Burnett v Burnett
[2017] NZHC 417
•13 March 2017
ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF PARTIES. ORDER PROHIBITING SEARCH, COPYING OR INSPECTION OF THE COURT FILES IN RESPECT OF WHICH THIS JUDGMENT HAS BEEN GIVEN WITHOUT LEAVE OF A JUDGE ON AN APPLICATION MADE ON NOTICE TO ALL PARTIES. THIS IS AN ANONYMISED VERSION OF A JUDGMENT AND MAY BE PUBLISHED IN THIS FORM.
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
CIV 2016-470-185 [2017] NZHC 417
BETWEEN BURNETT
Appellant
AND
BURNETT Respondent
Hearing: 3 February 2017 Counsel:
S Jefferson QC and K Lellman for Appellant
R Paul for Respondent
D Blair, Lawyer for the ChildrenJudgment:
13 March 2017
JUDGMENT OF HEATH J
This judgment was delivered by me on 13 March 2017 at 4.00pm pursuant to
Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar
Solicitors:
Hollister-Jones Lellman, Tauranga
Counsel:
S Jefferson QC, Auckland
R Paul, TaurangaD Blair, Tauranga
BURNETT v BURNETT [2017] NZHC 417 [13 March 2017]
CONTENTS
The appeal [1] Background [5] The Family Court judgments
(a) The 30 June 2015 judgment [10]
(b) The 21 October 2016 judgment [19] Submissions on appeal [33] Analysis
(a) The statutory scheme [45]
(b) Appellate review [50]
(c) The central issue: “risk of alienation”
(i) The Judge’s findings on “risk of alienation” [52]
(ii) Were the Judge’s findings justified? [57]
(d) Should different parenting orders be made?
(i) Introductory comments [71] (ii) The “best interests” inquiry – relevant factors [73] (iii) The location issue [75] (iv) The sibling relationship issue [81] (v) The risk of alienation issue [86] (vi) Conclusion [88]
Result [94] The appeal
[1] Mr and Ms Burnett have two children, Alice and Mary. In a judgment given on 21 October 2016,1 in the Family Court at [redacted], Judge Munro made final parenting orders resolving day-to-day care and contact arrangements in respect of the two children. At the time the orders were made, Alice was aged five years and Mary was one year old.2 The substantive orders against which the appeal is brought were made against the background of interim orders, made by the same Judge, on 30 June
2015.3
[2] The appeal arises in (regrettably) familiar circumstances. As a result of irreconcilable differences, Mr and Ms Burnett separated. Both are good parents. Each believes genuinely that the children would be better off in his or her care. To the extent that one has criticised the other, there is room for the charitable view that
they have done so (with the best of intentions) to promote their own desires to have
1 [citation redacted].
2 A summary of the orders made by Judge Munro is set out at para [30] below.
3 [citation redacted].
day-to-day care of the children. I do not consider, any element of spite exists;
although that may not always have been the case.
[3] The problem is that, owing to their personal circumstances, Mr and Ms Burnett are unable to live in sufficiently close proximity to each other to share care of the children. All things being equal, shared day-to-day care would have been the best outcome for all concerned, particularly the children.
[4] In the judgment under appeal, Judge Munro expressed her decision on alternate bases:
(a) The first postulated Mr and Ms Burnett living in sufficiently close proximity to enable the girls to attend the same school or kindergarten, in which case there was to be shared day-to-day care.
(b)The alternative, which has come to pass, has Alice in the day-to-day care of her father, with Mary being in the shared care of the parents on a cyclical basis until she commences school, at which time her care arrangements will be the same as for Alice.
Background
[5] Mr and Ms Burnett began to live together in 2008, in [redacted]. Initially, Mr Burnett worked in Auckland. He commuted to and from [redacted] to be with Ms Burnett at weekends. At the time the relationship began, Ms Burnett had primary care of a child from an earlier relationship, Peter. He was born on 4 December 2003, so was about four years old when Mr and Ms Burnett began to live together. Ms Burnett’s parents also live in [redacted], as does Mr Burnett’s mother.
[6] Mr and Ms Burnett separated briefly in 2010. They reconciled before Alice was born, on 10 April 2011. About two months later, Mr Burnett gained employment in [redacted]. The couple moved to that township. They purchased a section, on which they built a house. That was used as their family home.
