Brown v Wilson
[2016] NZHC 262
•5 February 2016
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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2015-404-002708 [2016] NZHC 262
IN THE MATTER OF Care of Children Act 2004 BETWEEN
SARAH BROWN Appellant
AND
COURTNEY WILSON Respondent
Hearing: 3 February 2016 Appearances:
J Robertson and C Denhardt for Appellant
DAD Holbrook for Respondent
S W Houghton Lawyer for ChildJudgment:
5 February 2016
Reasons:
24 February 2016
REASONS JUDGMENT OF HINTON J
This judgment is delivered by me on 24 February 2016 at 11.55 am pursuant to r 11.5 of the High Court Rules.
…………………………………..
Registrar / Deputy Registrar
Solicitors/Counsel:
J Robertson, Barrister, Auckland
Wynyard Wood, Solicitors, Auckland
Holbrook Law, Solicitors, AucklandS Houghton, Barrister, Auckland Copy to: Appellant
SARAH BROWN v COURTNEY WILSON [2016] NZHC 262 [5 February 2016]
Introduction
[1] The case is about the care of a child of the parties, Isaac Brown-Wilson, who is aged nine.
[2] Isaac’s mother appeals against the judgment of Judge Rogers in the Family Court at Auckland dated 13 October 2015.1 The parties, who had shared Isaac’s care equally, were both seeking primary care. The Judge gave primary care to Mr Wilson and contact every second weekend to Ms Brown.
[3] Shortly after the hearing, on 5 February 2016, I gave judgment allowing the appeal.2 I ordered that Isaac be in the appellant’s day-to-day care but with contact for Mr Wilson that was much wider than the Judge had ordered for Ms Brown. I said I would give reasons later. I now set out those reasons.
Preliminary issue of leave to adduce evidence
[4] Ms Brown sought leave on the appeal to file a brief affidavit. Mr Wilson
filed a response, in case Ms Brown’s affidavit was admitted.
[5] I granted leave at the commencement of the hearing for both affidavits to be filed, as Ms Brown’s affidavit related substantially to non-contentious post-judgment information. Mr Wilson has had an opportunity to reply and I see no prejudice.
[6] Counsel agreed that as both parties had largely limited their affidavits to matters of bare fact, there was nothing to gain by cross-examination.
Background (including relevant new evidence)
[7] Isaac was born in 2006. He is now aged nine years, three months.
[8] Ms Brown was aged 18 when Isaac was born. The parties did not live together. Their relationship ended before Isaac was born. Mr Wilson was not in
contact with Ms Brown during her pregnancy, apparently due to the tensions which
1 SP v CP [2015] NZFC 8402.
2 SP v CP [2016] NZHC 93. The Results Judgment is attached. The names in both judgments have now been anonymised.
had already emerged between them. Mr Wilson has been involved in Isaac’s life
since just after he was born.
[9] At all relevant points until March 2014, the parties have each lived on the North Shore. Ms Brown’s parents and other members of her family live nearby. Isaac and Ms Brown lived with her parents for the first four years of Isaac’s life. I could not find reference to where Mr Wilson’s family live but I note their business is in Glenfield.
[10] On 14 February 2008, Mr Wilson sought court orders relating to contact with
Isaac. In or about June 2008, a shared care arrangement was agreed and, on
23 February 2009, a shared care parenting order was made by consent. That involved Isaac spending four days each week with his mother and three days with his father.
[11] In 2010 or 2011, Ms Brown applied to vary the parenting order, seeking primary care of Isaac. However, on 20 July 2011, further parenting orders were made by consent providing for equal shared care; with Isaac to be in Mr Wilson’s care once he started school from Wednesday to Monday morning in week one and Wednesday to Friday morning in week two. This is described as a 5:2:2:5 parenting arrangement.
[12] In August 2011, Mr Wilson filed an application relating to where Isaac should attend school. There was a hearing in relation to that application in December 2011 and Judge Druce determined that Isaac should attend CP School in Birkenhead, being the school favoured by Ms Brown. He found little to distinguish the schools being argued over. The primary reason he settled on CP School was because Isaac had a number of his peer group at that school.
[13] Isaac started at CP School in or about February 2012.
