B v P

[2017] NZHC 1421

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-FAMILY-COURT/LEGISLATION/RESTRICTION-ON-PUBLISHING- JUDGMENTS.

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV-2017-470-56 [2017] NZHC 1421

UNDER	the Care of Children Act 2004
BETWEEN	B Appellant
AND	P Respondent

Hearing:	25 May 2017
Appearances:	Appellant in person H Douglas for Respondent E Eggleston for Children
Judgment:	23 June 2017

JUDGMENT OF BREWER J

This judgment was delivered by me on 23 June 2017 at 4:30 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:

Hannah Douglas (Tauranga) for Respondent

Ewan Eggleston (Tauranga) for Children

B v P [2017] NZHC 1421 [23 June 2017]

Introduction

[1]      Mr B and Ms P were in a domestic relationship but have now separated. They have two young children.1   On 25 January 2017, Judge Emma Parsons2 made day-to-day  care  orders3   and  directed  that  the  five  year  old  attend  Maungatapu School.4

[2]      Mr B does not accept these orders.  The day-to-day care orders give him the care of the children for a total of five nights per fortnight, whereas Ms P has them for the other nine nights of each fortnight.  Mr B submits that the Judge was wrong not to order equal care arrangements.

[3]      As to the school, Mr B would like the five year old to go to a Catholic school, Bethlehem College.   Mr B’s view is that the standard of education at Bethlehem College is higher than that at Maungatapu School.  He submits that the Judge was wrong not to have recognised that.

Task

[4]      An appeal against a decision of a Family Court Judge proceeds by way of rehearing.   That is to say, I must examine the case and reach my own view as to whether the orders of the Family Court Judge were available to her.

Discussion

The day-to-day care orders

[5]      Mr B’s position is encapsulated in his written submissions as follows:5

6.If I am a good father for my kids 5 days why am I not good enough to have them 7 days? This is a question that no one can give me an answer to.

1      Aged five years and three years.

2      [P] v [B] [2017] NZFC 531.

3      Care of Children Act 2004, s 48.

4      Care of Children Act 2004, s 46R.

5      Submissions for appellant, dated 5 May 2017.

[6]      Mr B recognises that the first and paramount consideration is the welfare and best interests of the children.6   In his submission, this paramount consideration in the particular circumstances of this case is best given effect to by the children’s parents having equal care of them.

[7]      I have sympathy for Mr B’s position.  However, the problem is that Mr B and Ms P are in a state of conflict and, as Judge Parsons noted, he acknowledges there is no effective communication between them beyond basic children’s needs.7

[8]      Ms P has made allegations of physical abuse by Mr B.  Mr B mostly denies those allegations.

[9]      In turn, Mr B alleges that Ms P has hit the children and he is of the view that Ms P is depressed or otherwise suffers from a mental illness to such a level that there is reason for concern about her care of the children.  This, too, was noted by Judge Parsons, as were reports from a general practitioner and a psychologist to the effect that Ms P did not suffer from a mental illness.

[10]     Judge Parsons, in her analysis of the best option for the care of the children, concentrated on the requirement to protect their safety and protect them from all forms of violence.  Her Honour said:8

In this matter, the issues of concern include allegations of physical abuse, but, as discussed below, the risks of the children being caught up in adult/parental conflict and the effects of that is the far louder and pervasive concern.

[11]     The Judge later went on to say:

[52]     The violence that occurred is, in my assessment, indicative of the enormously dysfunctional relationship between these parents. The parenting relationship that has been created is one which sees each finding fault to some  degree  in  the  other  and  thereby  feeling  forever  justified  in  their position not trusting the other.

[53]     The  far  larger  concern  is  this  dysfunctional  way  of  interaction between the parties.

6      Care of Children Act 2004, s 4.

7      [P] v [B] [2017] NZFC 531, above n 2, at [18].

8 At [43].

…

[57]      Such is the dynamic that while the parties say they support and wish for flexibility and collaborative parenting, the method by which they communicate (or fail to) results in a perpetuation of the dysfunction of their communication resulting in increased frustration on the part of each of them. Whereas parents who can talk would be on the phone and talking at the time of proposed change, this is simply unavailable to these parents. This results in the Court having to consider rigid orders with no expectation of effective communication  beyond  day to  day functional matters (clothing,  doctor’s visits) or any expectation of flexibility.

[58]     These children are provided with no role modelling of their parents able to effectively communicate or talk to each other in person, they have no opportunity to see their parents resolve disputes, sort out misunderstandings, or collaboratively assist them. These children are at risk as a result of this.