[7] Mr and Ms Burnett married in September 2013. Unhappily, although Ms Burnett had fallen pregnant, she and Mr Burnett decided to separate for the final time less than one year later, in July 2014. Ms Burnett returned to [redacted], with Alice. Mary was born on 28 March 2015.
[8] Shortly after separation, on 24 July 2014, Ms Burnett filed an application in the Family Court in which she sought parenting orders in respect of Alice. At that time, Mary had not been born. By the time an interim application for care orders came before the Court for hearing on 5 May 2015, Mary was less than two months old. It was taken for granted that Mary would remain in the care of her mother for the foreseeable future.
[9] Mr Blair was appointed as lawyer for Alice for the initial hearings in the Family Court. His brief was extended to enable him to represent Mary at the hearing in August 2016, which led to the judgment under appeal. Mr Blair also accepted appointment as Lawyer for the Children on this appeal.
The Family Court judgments
(a) The 30 June 2015 judgment
[10] A hearing to determine interim care arrangements for Alice began on 5 May
2015. At that hearing, Ms Burnett sought day-to-day care of Alice, with weekend and holiday contact reserved to Mr Burnett. In response, Mr Burnett sought (in the alternative) a shared care arrangement if Ms Burnett were to return to [redacted], or day-to-day care of Alice if she did not.
[11] At a pre-hearing conference held on 23 April 2015, Judge Annis Somerville declined to make any direction about whether Alice (then aged four years) should meet with the Judge, preferring to leave that for the presiding Judge to determine. Judge Somerville also directed that a report was to be prepared by a registered
psychologist, Ms Lightfoot.4 Ms Lightfoot’s report was available at the May 2015
4 Under s 133 of the Care of Children Act 2004.
hearing. As directed by Judge Somerville, she attended the second day of the hearing.
[12] At the hearing in May 2015, the Judge was also asked to determine a separate application brought by Mr Burnett for permission to take Alice on holiday with him to [redacted] in mid-May 2015. That application had been signalled some time before, and was the subject of a direction from Judge Somerville that it be addressed at the interim parenting order hearing. On the third day of that hearing, before closing submissions on the parenting applications were made, Judge Munro granted
that application.5
[13] Judge Munro reserved her decision on the parenting applications. She gave judgment in writing on 30 June 2015, on terms that were to enure pending further order of the Family Court.6
[14] Judge Munro observed that the proceeding had begun in July 2014, as a “relocation case”. Had it been dealt with on an interim basis at that time, the principles set out in Fletcher v McMillan7 would have applied, so that the emphasis would be on “maintenance of the status quo”.8 The Judge expressed the view that had that test been applied “[t]he likely outcome … would have been a return to [redacted] whilst substantive issues were considered”.9 But, as she observed, “10 months on, a new status quo [had] been established” involving Alice living in [redacted] with her mother, siblings and maternal family, with a contact regime in place.10 For those reasons, the Judge approached the question of day-to-day care and contact by reference to principles set out in ss 4 and 5 of the Care of Children Act
2004 (the Act).11
[15] I have highlighted the Judge’s approach to the parenting applications because
of the nature of the orders that she ultimately made. It is clear that Judge Munro harboured concerns that Ms Burnett may try to alienate the children from their
5 [citation redacted].
6 [citation redacted].
7 Fletcher v McMillan [1996] NZFLR 302 (HC).
8 [citation redacted].
9 [citation redacted].
10 [citation redacted].
11 Sections 4 and 5 of the Care of Children Act 2004 are set out at para [45] below.
father. That view was based, primarily, on psychological evidence given by Ms
Lightfoot. In making the interim orders, Judge Munro stated:12
[31] … Ms Lightfoot has cautioned that if Alice were to remain living in [redacted], it will be extremely important for Ms Burnett to accept that she will “absolutely need to support and encourage Alice’s relationship with her father”. A failure by Ms Burnett and her family to provide that support and encouragement would almost certainly cause serious concern at the risk of parental alienation when the matter comes back before the Court for final orders to be made. Unfortunately in this case there is no clear option that will meet all of Alice’s needs as identified.
