BL v AG

[2018] NZHC 1581

NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION,

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IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2018-419-147

[2018] NZHC 1581

BETWEEN

BL

Appellant

AND

AG

Respondent

Hearing:

27 June 2018

Counsel:

R Sutton for Appellant

Z Wackenier for Respondent K Tan for children

Judgment:

27 June 2018

ORAL JUDGMENT OF WHATA J

BL v AG [2018] NZHC 1581 [27 June 2018]

[1]                  This is an application for stay in relation to a Family Court judgment permitting the respondent and his two daughters to travel for three weeks to England. The appeal proper, including application for leave to appeal, is not set down to be heard until after the holiday.

Background

[2]                  This matter has a very unfortunate background. Applications were made by AG regarding E’s schooling in June 2017 and were followed by more comprehensive applications concerning guardianship in July 2017. A hearing was convened on 28 August 2017. Judge Collin opened his judgment of 19 September 2017, dealing with this dispute, in this way:

And so another round of AG and BL begins both hoping to inflict the knock- out blow but seemingly unaware that they have done more damage to their daughters than to each other.

[3]                  Critical arrangements, including whether the status quo should prevail, who should have day-to-day care, schooling arrangements and whether in fact the Court should assume guardianship were considered. The Judge elaborated at length on the extent to which both parents have involved the children in their disputes and have little trouble concluding that the then status quo could not continue pending determination of final orders. He also referred to AG’s complaint that E’s school attendance, while with BL, had been poor but noted the attendance problems was inextricably linked to the parenting arrangements and actions of both parents. E’s intensive engagement with health and other professionals, as a further battle ground, is also noted as a matter of ongoing concern, as are other actions of the parents, including videoing each other, the disputes about passports and phone calls.

[4]                  Against this background, the Judge decided to impose strict interim parenting orders designed to substantially reduce the exposure of the children to their parents’ conflict. This included week-about care arrangements, precise timing for pick-ups through the Christmas period and an order that “the parties may travel with the children when they are in their care but may not travel so as to interfere with the care arrangements of the other parent”. The following conditions, among others, were also imposed:

(a)Neither parent is to attend any school event, sporting event or any other function during the week the other parent has the care of the children;

(b)The children are to attend school every day unless they are so unwell that they are unable to do so. If they do not attend school, Ms Tan [lawyer for the children] is to be advised within 24 hours by email directed to her. The email is to contains the reasons [the children] did not attend.

(c)The children are not to change school unless directed by the Court.

[5]                  Leave was also granted to either parent or Ms Tan to seek without notice or urgent directions. The unaffected existing conditions also remained in place.

[6]                  In April this year, AG made an application to vary the orders to enable travel to the United Kingdom with the children between 28 June and 20 July. This was opposed by BL. The sole determination for issue by the Court was whether the children should be allowed to travel to the United Kingdom during that time.

The judgment under appeal

[7]                  The decision granting the application was made on 27 April 2018.1 Various claimed jurisdictional issues were rejected by the Judge. He noted that AG had no option other than to make an application to the Court for the determination of the issue. If he had failed to do so, he would have been liable for sanctions either under ss 77 or 80 and would have been justifiably accused of failing to comply with the Court order.2

[8]                  The Judge also rejected the suggestion that because the current orders are interim, the Court does not have the right to further amend the orders pending final determination. The Judge stated that, pursuant to s 49, at any time before a parenting order is finally determined, a Judge may make an interim parenting order that has effect until the final order has been made.

[9]                  The Judge stated the only issue for determination is whether the travel is in the welfare and best interest of the children, having regard to ss 4, 5 and 6 and, in

1      The application was granted subject to a timing change, that the travel would instead take place between 6 July and 27 July 2018.

2      AG v BL [2018] NZFC 3096 at [4].

particular, the principles set out at ss 5(e) and (f). The Judge refers to the children’s views. With the assistance of Ms Tan, the Judge made several observations about those views, including that A is very keen to travel while E is not. He notes that both children could identify both the good and negative aspects of the travel.

[10]              The Judge also identified the respective positions of the parties, noting that AG identifies the benefits of children going to the United Kingdom and spending time in their country of birth, spending time in their paternal grandmother’s home before it is sold, attending some Harry Potter events, and visiting family and friends. BL is recorded as stating that there is no urgency, that the children have had overseas travel this year to Fiji and that the travel will impact on her time with them and will affect the schooling of A which is recorded as already being behind her peers.