[14] Several years ago, Mr Wilson married and he has since had two further children. The elder child, Indie, was just over two years old at the time of the Family Court hearing.
[15] There have always been significant issues between the parents who, after all, had a very brief relationship at a young age and, presumably, had a similarly limited relationship with their respective families.
[16] Mr Wilson and his wife moved, without prior warning, to Karaka, in March 2014. In his affidavit dated April 2014, sworn immediately after his move, Mr Wilson said that he and his wife moved their family base to Karaka “to capitalise on a more family-friendly community and for better work opportunities for Renee.” He later said one of the reasons for the move was to get as far away from the North Shore as he could, presumably referring to the appellant.
[17] Mr Wilson works in Glenfield on the North Shore. His viva voce evidence at the Family Court hearing (but apparently not mentioned in his affidavit evidence) was that he intended to seek employment in the South Auckland area at the end of
2015. He has however continued to work in Glenfield, his evidence now being that he intends to remain in the same employment until parenting arrangements for Isaac are determined and settled. He works in a business owned by his parents and has done so on and off since about 2001. Mr Wilson’s wife is apparently now employed in South Auckland.
[18] Ms Brown, who obtained university qualifications after Isaac was born, also works full-time.
[19] While they owned a home on the North Shore, which they sold, Mr Wilson and his wife are now renting a large home in Karaka. They intended to purchase a home there but cannot afford to do so because of litigation costs.
[20] Ms Brown is also in rental accommodation.
[21] On 2 April 2014, very shortly after Mr Wilson’s move to Karaka, Ms Brown filed a without notice application to vary the parenting orders, seeking day-to-day care of Isaac and proposing that Mr Wilson have contact with Isaac on alternate weekends. She also filed an application to resolve guardianship disputes, namely for orders that Isaac continue at CP School; that he attend sports games on the
North Shore; that his passport be held by her; and for a change in his surname to include hers.
[22] Despite Mr Wilson’s move to Karaka, about 40 kilometres away from Isaac’s school, the shared care arrangement continued until the Family Court hearing before Judge Rogers. Mr Wilson drove Isaac to school and other activities during his care periods, made feasible by the fact that he was going backwards and forwards to the North Shore on weekdays anyway for his work.
[23] On 19 August 2014, a psychologist’s report was provided by Dr Louise
Smith, pursuant to s 133 of the Care of Children Act 2004 (“the Act”).
[24] The Family Court hearing took place from 13 to 15 July 2015.
[25] In or about September 2015, Ms Brown, who is in a relationship with Mr M, became pregnant. Ms Brown and Mr M later became engaged. The child is due in late May 2016.
[26] The Family Court judgment was released on 13 October 2015. The learned Judge ordered that Mr Wilson have primary care of Isaac during the school terms, with Ms Brown having care every second weekend, and the holidays being equally shared.
[27] For about two months, Isaac was in Mr Wilson’s day-to-day care in Karaka. He has then spent equal time with the parties over the long Christmas break.
[28] Under the judgment, Isaac was to remain at CP School until the end of the school year and shift to HP School in Karaka at the beginning of the 2016 school year, for the start of Year 5.
[29] Ms Brown filed this appeal on 11 November 2015.
[30] An application for stay came before me in December 2015. At that point, the appeal hearing was scheduled for April 2016. The main issue on the stay application was a possibly unnecessary shift to HP School, in the event the appeal were
successful. To obviate the need for a stay, the parties agreed to my suggestion that the hearing be brought forward and an urgent judgment delivered. Isaac would then start at whichever school resulted from the judgment.
Family Court decision
[31] The learned Judge, at the conclusion of the hearing, indicated it was going to take her some time to decide the matter. At various points in the record, it is clear she found the case a very difficult one.
[32] She noted both parents commenced the hearing from the standpoint that shared care of Isaac was no longer practical or in Isaac’s best interests and they each sought orders for primary care. Ms Brown was, however, open to a shared care proposal made during the hearing by the Judge but Mr Wilson rejected it.
[33] The Judge said she believed strongly that continuation of the then existing shared-care arrangement would be:3
.. the most desirable outcome for Isaac, as it would allow him to benefit from the strengths of each parent and also allow each parent the opportunity to balance the other’s weaknesses.