[59]     [Ms P] confirmed that [Mr B] is a good parent. She is open to the children spending more time in his care once they are older. [Mr B] gave evidence that [Ms P] is also a good parent. However, he confirmed in evidence that he continues to hold concerns for her mental health and has acted upon those concerns by calling in mental health professionals to check on her wellbeing twice including December 2016. While [Ms P] did suffer from some depression about the birth of [T], the evidence from her doctor filed during these proceedings is that she is not suffering from any mental illness.

[60]     [Mr B] cannot appreciate that his calls to mental health help line, CYFS, and/or police as a first port of inquiry to check the welfare of the children is felt by [Ms P] to be undermining of her. His position that she shouldn’t be fearful of him and that therefore he is justified in interpreting any reaction from her as a possible sign of mental illness undermines his overt statement that he believes she is a good mother.

[12]     Judge Parsons concluded her analysis of the children’s situation as follows:

[80]     However the evidence demonstrated that there is no collaboration, flexibility, ongoing discussion, consultation or respect demonstrated between the parties to support a more shared care arrangement. A primary base of care  with  their  mother  with  significant  time  in  the  care  of  their  father provides them with stability, certainty and routine during the majority of their time.

[81]      There   is   no   good   working   relationship   beyond   day   to   day functionality between these parents. They live sufficiently close to avoiding long travel and will be supported in attending the same day care and schools. Whether their routines are the same at each household is not possible to assess – there was no evidence on this beyond that confirming that the parents do not consult or talk to each other about this to ensure that the routines are the same or similar.

[82]     As a result I am not satisfied that a move beyond the current care arrangement  of  5:9  would  be  in  the  welfare  and  best  interests  of  these children at this time. Ideally an arrangement which would see the children

not having a break of 7 days between being in the care of their father would be possible. In the circumstances of this matter the need to have fewer changeovers and blocks of time with each parent to ensure stability of care is outweighed by the gap.

[13]     I find that I am in agreement with Judge Parsons and I adopt her analysis.

[14]     Mr B asked why, if he is a good father for five days, he is not good enough to have the children for seven days.  The answer is that he is a good enough father to have them for seven days.   But that is not the point.  The actual question is what shared care arrangement most effectively provides for the welfare and best interests of the children.  Because of the inability of Mr B and Ms P to properly share their parenting, a less than equal day-to-day care arrangement – at least at this stage of the children’s lives – is the better outcome for them.

Schooling

[15]     Judge Parsons looked at this issue carefully.  Points she considered are:

·    Maungatapu School is close to where the children live with their mother.

·    Both schools have good ERO reports.

·Neither parent is ardent in their respective faiths. The children are exposed to each of those faiths through the time they spend with their parents.

·    Mr B offered to pay for the extra costs involved in attending Bethlehem

College.  However:

He has not seen, researched or attended any other schools including not having made any inquiries about Maungatapu.9

·The children have been attending the local pre-school from which children commonly go to Maungatapu.

[16]     The Judge decided:

9 At [90].

[95]     The attendance at Maungatapu School provides continuity for [T] with the friends he has made at the Maungatapu day care. To move him to Bethlehem college now would cut his ties from the friends he has now (although would provide the chance to attend with his cousin from next year), is away from the community around where he lives with his mother during his time in her care, and does not provide time within his father’s community around where he now lives in.

[96]     The  parties  accepted  that  either  school  will  provide  a  good education. [Mr B’s] primary consideration being that it is in his view a much better education offered at Bethlehem College than anywhere else. The problem evidentially is there is nothing to support that proposition.

[97]      To attend Bethlehem College would result in [T] being taken out of the areas each of his parents live within. It would not provide the opportunity for him to develop local friendships as easily as a local school provides.

[98]      I am satisfied that their religious upbringing is able to be more than adequately attended to during the time the children are in the care of each parent.

[17]     Again,  I  find  myself  in  agreement  with  Judge  Parsons,  and  I adopt  her analysis as set out above.

Decision

[18]     The appeal is dismissed.

[19]     I add, for Mr B’s benefit, that I have no doubt he is a good and caring father. I know he will not understand this Judgment and will likely see it as the Court penalising him while favouring Ms P.  I hope that Mr B will come to recognise that the appeal has not been about him but about the children.  As the children get older, their needs will change.  I suspect they will see more of Mr B as they get older.  That process will be accelerated if Mr B and Ms P can put their personal conflict to one

side and genuinely co-operate in the best interests of the children.

Brewer J