge Callinicos would have been particularly careful to analyse whether the changes identified were genuine and not a mere ruse. He was entitled to take notice of any changes the parties had made and to observe the improved relationship the children now have with their father.
[17] There has been an identifiable improvement in the children’s attitude towards spending time with the father and in the mother’s behaviour. Judge Callinicos noted that the position “is eminently more positive than the situation in October last [year]”.10 The father’s negative reports about the contact arrangements are inconsistent with the positive feedback arising from the children themselves as well as from the mother.
[18] Conversely, Judge Callinicos found that “the father has done nothing to proactively improve his own relationship. The task ahead is not merely one for the mother”.11 He found that the father simply made excuses for his failures to arrange Skype video communications, personally to send the children birthday cards or promptly to reply to their emails and that this supports the inference that he is more focused on having his “rights” vindicated than on what is best for his children.
Submissions of counsel for the children
[19] Ms Hamilton for the children also opposes the appeal. She submits that the orders made in the July 2011 decision are in the best interests of the children and serve their welfare. In the past year their views towards spending time with their
father (through Skype and trips to Australia in the holidays) have significantly
10 At [31].
11 At [46].
improved and this ought to be fostered further. The children have, however, expressed a consistent wish throughout to continue living with their mother.
[20] The children’s reality is that they live together with their mother in Napier, spending most of their time with her and her side of the family. They see their father in holidays, the odd weekend, and talk to him on the phone and by Skype. They attend school, are involved in sports and other activities and have their circle of friends in Napier. They have very little knowledge of their father’s world in Australia.
[21] Judge Callinicos’s decision provides continuity in care and allows for stable ongoing relationships with all family members. It allows time for the parties to show that they can consult and co-operate, enabling the Court to monitor the progress and the genuineness of their conduct. Finally, Ms Hamilton submits, and I agree, that there is no basis for challenging the Judge’s December 2010 factual findings of an absence of violence in terms of ss 60 and 61 of the COCA.
Decision
[22] The essential question in this appeal is not, as the appellant submits, whether the mother has discharged any burden imposed on her to prove that she has made material changes in her attitude and behaviour to the benefit of the father’s relationship with his children. The essential question is simply: what is in the welfare and best interests of the children?
[23] Judge Callinicos has not yet decided whether or not he should make a day-to- day care order in favour of the father. He has seen some positive changes in the mother’s attitude and he is trying to foster that for the benefit of the children. His decision directs that the position will be reviewed in full in early February. That is now three months away. In the interim, the school holidays and Christmas will occur. The children are already scheduled to spend three weeks of the holidays, including Christmas, with their father in Australia.
[24] In my view, Judge Callinicos was right to hesitate over changing the day-to- day care of the children and allowing them to relocate to Australia. They continue to view their mother as their primary care-giver and changing that at this time would cause disruption to their lives. The children’s views of their father have improved over time, which tends to suggest that the mother is making the positive changes in her behaviour that were reported by the Clinical Psychologist, Kathy Orr, and
accepted by Judge Callinicos.12 I also share the Judge’s concern that the father’s
position is “driven more by past experiences than by reference to what is currently in the welfare and best interests of his children according to the objective evidence”.13
Allowing a further period of review will give the Court a better opportunity to assess the genuineness of the parents’ behaviour in light of their previous conduct and to measure the improvements that have been made in the children’s relationship with their father.
[25] The children have been in the day-to-day care of their mother for all of their lives. They are all young. It is, in my judgment, in the best interests of the children for them to stay in the domestic situation to which they are accustomed unless there is clear detriment to them in doing so. There will be such detriment if the mother’s conduct does not improve and as a result the children are alienated from the father. I do not see that alienation occurring between now and early February, particularly with the directions for contact set out by Judge Callinicos. I do see real potential for harm if I were to make orders at this stage transferring day-to-day care to the father and permitting him to relocate the children to Australia.
[26] Accordingly, the appeal is dismissed.
[27] In his final submission to me, Mr Buchanan said that the father is strongly of the view that the few steps taken by the mother to show reform are contrived and disingenuous. His fear is that the mother will paint whatever façade is needed to depict the changes that the Court requires. As soon as she is granted permanent day- to-day care the façade will be ripped away to reveal a fortress which both confines
the children and excludes the father. I fear he might be right. It might be that this is
12 At [33].
13 At [39].
a case which the Family Court will have to keep under regular review for some time yet. In my view, despite the general desirability of achieving certainty in cases involving the care of children, Judge Callinicos has taken the correct approach in holding the door open to a change of day-to-day care and relocation to Australia to prevent the father’s fears from being realised.
Costs
[28] The father is not legally aided. The mother is. Judge Callinicos certified for
$66,300 in favour of the father. In accordance with the outcome of this appeal I would normally award costs to the mother on a 2B basis. However, in the circumstances I exercise my discretion not to award costs. The Legal Services Agency should take this into account in deciding any application by the father
pursuant to s 46 of the Legal Services Act 2011.
Brewer J
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