[34] The Judge was clear that it was also Isaac’s wish for the shared-care parenting arrangement to continue and the Judge obviously considered that wish to make complete sense.
[35] The Judge took the view that it was simply impossible to continue with the shared care arrangement. She said that:4
… Although the parents have managed to make shared care work since Mr Wilson chose to relocate himself almost as far from Ms Brown as is possible while remaining in the greater Auckland metropolitan area, that has been as a consequence of Mr Wilson continuing to work in Glenfield and being able to transport Isaac to school at CP School. Fortunately Isaac has coped well with all of the travel and enjoys the one on one time it gives him with his father. Travel is not a major barrier to the continuation of shared care, but Mr Wilson’s decision to seek employment in the South Auckland area will make it impossible to continue the current regime after this year.
[36] The Judge repeated later that Mr Wilson’s decision to seek employment in
Karaka really had sounded the death knell for the current care structure.
[37] The Judge said that a primary care arrangement had to be reached and in her view that would result inevitably in a second best outcome.
[38] The Judge found that both parents were capable and loving. She referred to the lawyer for the child’s description of them as “two intelligent, articulate, loving, devoted parents…”5
[39] The Judge considered that neither parent was truly capable of supporting Isaac’s relationship with the other parent and she expressed concerns about other aspects of each party’s approach to the parenting relationship.
[40] The Judge considered that Ms Brown had a greater focus on Isaac and his welfare and best interests than did Mr Wilson.
[41] She said that Mr Wilson had a tendency to resort to “rigid black and white thinking” and to “brinkmanship”, but that his shortcomings impacted more on the quality of the parental relationship than on his care of Isaac.
[42] The Judge said that Dr Smith had identified risks in leaving Isaac in his
mother’s primary care:6
... The risks are personal to Isaac (for example a reduction in his capacity to his becoming ‘self-regulating’ and independent) but also extend further to the relationships between Isaac and his parents. Dr Smith anticipates that rather than enhance the relationship with Ms Brown, primary care with mother to the cost of the relationship with father will ultimately have detrimental effects on both relationships, especially on that with Ms Brown.
[43] The Judge said it was impossible to do other than accept Dr Smith’s observation. She considered the expert’s assessment as to what arrangement would best promote Isaac’s development was “crucial” to her determination of what would be in Isaac’s welfare and best interests.
[44] The other factor the Judge identified in reaching her decision was that it was “more than usually significant that Isaac enjoys a very good relationship with his younger half sister, Indie”, as it is “a simple, happy relationship”, and she anticipates that, moving into the future, it “may offer some consolation for the lack of a positive, collaborative, parenting relationship between Isaac’s parents.”7
[45] Without going into the detail of the orders made, the judgment has the following broad effect:
(a) Mr Wilson has day-to-day care of Isaac and Ms Brown has contact with Isaac two nights every second weekend.
(b)The parent who does not have care is prevented from initiating direct or indirect contact with Isaac while he is in the care of the other parent. Isaac is free to contact either parent at any time.
(c) If Isaac is to participate in organised sports, Mr Wilson is entitled to enrol him in activities in the Karaka community. On her fortnightly weekend, Ms Brown is required to transport Isaac to his weekend sporting commitments wherever they may be in the greater Auckland area.
(d)Neither party is to attend Isaac’s sporting activities when Isaac is in the other’s care (which more or less follows from (b) above in any event).
(e) Isaac is to attend HP School from February 2016 to the end of his
Year 8 education, being for the next four years.
Approach to appeal
[46] It is now accepted that the principles of Austin, Nichols & Co Inc v
Stichting Lodestar8 apply to decisions of the Family Court concerning the care of
children. Earlier arguments suggesting that such decisions constitute the exercise of a discretion are not valid.9
[47] I adopt the approach taken under Austin, Nichols & Co Inc v
Stichting Lodestar as set out by counsel for the respondent:
(a) The appellant bears the onus of satisfying the appeal court that it should depart from the decision of the court appealed from under appeal.
(b)It is only if the court considers that the appealed decision is wrong that it is justified in interfering with it.