[16] The interim shared care orders were complex. They were summarised concisely in written submissions filed in advance of the appeal by Mr Jefferson QC, for Ms Burnett. The order provided for care to be shared on a “three weekly cycle”. It involved Alice being:13
(a) In the care of Mr Burnett in week 1, based at the home of his mother in [redacted] from after kindergarten (now school) on Wednesday until 5:00pm Sunday (four nights);
(b) In the care of Mr Burnett in week 2 from Wednesday to Sunday in
[redacted] or [redacted] (four nights); and
(c) In the care of her mother in week 3 in [redacted]. (d) School holidays were to be shared equally.
As a result, Alice was to be in the primary care of Ms Burnett for 13 out of 21 nights, over each period of three weeks.
[17] Judge Munro also made directions for contact arrangements over the Christmas holidays. They involved regular contact, by both telephone and Skype. The Judge intended that, at some time in the future, Mary would be included in those
arrangements.
12 [citation redacted].
13 [citation redacted].
[18] The Family Court Judge referred the parties to “specialist communication counselling” for six sessions. The purpose of this order was to assist both parents to work together more effectively, for the benefit of their children. The Judge concluded by saying:14
[33] The interim order is to be reviewed following the Christmas school holidays by way of settlement conference which is to be allocated in February 2016, date to be advised by the Registrar.
[34] If, during the term of this interim order, the parties commence living in the same town, they shall share equally in the care of Alice, and Mr Blair is authorised to convene a roundtable meeting to negotiate a consent memorandum to that effect.
(b) The 21 October 2016 judgment
[19] It is unclear precisely how Judge Munro intended that the “interim order” be “reviewed” at a settlement conference in February 2016.15 As it happened, seemingly due to some form of miscommunication between the Registrar and the parties, a settlement conference did not proceed at that time. Instead, the parties, their counsel and Lawyer for Alice joined in a telephone conference on 26 February
2016, to discuss settlement. In a memorandum to the Family Court dated 23 March
2016, counsel made it clear that the proceedings could not be resolved by consent. Ms Burnett wished to retain care of Alice in [redacted], while Mr Burnett wanted her to live with him in [redacted]. Mr Burnett was content for shared care to be ordered, if Ms Burnett moved back to [redacted]. There is no mention in counsel’s memorandum of care arrangements for Mary, which appear (at least at that stage) not to have been in issue. By the time this memorandum was filed, Mary was less than one year old.
[20] A further hearing was scheduled for 24 August 2016. Counsel requested the Family Court to direct an updated psychological report in respect of Alice. Some suggestion was made that Mary be “added to” the proceeding, and that the brief for a further report from Ms Lightfoot extend to arrangements for her care. In particular, counsel were mindful of the need to consider Mary’s sibling relationship with Alice,
the psychological importance of maintaining that bond, and Mary’s “relationships
14 [citation redacted].
15 [citation redacted], set out at para [17] above.
and attachments with her parents and any other people of importance to her”. One of those “other people” was Ms Burnett’s son, Peter. He has continued to live with his mother in [redacted].
[21] A pre-hearing conference took place before Judge Coyle on 24 March 2016. The Judge’s directions had an impact on the nature and extent of evidence available to Judge Munro at the August 2016 hearing. After hearing from counsel, Judge Coyle extended the ambit of the care inquiry, to include Mary. He said:16
[12] Against that background:
…
(b) By consent the parties’ child Mary …, is to be joined to these proceedings as a child subject to the proceedings. …. That is, the proceedings are to relate to Mary as well. That is on the basis that Mr Burnett in effect is seeking a parenting order that both Mary and Alice are in his care and Ms Burnett is seeking orders that Alice and Mary are in her care.
…
[22] Judge Coyle was asked to make directions about the form of evidence to be provided by Ms Lightfoot at the August 2016 hearing. The Judge was aware that the “content of Ms Lightfoot’s report clearly influenced Judge Munro, who made orders following an interim hearing” in May 2015.17
[23] With regard to the need to obtain an updating report, Judge Coyle was placed in an unenviable situation. On 24 March 2016, only six months before the substantive hearing, the Judge was faced with:
(a) Practical difficulties, arising from Ms Lightfoot’s inability to meet with the children and the families and to prepare a report until June or
July 2016;
16 [citation redacted]. While Mr Jefferson questioned the jurisdiction for this order, I do not consider it is appropriate to revisit it at this stage of the proceeding. No appeal was brought against it.
17 [citation redacted].
(b) A likely delay until 2017, if the proceeding were not heard in August
2016; and
(c) A need for finality in the care arrangements because Alice was due to start school at the end of 2016.
