ARG v BKL
[2019] NZHC 1514
•1 July 2019
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CIV 2019-419-0058
[2019] NZHC 1514
BETWEEN ARG
Appellant
AND
BKL
Respondent
Hearing: 26 June 2019 Appearances:
J I Hawker for the appellant
S E Hughes for the respondent KMSH Tan for children
Judgment:
1 July 2019
JUDGMENT OF JAGOSE J
This judgment is delivered by me on 1 July 2019 at 2:30 pm pursuant to r 11.5 of the High Court Rules.
.....................................................
Registrar / Deputy Registrar
Solicitors/Counsel:
Wynyard Wood – City Office, Auckland Sarah Hughes, Wellington
Kiriana Tan, Barrister, Hamilton
ARG v BKL [2019] NZHC 1514 [1 July 2019]
[1] ARG and BKL are parents and guardians of two children, in relation to whom Judge D G Smith in the Family Court at Hamilton made parenting orders under the Care of Children Act 2004 (the “Act”) in decisions of 19 December 2018 and 12 February 2019 (the latter mistakenly dated 12 February 2018).1
[2] The orders generally are to endorse and enforce the parties’ “strict parallel parenting arrangement”, necessary given the extent of conflict between them over care of their children. Judge Smith explained the foundation for such arrangement is “[b]oth parties … believe that [the children] are safe in the care of either parent”.2 By ‘parallel parenting’ is meant, except at the extremes, each parent cares for the children while in their respective custody without reference to the other.3 The Judge observed the fundamental nature of that arrangement, in holding against provision for the non- caring parent’s contact as “cut[ting] right across the concept of parallel parenting”.4
[3] Of some materiality here is the arrangement was to be conducted “with the assistance of a parenting coach”:5 “[w]here agreement is required in the Order, it is intended that the agreement be obtained through the Parenting Coach”.6 No such person yet has been appointed.
[4] ARG appeals two discrete aspects of those parenting orders: their provisions “[n]either party will enter either child in any extra-curricular activity without the prior agreement of the other parent”;7 and “[ARG]’s extended holidays with the children will be in odd numbered years, [BKL]’s in even numbered years”.8 It is argued the former errs as to the parties’ agreement on such constraint; the latter – because of other orders, giving ARG care of the children during April rather than July school holidays in odd-numbered years9 – disregards the children’s welfare and best interests.
1 Respectively, ARG v BKL [2018] NZFC 9912 [2018 decision], and ARG v BKL [2019] NZFC 837 [2019 decision].
2 2019 decision, above n 1, at [14].
3 CR v JS FC Auckland FAM 2008-004-673, 11 April 2011 at [21]; and L v A (No 2) (2003) 23
FRNZ 602 (HC) at [57]–[59].
4 2019 decision, above n 1, at [48].
5 Appendix A to 2019 decision [Parenting order] at 19.
6 At 20.
7 At 23.
8 At 11.
9 At 8–9.
Approach on appeal
[5] The Act’s s 143 entitles any party to proceedings under the Act in the Family Court (or child to whom the proceeding relates) to appeal to this Court against the Family Court’s final determination of the proceeding.
[6] The appeal is a general appeal, in which ARG bears the onus of satisfying me I should differ from the Family Court’s decision. I am only justified in interfering with that decision if I consider the decision is wrong – in other words, the Judge erred.10
[7] I then am to come to my own assessment of the merits of the case afresh, without deference to the Family Court (save for some caution in differing on witness credibility, when I have not had the advantage of observing the witnesses).11 I may rely on the Family Court’s reasons in reaching my own conclusions, but the weight I give those reasons is a matter for me.12
Relevant legislative provisions
[8]Sections 4 to 6 of the Act relevantly provide:
4 Child’s welfare and best interests to be paramount
(1) The welfare and best interests of a child in his or her particular circumstances must be the first and paramount consideration—
(a)in the administration and application of this Act, for example, in proceedings under this Act; and
(b)in any other proceedings involving the guardianship of, or the role of providing day-to-day care for, or contact with, a child.
(2) Any person considering the welfare and best interests of a child in his or her particular circumstances—
(a)must take into account—
(i) the principle that decisions affecting the child should be made and implemented within a time frame that is appropriate to the child’s sense of time; and
(ii) the principles in section 5; and
10 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [13].
11 At [13].
12 Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [31].
(b)may take into account the conduct of the person who is seeking to have a role in the upbringing of the child to the extent that that conduct is relevant to the child’s welfare and best interests.
(3) It must not be presumed that the welfare and best interests of a child (of any age) require the child to be placed in the day-to-day care of a particular person because of that person’s gender.
…
5 Principles relating to child’s welfare and best interests
The principles relating to a child’s welfare and best interests are that—
(a) a child’s safety must be protected and, in particular, a child must be protected from all forms of violence (as defined in section 3(2) to (5) of the Domestic Violence Act 1995) from all persons, including members of the child’s family, family group, whānau, hapū, and iwi:
(b) a child’s care, development, and upbringing should be primarily the responsibility of his or her parents and guardians:
(c) a child’s care, development, and upbringing should be facilitated by ongoing consultation and co-operation between his or her parents, guardians, and any other person having a role in his or her care under a parenting or guardianship order:
(d) a child should have continuity in his or her care, development, and upbringing:
(e) a child should continue to have a relationship with both of his or her parents, and that a child’s relationship with his or her family group, whānau, hapū, or iwi should be preserved and strengthened:
(f) a child’s identity (including, without limitation, his or her culture, language, and religious denomination and practice) should be preserved and strengthened.