(c) Whilst the lower court may have had a particular advantage (such as specialist expertise or the opportunity to assess the credibility of witnesses) and may rightly hesitate to conclude that findings of fact or fact and degree are wrong, the appeal court has the responsibility of arriving at its own assessment of the merits of the case.
(d)No deference is required to the lower court beyond the customary caution appropriate when seeing the witnesses provides an advantage in assessing credibility.
Points on appeal
[48] The following points are raised on appeal:
(a) The judgment failed to have sufficient regard to the welfare and best interests of the child, as mandated by s 4(1) of the Act, in particular the principles set out in s 5(c), (d) and (e).
(b) The judgment relied on the respondent’s contention that he intends to
leave his job on the North Shore and seek employment in
South Auckland, in the absence of any evidence of this.
9 Bashir v Kacem [2010] NZCA 96, [2010] NZFLR 865 at [33].
(c) The judgment failed to sufficiently take into account the child’s views as mandated by s 6 of the Act or provide any reasons as to why these were disregarded.
(d)The judgment failed to adequately explore other options for the child’s care, despite acknowledging that the continuation of a shared-care arrangement would be the most desirable outcome for the child.
(e) The judgment placed undue reliance on the report filed by the Court-appointed psychologist pursuant to s 133 of the Act. More specifically, the judgment placed too much weight on the psychologist’s concerns in relation to the appellant and, correspondingly, gave insufficient weight to the psychologist’s concerns in relation to the respondent, in circumstances where concerns were raised about both parties.
(f) The judgment placed insufficient weight on the evidence of the respondent’s adult focussed attitude and undermining of the appellant to the child, and correspondingly, the impact this has had on his parenting and the child’s relationship with the appellant.
(g)The judgment elevated the child’s sporting activities, as well as the child’s relationship with his half-sister and the effect of that relationship, above the time he spends, and his relationship, with his mother (without any evidential basis to do so).
(h)The judgment obviated the need for the respondent to act jointly with the child’s other guardian (namely, the appellant), as required under s 16 of the Act, in regards to the child’s involvement in sporting activities.
Legislative principles
[49] Under s 4(1) of the Act, a child’s welfare and best interests are to be the “first and paramount” consideration in a case such as the present. Under s 4(2)(a), a court, in determining what best serves a child’s welfare and best interests, must take account of the principles specified in s 5.
[50] The principles that must be taken into account as listed in s 5 are
(in summary):
(a) a child’s safety must be protected and, in particular, they
must be protected from all forms of violence;
(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 a child’s relationship with his or her family group, whānau, hapū, or iwi should be preserved and strengthened; and
(f) a child’s identity (including, without limitation, his or her culture, language, and religious denomination and practice) should be preserved and strengthened.
[51] Under s 6 of the Act, a child’s views must be taken into account. It is for the court to determine what weight, if any, should be placed upon those views.
Discussion
[52] I note at the outset that I consider the effect or potential effect of the ancillary orders made, too restrictive on whoever does not have primary care and not in the best interests of Isaac. It was accepted by all counsel that orders such as “having no direct or indirect contact” (which arguably precluded attending any events) for
12 out of 14 days, were not necessary or justified. A more liberal outcome for the non-primary carer impacts on the reasoning in the Family Court judgment.
[53] The case has to be determined in accordance with ss 4 and 5 of the Act, not in accordance with the views of a psychologist, although the net result may be the same.
[54] The Court of Appeal in Bashir v Kacem said that:10
… the Judge should have referred to all the s 5 principles, briefly indicating which were not relevant and why, before discussing those which were relevant in more detail. As Rodney Hansen J notes in AD v KT [Parenting order], such an approach is desirable as it helps to avoid unnecessary argument about whether the Judge has or has not considered particular principles.
[55] Having said that, in Bashir v Kacem, the High Court Judge had not referred specifically to s 5 at all and the Court of Appeal was nonetheless satisfied that she did consider each of the principles.
[56] In the present case, the Judge said she had considered all the s 5 principles but she did not set out which of the subsections were, in her assessment, not relevant and why, nor did she discuss those which were relevant in any detail, or in the case of s 5(d), at all. The Judge’s actual assessment of the s 5 principles is not discernible from the judgment.