[11]In resolving to permit the travel, the Judge observed (in summary):

(a)Section 5(e) requires the child should continue to have a relationship with their family group and s 5(f) requires the child’s identity be preserved and strengthened;

(b)The children have significant English heritage which is recent and remains ongoing;

(c)The children should and must, if possible, be given regular opportunities to travel to the United Kingdom so they can form, maintain and preserve relationships with their English whanau and have the opportunity of developing a growing sense of their English culture;

(d)He disagreed with BL’s position that the children have no connection to the home in which AG’s mother resided;

(e)He acknowledged:

(i)The issues raised by the children, including that international travel can be tiring and often leads to fights, disagreements and bad conditions caused by jetlag;

(ii)There is a known history of complaints regarding AG ignoring the children, of disagreements between him and E, and not being unavailable to discuss problems when they arise;

(iii)Against that, at Christmas time the children travelled with their father to Fiji for a week and no known complaints exist regarding that travel other than that A was sunburnt;

(f)A has got behind in her schooling and that E has missed a great deal of school time. There is also reference to a comment made by E that “it was a bit rich for AG to take the children out of school when he complained regarding their absences which suggests she has been recently talked to about that” – according to the Judge, it was an adult comment to make;

(g)In any event, the children have been far more regular in their school attendance more recently and the Judge was not satisfied that having a week off school for overseas travel will affect their learning in any way. On the contrary, he observes that overseas travel can be a good opportunity to teach the children about history, geography and England, and provide them with life experiences that cannot be provided within a classroom;

(h)The present order as framed restricts the travel to one week and it is unreasonable to expect the children to travel to and from England in a week;

(i)He rejects the argument that he has already determined the issue of extended overseas travel;

(j)Ultimately, he does not consider that an additional week’s travel is a material variation to the existing orders; and

(k)He therefore made the orders enabling the travel to occur.

Argument

[12]The central grounds raised by the appellant for stay are:

(a)The request for additional travel time is incongruent with concerns previously expressed by the respondent about the children’s absence from school, noting that also soon after the present orders were made, a further application was made to alter A’s schooling arrangements;

(b)The Judge in his first decision of 19 September 2017, stated:

Attendance at school is not an option. E is eight. She does not have the right to choose whether she goes to school. It is a legal requirement to attend and a parent can be criminally prosecuted for failing to ensure that their children are at school when they ought to be.

(c)There is no need to or justification to travel to England which affects their schooling and derogates from the existing interim order.

(d)The Judge wrongly did not follow the direction made by Hammond J in Fletcher v McMillan, namely:3

Assuming there has been a state of affairs that can properly be described as a status quo, or something like it, should not be disturbed unless the welfare of that child, using the term in the largest sense as covering physical, mental and moral, matters, is distinctly put at risk.

(e)Given the likely disrupting effect of long distance travel, the decision to grant the application was wrong.

(f)There is evidence that E remains steadfastly against the travel and that A is not committal. These views must be given added weight, especially as E has been consistently opposed to the travel.

(g)The appeal will be rendered nugatory if the travel occurs.

3      Fletcher v McMillan (1996) 14 FRNZ 234 at 236.

(h)There were also procedural frailties in the process adopted by Court below, given the without notice procedure. It was adopted even though, contrary to r 416H(b), there was no undue hardship and such hardship could not be established.4 This is said to amount to an abuse of process as an on notice application process is subject to clear statutory timeframes.

[13]              The respondent and Ms Tan, for the children, submit granting the stay would not be in the best interests of the children. Ms Tan noted that A appeared to be equivocal about the holiday while E did not want to go. In her view though, these opinions reflect the difficulties confronted by the children within their situation.

[14]              Ms Wackenier also raises a procedural objection, namely, leave is needed for an appeal of a s 46R decision. Within this rubric, she submits that in order to pass the leave threshold, there must be a substantive effect on the children. She submits that none exists.

[15]              Ms Wackenier also emphasises that significant resources have been applied to a holiday once the decision was made and that the appeal was filed at the last possible minute and that the application in fact for stay was only raised at the first conference.

Assessment

[16]              It is common ground the threshold for granting a stay was framed by Judge Mather in Crosby v Crosby as follows:

[a]The Family Court has power to entertain an application for stay of proceedings in respect of an appeal against its judgment.

[b]The overriding consideration in such an application is the welfare of the children.

[c]Whether or not the appeal will be rendered nugatory if a stay is refused will be a highly relevant consideration.

[d]The arguments in favour of a stay will be stronger if the decision under appeal has the effect of significantly changing the status quo.

4      Family Court Rules 2002, r 416H(b).

[e]The Court will have regard to any evidence of lack of bona fides in the filing of an appeal and an application for stay as a consequence.

[f]The reluctance of the High Court on appeal to interfere with findings of credibility, and the disposal of an appeal largely or entirely on the evidence heard in the Family Court, decrease the prospects of successful appeal and hence weaken the arguments in favour of a stay.

[g]Each case will turn on its own facts. The length of time before the appeal is likely to be heard, the current circumstances of the parties and children and the consequence of delay pending the hearing of the appeal will all be relevant.”