...
6 Child’s views
(1) This subsection applies to proceedings involving—
(a)the guardianship of, or the role of providing day-to-day care for, or contact with, a child; or
(b)the administration of property belonging to, or held in trust for, a child; or
(c)the application of the income of property of that kind.
(2) In proceedings to which subsection (1) applies,—
(a)a child must be given reasonable opportunities to express views on matters affecting the child; and
(b)any views the child expresses (either directly or through a representative) must be taken into account.
[9] ‘Welfare and best interests’ are distinct objects: the former is primarily about provision for the child’s day-to-day wellbeing, while the latter has an eye for the child’s longer-term interests.13 They are to be regarded in the child’s particular (and unique) circumstances, and are “the first and paramount consideration”.
[10]Sections 15 and 16 provide:
15 Guardianship defined
For the purposes of this Act, guardianship of a child means having (and therefore a guardian of the child has), in relation to the child,—
(a) all duties, powers, rights, and responsibilities that a parent of the child has in relation to the upbringing of the child:
(b) every duty, power, right, and responsibility that is vested in the guardian of a child by any enactment:
(c) every duty, power, right, and responsibility that, immediately before the commencement, on 1 January 1970, of the Guardianship Act 1968, was vested in a sole guardian of a child by an enactment or rule of law.
16 Exercise of guardianship
(1) The duties, powers, rights, and responsibilities of a guardian of a child include (without limitation) the guardian’s—
(a)having the role of providing day-to-day care for the child (however, under section 26(5), no testamentary guardian of a child has that role just because of an appointment under section 26); and
(b)contributing to the child’s intellectual, emotional, physical, social, cultural, and other personal development; and
(c)determining for or with the child, or helping the child to determine, questions about important matters affecting the child.
(2) Important matters affecting the child include (without limitation)—
(a)the child’s name (and any changes to it); and
(b)changes to the child’s place of residence (including, without limitation, changes of that kind arising from travel by the child) that may affect the child’s relationship with his or her parents and guardians; and
13 C v W (2005) 24 FRNZ 872 (FC) at [24].
(c)medical treatment for the child (if that medical treatment is not routine in nature); and
(d)where, and how, the child is to be educated; and
(e)the child’s culture, language, and religious denomination and practice.
(3) A guardian of a child may exercise (or continue to exercise) the duties, powers, rights, and responsibilities of a guardian in relation to the child, whether or not the child lives with the guardian, unless a court order provides otherwise.
(4) Court order means a court order made under any enactment; and includes, without limitation, a court order that is made under this Act and embodies some or all of the terms of an agreement to which section 40(2) or section 41(2) applies.
(5) However, in exercising (or continuing to exercise) the duties, powers, rights, and responsibilities of a guardian in relation to a child, a guardian of the child must act jointly (in particular, by consulting wherever practicable with the aim of securing agreement) with any other guardians of the child.
(6) Subsection (5) does not apply to the exclusive responsibility for the child’s day-to-day living arrangements of a guardian exercising the role of providing day-to-day care.
[11]Finally, s 48 provides:
48 Parenting orders
(1) On an application made to it for the purpose by an eligible person, the court may make a parenting order determining the time or times when specified persons have the role of providing day-to-day care for, or may have contact with, the child.
(2) A parenting order determining that a person has the role of providing day- to-day care for the child may specify that the person has that role—
(a)at all times or at specified times; and
(b)either alone or jointly with 1 or more other persons.
(3) A parenting order determining that a person may have contact with the child may specify any of the following:
(a)the nature of that contact (for example, whether it is direct (that is, face to face) contact or some form of indirect contact (for example, contact by way of letters, telephone calls, or email)):
(b)the duration and timing of that contact:
(c)any arrangements that are necessary or desirable to facilitate that contact.
(4) A parenting order (whether an interim parenting order or a final parenting order) may be made subject to any terms or conditions the court considers appropriate (for example, a condition requiring a party to enter into a bond).
[12] The s 5(e) principle a child should continue to have a relationship with both parents emphasises s 48’s role.
Discussion
—extra-curricular activities
[13]Under a heading “Conditions/guardianship arrangements”, the Judge said:14
The parties agree before either child is entered in any extra-curricular actvities that both parties must agree. It is the responsibility of the parent in whose care they are to ensure the children attend that activity.
Both parties seek a condition concerning the attendance of parents at school events. Unless the school requests both parents to be there, attendance at the school whether for a sporting event or some other form of extra-curricular activity or a parent teachers meeting would be the responsibility of the caring parent. Again, to do otherwise cuts across the concept of parallel parenting.