[57] I therefore consider each of the s 5 principles.
[58] The mandatory provision in s 5(a) that a child’s safety must be protected is not relevant in this case, nor was it argued to be by Ms Houghton or counsel for the appellant. Counsel for the respondent argues that the Judge gave s 5(a) “decisive weight”, presumably referring to the reference to Dr Smith saying there were risks to Isaac’s development. I disagree. “Safety” in s 5(a) goes beyond physical safety but does not extend to the factors the Judge relied on, nor do I consider the Judge was
relying on s 5(a). Had she been, she would have said so.
10 Bashir v Kacem, above n 9, at [54].
[59] Section 5(b) is not relevant as the parents do have primary responsibility for Isaac’s care and have not been able to agree to their own arrangements. I note in this context that I entirely agree with the Judge’s view that it would be by far preferable if the parties could agree to an ongoing shared care arrangement, just as they have in fact done (despite all of the issues) for some years now. Dr Smith’s report also says that restricting Isaac’s relationship with either parent would constitute a significant loss for Isaac. To some degree I consider these concerns should be factored into the order made so that each party is as involved as possible, despite their contentions that the other parent should only have care of Isaac every second weekend.
[60] The Judge found that neither party would facilitate ongoing consultation and co-operation with the other and I have no reason to differ from that, so s 5(c) has little, if any, relevance.
[61] In terms of s 5(d), disruption in continuity in arrangements for Isaac’s care, development and upbringing is implicit in the change that each of the parties seeks, from shared to primary care. However, the break in continuity is much greater if Isaac shifts to Karaka, given he has always attended the same school and lived in the same community on the North Shore (bar the recent eight week post-judgment period up to Christmas). The psychologist reported that he has “good mates” and is happy. The Judge did not make reference to that lack of continuity. Further, there can be little doubt that, unless required to move for Isaac’s sake, Ms Brown will remain in the North Shore area. Mr Wilson moved to Karaka, primarily it seems to me, for the sake of himself and his wife. There is not strong evidence that he will actually seek or obtain work there, particularly given that he has worked for the family company in Glenfield for about 14 years. As I have said, Mr Wilson apparently did not refer to a possible change of employment until at the Family Court hearing itself. I cannot place any evidential value on the letter he now exhibits from his mother which says that he has told her he intends to look for work in South Auckland. While they owned a house on the North Shore, it seems that Mr Wilson and his wife are not able to afford a house in Karaka. In these circumstances, it would seem to me there is a realistic possibility of a further move for Isaac, depending on what Mr Wilson and his wife consider best for themselves
and their family. The judgment, on the other hand, proceeds on an assumption that
Mr Wilson will be employed in the South Auckland area.
[62] I note that Dr Smith also emphasised the importance of continuity in Isaac’s
life, without analysis of that, which was not required of her.
[63] In terms of s 5(e), there is no question but that Isaac will continue to have a relationship with both parents. Dr Smith expressed the view that primary care with Ms Brown would have detrimental effects on Isaac’s relationship with both parents, particularly Ms Brown. She more frequently stressed that primary care to either party would be detrimental to Isaac. I consider the former proposition to be sophistry. Nothing could be more detrimental to Isaac’s relationship with his mother than the orders that have been made. The Family Court Judge obviously considered
the orders made would “be at a cost to [Isaac’s] relationship with his mother.”11 In
fact, in questioning Dr Smith, the Judge said that if she placed Isaac primarily in the care of his father, she thought that would be at enormous cost to the relationship with his mother and vice versa. I proceed on that basis, so that s 5(e) insofar as it relates to preserving parental relationships is unhelpful in determining who has primary care. However, I do not consider that “primary care” needs to be to the extent envisaged by Dr Smith, or ordered by the Judge. Wider contact, in my view, will better preserve both parental relationships.