[17]              Priestley J, on appeal, added that the observation at (f) should be modified, noting (in short) that the circumstances at the time of appeal might justify a less tolerant approach to the Family Court judgment.5

[18]              The present notice of appeal simply alleges the Court erred in fact and law, considered irrelevant considerations and failed to consider relevant considerations. Plainly the notice is too widely drafted to have any cogency whatsoever. However, with the benefit of argument, I interpolate that the main ground of appeal, other than the procedural issues raised, is that the Judge was wrong to derogate from the status quo as the variation to the interim order could not be justified on child-welfare grounds.

[19]              I agree that an appeal framed like that raises a substantive matter. I also agree that a variation to parenting orders must be clearly justified. If pressed and required to do so, I would have granted leave to bring the appeal. The interim orders, now in place for some nine months, have provided the routine so clearly needed by the children. So, it is fair to bring a case about whether that order was justified. However, I am satisfied the application for stay should not be granted. First, in agreement with the Judge, there is no jurisdictional bar to the application to vary an interim order. Leave was granted to seek further directions. In any event, interim orders must be capable of variation having regard to, among other things, the welfare of the children sometimes under urgency.

5      Crosby v Crosby HC Auckland AP124-SW01, 21 December 2001 at [29]-[30].

[20]              Furthermore, while I make no final determination as to the procedural requirements in this context, for the purpose of an application for stay, I do not consider that a “fast track” approach was such an abuse of process to warrant a stay. On this, the Family Court enjoys wide jurisdiction to determine its own process. Moreover, BL has had a fair opportunity to be heard in a manner commensurate with the issue that was before the Family Court and now before this Court.

[21]              Second, the variation to the existing order is minor. There being no bar to overseas travel per se, the issue is whether an additional week traveling with AG to England is objectionable on child welfare grounds. While, as Hammond J put it in Fletcher, the status quo is to be preserved where that has been shown to further the interests of the child, variation to the existing orders to permit an additional week with one parent for a special trip appears unobjectionable, even with the fraught background in this case and the pressing need for stability. In this regard, I am advised that extended holidays were previously allowed, referring to a previous order by consent in 2014. I simply note, however, that I had not sighted that particular order.

[22]              Third, that the Judge fairly and reasonably weighed the competing considerations in terms of the interests of the children, including their views. He plainly has an in-depth understanding of the circumstances of all affected by his order and, in particular, the children. I also broadly agree with his assessment, based on the information available to me. Whakapapa is an ingredient of identity and providing physical connection to a child’s whakapapa, to a child’s heritage, is a legitimate consideration. While the break in routine and the likely jetlag are negative factors to be weighed, the benefits of enabling the children to directly experience their heritage outweigh those factors.

[23]              At this juncture, I acknowledge the views of E, in particular, who appears opposed to travel. But, as submitted by Ms Tan, her view plainly is coloured by loyalty to her mother, rather than genuine apprehension about travel with her father. That conclusion is supported by the observations of Ms Trenberth in her s 133 report, namely that:

E has wholeheartedly accepted BL’s influence.

[24]              I agree therefore with Ms Tan, that this context justifies placing less weight on E’s objections. Ms Tan also made the insightful submission that depriving E of this opportunity may entrench her previously poor relationship with her father. As for A, Ms Tan says she is caught in a loyalty bind and not wanting to disappoint either parent and has therefore been very careful about the words that she has used.

[25]              Fourth, while the appeal will be rendered nugatory if the stay is not granted, the respondent will lose the fruits of his success in the Family Court if it is. I therefore consider this factor to be neutral. In addition, I want to be clear that nothing I say here should be seen to endorse applications for variation to interim orders as anything other than the exception to the rule. As I have said, in a case like the present, the children need a settled routine and disruption to that routine should be avoided unless clearly justified. For this reason, the outcome should not be viewed by AG as setting a precedent for future applications of this kind. He will need to show that the benefits of the variation clearly outweigh the detriment to the children caused by altering their routine. A second visit to England, for example, may not carry the same weight as it did on this occasion.

[26]              Finally, there is an issue as to the effect of the variation on the balance of the existing order. My understanding is that once the holiday is complete, the terms and conditions of the existing order will apply as they did prior to the variation. In any event, this issue is not of such moment as to warrant a stay. If there is any ongoing doubt about this, the parties should have recourse to the Family Court for further assistance.

[27]              In the result, given my impression of the merits of the appeal, and the clear benefits to the children of enabling them to physically experience their cultural heritage, I am satisfied that a stay should not be granted.6

6      In delivering judgment, I erroneously included a “not” before “satisfied”.

Costs

[28]              I will reserve costs but my preliminary indication is that I think costs should lie where they fall, particularly if BL is legally aided.