[14] There is no specific agreement between the parents on the subject of the former paragraph. If the Judge considered that was their agreement, he erred. But it is notable similar provisions as appear in the parenting order at 23 also existed in the prior 2014 parenting order.15
[15] ARG does not want to secure BKL’s agreement to every extra-curricular activity in which the children are to be engaged. BKL does not want the children to be engaged in extra-curricular activities without such agreement, incentivised it appears by ARG’s proposal for a particular activity to which BKL is opposed.
14 2019 decision, above n 1, at [53]–[54].
15 As follows:
Both parents shall agree before entering the children into any extra-curricular activities. Once the extra-curricular activities have been agreed upon then each parent shall be responsible for ensuring that the children attend that activity when the children are in that parent's care.
Both parents shall be entitled to attend school activities and functions, or any extra-curricular activities, at any time regardless of who has the care of the children at the time.
[16] However, error as to the parents’ agreement is not to render the provision errant in itself. There is a number of relevant considerations.
[17] First, as s 16(5) makes express, guardians must exercise their “duties, powers, rights, and responsibilities … in relation to a child” “jointly (in particular, by consulting wherever practicable with the aim of securing agreement)”. Those ‘duties, powers, rights, and responsibilities’ include “contributing to the child’s intellectual, emotional, physical, social, cultural, and other personal development”, and “determining for or with the child, or helping the child to determine, questions about important matters affecting the child”. ‘Important matters’ are defined inclusively, “without limitation”. Some extra-curricular activities may fall within those ‘contributions’ and ‘important matters’ to be jointly exercised, which a parenting order could not exclude. Thus the parenting order here cannot provide for extra-curricular activities to be determined by the caring parent alone.
[18] But neither is there justification for thinking all extra-curricular activities require the parents’ agreement. ‘Extra-curricular activities’ is not a term of art. As counsel agreed, it is broad enough to capture any activity engaged in outside the school’s curriculum, from structured sports or other tuition to socialising with friends. Yet the Judge was clear (in diverging from the 2014 arrangement), by default, any “attendance at the school … for … extra-curricular activity … would be the responsibility of the caring parent”.16 Parallel parenting is the informative principle.
[19] Third, the provision refers to the child being ‘entered’ in such activities, and the following provision establishes the responsibility of the caring parent to ensure the children’s attendance.17 Such suggests the Judge intended agreement only before the caring parent commits a child to attend an activity during the other parent’s care. Far from offering the non-caring parent a veto over the children’s engagement in activities in the other’s care, it obliges one parent not to impose on the other parent’s care, except with that other’s agreement. The Judge doubtless would have said such a veto ‘cut right across’ parallel parenting arrangements.
16 At [54].
17 Parenting order, above n 5, at 24.
[20] Fourth, application of ‘parallel parenting’ principles involve upholding each caring parent’s separate day-to-day care arrangements as made with due regard for their own guardianship obligations. That combination reflects the children’s welfare and best interests in their estranged parents’ lives. And the order’s conditions are as the court considers appropriate,18 irrespective of the parents’ (dis)agreement.
[21]And, last, the children here – doubtless secure in each individual parent’s care
– do not believe one parent needs generally to know what they do with the other parent, or should be entitled to agree it.
[22] For all those reasons, I do not think the Judge erred in any material way in requiring agreement before one parent committed the children to any extra-curricular activity as may require the other parent to ensure their attendance. I therefore have no basis on which to interfere. If the Judge’s error as to the parties’ agreement on such a provision entitled me to reconsider it, I would have restated the provision to have the meaning (and for the reasons) I have explained.
—extended holidays
[23] ARG, who is English and lacks other immediate family in New Zealand, took the children to the United Kingdom during the April holidays this year. There is some minor observation by one child of the other having to wear multiple layers of clothing. ARG proposes to have extended holidays with the children in even-numbered years, thus to be able to travel to the United Kingdom in the more temperate July holidays; having done so this April, ARG would waive any entitlement to do so again next year.
[24] I cannot begin to see what error the Judge may be said to have committed in arriving at the particular division of holidays. ARG’s counsel, Jennie Hawker, inventively responded to my query to that end by relying on s 5(e) and (f)’s principles, preserving and strengthening children’s relationships with their family group and identity. As part of the children’s welfare and best interests, the assertion such also is seasonally-dependent is to undermine and diminish the paramountcy of that consideration. I will not endorse it. Absent error, I may and will not intervene.
18 Care of Children Act 2004, s 48(4).
Result
[25]The appeal is dismissed.
Costs
[26] In my preliminary view, as the successful party, BKL is entitled to 2B costs and disbursements. That is because, from what presently I know of it, none of the steps in this averagely complex proceeding required other than a normal amount of time.
[27] If that is not accepted, and the parties otherwise are unable to agree, costs are reserved for determination on short memoranda of no more than five pages – annexing a single-page table setting out any contended allowable steps, time allocation, and daily recovery rate – to be filed and served by:
(a)BKL within ten working days of the date of this judgment;
(b)ARG within five working days of service of BKL’s memorandum; and
(c)BKL strictly in reply within five working days of service of ARG’s memorandum.
—Jagose J
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