[64] With ongoing reference to s 5(e), the parties’ wider family have been significantly involved in Isaac’s life and they are based on the North Shore. I note the emphasis the Judge places on Isaac’s relationship with Indie. That relationship must, of course, be preserved but this can be achieved without affecting who has primary care, providing contact arrangements are not restrictive. It is easier to preserve a relationship with a child living in one parent’s household, than with grandparents living at a distance. Further, Isaac will have another half-sibling in his mother’s household soon, which development post-dates the Family Court judgment. That sibling will be younger than Indie so it will take time for Isaac to bond with them. However, I note that Indie was only 18 months old at the time of Dr Smith’s
report. I note also Dr Smith’s evidence that Isaac’s relationship with Indie must not
11 At [25].
take priority over his relationship with Ms Brown. In my view, that goes without saying.
[65] The principle contained in s 5(f) is neutral. Isaac’s identity (cultural and otherwise) will not be affected, whichever parent he is with.
[66] The list of factors in s 5 is not exhaustive. The court must also take into account any other factors it considers relevant to a child’s welfare and best interests:12
What s 5 does, then, is provide a structure or framework for consideration of what best serves a child’s welfare and best interests, with a partial indication of weighting as between principles. While the principles are not exhaustive, s 5 should assist in achieving some degree of consistency and transparency in decision-making, as well as promoting informed decision-making. But that cannot disguise the fact that the assessment is an evaluative one, involving the identification and weighing of all factors (whether referred to in s 5 or not) relevant to the particular case. These include, of course, the views of the affected child.
[67] In this regard, Dr Smith’s views as to the respective parenting abilities of the parties, and the effect of those abilities (or lack thereof) on Isaac are relevant. I should add that I do not consider Dr Smith’s view as to who could best meet Isaac’s needs is relevant or appropriate, as I think Dr Smith herself indicated, although she was pressed to answer that question by the Judge. Such a question is too close to the issue that is for the Judge to determine. I accept, though, it is clearly relevant that Dr Smith thought Mr Wilson would better promote independence, ability to self- regulate and stability on Isaac’s part, going into the future. It is also relevant that Dr Smith thought there was a risk that Isaac would become angry at the parent who was the primary carer, particularly if it were Ms Brown because of the loss of relationship with the other parent. There were two reasons Dr Smith thought Isaac might particularly become angry at Ms Brown. These were that Ms Brown reported Isaac already becoming angry and hitting her, while Mr Wilson had not reported such events and secondly that Isaac might struggle in terms of understanding any change in his relationship with Indie. I do not see a need for a change in relationship
with Indie.
12 Bashir v Kacem, above n 9, at [52]. This passage was broadly endorsed by the Supreme Court, subject to the comment about weighting of the s 5 principles, which is not relevant here.
[68] I have carefully read all of Dr Smith’s evidence. It needs to be viewed as a whole. Dr Smith is not so much talking of developmental “risks”. She certainly considered in some respects Isaac would develop better in Mr Wilson’s primary care. However, she followed that up immediately by expressing her concern in terms of Isaac’s needs in his father’s care with role modelling of a rigid kind of approach to life and of avoidance and she agreed with the Judge that actually a balance of both parents in Isaac’s life would be best. Dr Smith stressed there were risks on both sides. Importantly, her view of Ms Brown’s parenting deficiencies was based not on observation but on Ms Brown’s self-reporting. Dr Smith expressed real concern that may have been overstated as it was not otherwise apparent to her. Ms Brown is now having the counselling that Dr Smith signalled she should. Even before that, at the hearing itself, Ms Brown’s evidence was that she had followed Dr Smith’s advice and altered her parenting style. She said Isaac’s behaviour with her was much improved. Given the “data” on which Dr Smith relied was heavily based on what Ms Brown said, so Ms Brown’s evidence in court must also be taken at face value. I also consider Mr Wilson’s part in undermining Ms Brown’s relationship with Isaac should be borne more closely in mind than in the Judge’s assessment. That behaviour does not simply impact on the relationship between the parents, but goes also to Isaac’s welfare and best interests.
[69] In terms of an overall assessment, the principles contained in s 5 favour Ms Brown’s having primary care of Isaac, particularly because there is clearly more continuity with the past in his remaining in the North Shore area and attending CP School, and likely more continuity for the future given the lack of history or firm ties to Karaka on the part of Mr Wilson. I also consider Isaac’s relationships with the wider family will be better preserved in an overall sense if he is in Ms Brown’s primary care.