[24] The question whether an updating report should be obtained from Ms Lightfoot fell to be considered by reference to s 133(5), (6) and (7) of the Act. Those provisions state:
133. Reports from other persons
…
(5) To obtain a written psychological report,—
(a) the court may—
(i) request a psychologist whom the court considers qualified for the purpose to prepare one; or
(ii) direct the Registrar to request a psychologist whom the Registrar considers qualified for the purpose to prepare one; and
(b) the court—
(i) must specify which of the matters listed in paragraphs (a) to (f) of the definition of psychological report in subsection (1) that the report is to cover; and
(ii) may specify any matter not listed in paragraphs (a) to (f) of the definition of psychological report in subsection (1) that the report is to cover.
(6) The court may act under subsection (5) only if—
(a) the court is satisfied that the information that the psychological report will provide is essential for the proper disposition of the application; and
(b) the court is satisfied that the psychological report is the best source of the information, having regard to the quality, timeliness, and cost of other sources; and
(c) the court is satisfied that the proceedings will not be unduly delayed by the time taken to prepare the psychological report; and
(d) the court is satisfied that any delay in the proceedings will not have an unacceptable effect on the child; and
(e) the court does not seek the psychological report solely or
primarily to ascertain the child’s wishes.
(7) If the court is entitled by subsection (6) to act under subsection (5) and if the court knows the parties’ wishes about the obtaining of a psychological report or can speedily ascertain them, the court must have regard to the parties’ wishes before deciding whether or not to act under subsection (5).
….
[25] Having outlined, in general terms, the nature of the problems with which he was faced, Judge Coyle continued:18
[9] In any decisions I make, including administrative decision[s], pursuant to s 4 of the Act my focus has to be on the best interests and welfare of Alice. That section together with s 133(6) precludes me from directing an up to date report, as I have a clear view that the delays that would be caused are unacceptable from Alice’s perspective. Whilst the issues identified by counsel in the brief are likely to be of assistance to the Court, the issue of delay is such that I cannot determine that the obtaining of a report is essential and necessary. The factors in 133(6) are cumulative in that the Court must be satisfied of each and every of the various factors listed and, if it is not, then it must not order a report.
[10] Because of the issue of delay I decline to direct an updated s 133 report. That will probably necessitate Ms Lightfoot giving oral evidence, if she wishes to do so, in light of the new evidence that is to be filed by the parties and whether that affects her earlier opinions or not.
(Emphasis added)
[26] Judge Coyle’s direction not to order a further report from Ms Lightfoot was based on delays that he considered were “unacceptable from Alice’s perspective”. Practical problems that arose in relation to the assessment of care arrangements for Mary were an unintended consequence of his decision. Although Judge Munro was required to consider Alice’s and Mary’s situations discretely, she did not have the benefit of any expert evidence about Mary’s psychological needs. Ms Lightfoot had never met Mary. In addition, she had never had an opportunity to observe Mary’s interactions with members of her family, whether in [redacted] or [redacted]. Accordingly, she was not in a position to express any reliable expert opinion on this
issue.
18 [citation redacted].
[27] Judge Munro heard evidence on the basis anticipated in the case management directions. The hearing took place over two days, on 23 and 24 August 2016. On the first day, Ms Burnett, Mr Burnett and Ms Jeanette Bridge (Ms Burnett’s mother) gave evidence. Each was cross-examined on affidavits filed in advance of the hearing. On the second day, Ms Dawn Bridge (Ms Burnett’s sister) and Mrs Russell (Mr Burnett’s mother) were also cross-examined on their affidavit evidence.
[28] Ms Lightfoot attended at Court and was present when both Ms Burnett and Mr Burnett gave evidence. Overnight, she prepared a document headed “Oral Evidence”. That formed the basis of her evidence in chief. Ms Lightfoot was questioned by counsel for both Mr and Ms Burnett, as well as by Mr Blair.
[29] Judgment was delivered on 21 October 2016. The orders that were directed to care arrangements in the latter part of 2016 are now spent. The orders in issue on this appeal relate to what the Judge ruled in respect of the period starting with the beginning of the 2017 school year.