[70] While the additional factors to which I have referred, in terms of Dr Smith’s concerns, are clearly relevant, I do not consider they outweigh my overall assessment of the s 5 principles.
[71] I do not consider the Judge failed to apply, or to properly apply s 6. She
expressly considered Isaac’s wishes and declined to minimise those, despite
Dr Smith’s suggestion it might be appropriate to do so. Isaac’s wishes were that the status quo prevail and, in particular, that there be an arrangement that is fair to both of his parents. The status quo would involve Isaac’s living on the North Shore and attending CP School, although I do note that he had expressed excitement several times to lawyer for the child at the prospect of attending HP School. In all the circumstances, I do not consider that Isaac’s views take the matter any further.
[72] In the circumstances, I consider it is in the best interests of Isaac that Ms Brown has primary care. I consider the Judge erred in not properly applying s 5 and in being too influenced by parts of the psychologist’s evidence. This is not a case where the Judge has made credibility findings, other than to be critical of both parties, more particularly the respondent. Her assessment was otherwise based on her extracts from the psychologist’s evidence. I might add the Judge obviously found the decision difficult and there have been, as is often the case, some material developments since the Family Court judgment.
Contact and ancillary orders
[73] I made very clear at the hearing, I do not consider in circumstances such as this, or for that matter in the great run of these cases, that the care arrangements need to be as restrictive as the Judge ordered with regard to Ms Brown and that I now order with regard to Mr Wilson. It is not necessary or in Isaac’s best interests for the non-primary caregiver to be disempowered from having direct or indirect contact with him for 12 out of every 14 days, other than a phone call once a week. Ms Holbrook quite properly pointed out that this was not even what Mr Wilson proposed, should he be the primary carer, though he did argue for very separate parenting. His evidence was that he would agree to Ms Brown attending sporting and other events while Isaac was in his care.
[74] Unless there are very good reasons otherwise, both parents must be able to attend relevant sporting, school, and similar engagements. This is clearly in Isaac’s best interests. It seems that with all of the talk about conflict between the parents, the Judge became overly concerned to completely separate them. The Judge probably thought the parties could not co-exist at events but, in fact, I was advised
by counsel there was only one incident where there had been a problem in such a context. It seems to have been relatively minor and, importantly, Isaac was not present.
[75] I also consider, in circumstances where both parties are good loving parents, that the non-primary caregiver, now Mr Wilson, should have more time than the Judge allowed. I understand the Judge was probably responding to the parties’ mutual position that contact only be every second weekend and the psychologist’s consequential recommendation that there not just be tinkering with the equal sharing arrangement. However, I consider, as in fact Isaac, the Judge and Dr Smith do, it is in Isaac’s best interests for him to spend as much time as possible in the care of each of his parents, but on terms that reduce the negative effect of constant change between them. The 5:2:2:5 arrangement that operated until the Family Court judgment made for constant change. I realise my approach to some degree ignores the parents’ applications, but the case is about what is best for Isaac.
[76] Ms Brown proposes that Isaac be in Mr Wilson’s care from Thursday after school until school on Monday, every second weekend. In my view, that should be the case for two out of every three weekends which, treating each of the “weekend” periods as four days, has the effect of an 8:13 split over each three week period.
[77] My decision and orders are set out in the attached Results Judgment dated
5 February 2016.
[78] I ask that Ms Houghton file the memorandum I referred to in the Results Judgment within seven days. That will include protocols around changeovers and medical attendances as well as the other matters referred to in my Results Judgment, in Dr Smith’s report and in the Parenting Plan she kindly produced. I again commend to both parties real care in following the detail of Dr Smith’s report and of Dr Smith’s evidence in totality.
[79] The judgments have to be anonymised. I ask that Ms Houghton advise within seven days, as to appropriate names, the Supreme Court having indicated that initials are to be avoided.
[80] Finally, there has not been time for me to set out counsel’s submissions. I do wish to record, as I said at the hearing, that all of the written and oral submissions in this case were of a very high standard. I am particularly indebted to Ms Houghton as
lawyer for the child. It is not an easy job.
Hinton J
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