[30] As indicated earlier, Judge Munro’s decision was premised on alternative situations.19 The discrete orders made in respect of Alice and Mary respectively were:20
[33] Accordingly, I make the following orders:
…
(c) From the beginning of the school year 2017, the following provisions will apply;
(i) If the parties are then living in close enough proximity for the girls to attend the same school or kindergarten, the parents will share the care of the children on a week about basis, with changeovers at 5pm Friday or as otherwise agreed;
(ii) If the parents are not living in close enough proximity for equal shared care, the following provisions will apply;
19 See para [4] above.
20 [citation redacted] (bold text present in original). This extract from the judgment omits the orders that were to apply before February 2017.
Alice
(a) Alice will live in the day-to-day care of Mr Burnett in [redacted], from the beginning of the school year 2017. Contact with Ms Burnett will be on a three weekly cycle as follows:
(i) Week one from 5pm Wednesday to 5pm Sunday in [redacted], with Alice continuing to attend school and any other extracurricular activities in [redacted] while in Ms Burnett’s care.
(ii) Week two in [redacted] from Friday to Sunday, changeovers at 5pm in [redacted];
(iii) Week three no face to face contact.
Mary
(b) Mary will be in the shared care of Mr and Ms Burnett as follows:
(i) Week one with Mr Burnett until 5pm Wednesday, and with Ms Burnett from 5pm Wednesday to 5pm Sunday in [redacted].
(ii) In week two Mary will remain in the care of Ms Burnett, travelling to [redacted] with her on Sunday of week one, until returning to the care of Mr Burnett on Sunday of week two, with the changeover at 5pm in [redacted], together with Alice.
(iii) In week three Mary will remain in the care of Mr Burnett.
(c) When Mary begins school, she will have the same care provision as
Alice.
….
[31] In ancillary orders, Judge Munro directed:21
(d) Other contact, or variations to those provisions shall be by mutual agreement.
(e) Phone / Skype contact to take place between the children and their non care parent on alternate days or as agreed.
(f) Christmas:
In the absence of agreement to the contrary, the children will be in the care of Ms Burnett on Christmas Day in even numbered years and Mr Burnett in odd numbered years. The alternating weekly care of the children during the Christmas holidays will be arranged to include these Christmas Day provisions.
21 [citation redacted].
(f) The parties will keep a communication book for each child which will travel with the children to keep each other informed of any matters relevant to the children.
(g) The parties will fully consult on all guardianship issues.
[32] Sensibly, before the appeal was heard on 3 February 2017, the parties agreed to suspend operation of the parenting orders made by Judge Munro pending determination of this appeal. The parties agreed that any changes to the status quo will be effected at the start of the second term of the 2017 school year. On that basis, I was able to reserve judgment to give counsel’s submissions mature consideration.
Submissions on appeal
[33] Mr Jefferson submitted that the Judge erred in her assessment of the evidence, in placing Alice in the day-to-day care of Mr Burnett, in [redacted]. He contended that the Family Court Judge had failed to apply relevant parts of ss 4 and
5 of the Act22 because the orders did not promote the welfare and best interests of the
children.
[34] Mr Jefferson’s second point raised a question about the role of a child psychologist when giving assistance to the Family Court in a dispute between guardians or parents. He relied on a decision of a Full Court of this Court, in K v K.23
[35] Mr Jefferson was critical of the process followed at the August 2016 hearing. In particular, he submitted that Ms Lightfoot’s evidence ought to have been treated with some caution because:
(a) She had not had an opportunity to meet with Mr or Ms Burnett in the domestic environment of each, with the children present. That meant she was unable to express any opinions about changes in the various relationships since the first hearing in May 2015, some 15 months
earlier.
22 Set out at para [45] below.
23 K v K [2005] NZFLR 28 (HC) (Heath and Venning JJ).
(b)Ms Lightfoot was unable to speak directly to members of the families of both Mr and Ms Burnett, in particular their respective mothers. Nor was she able to observe Alice’s interactions with both Peter and Mary, particularly in [redacted].
(c) She had never met Mary. As a result, she had no factual foundations on which she could express opinions about what promoted her best interests and welfare.
[36] Those concerns were highlighted by the way in which Ms Lightfoot did in fact give evidence at the hearing. She was reliant upon affidavits that she had read, and her impressions of evidence given orally by both Mr and Ms Burnett.
[37] Mr Jefferson submitted that, while a Judge is entitled to rely on expert evidence in forming a judgment on where the best interests of a child lie, it is not acceptable for the decision-making to be (in effect) delegated to the report writer in a de facto sense. Mr Jefferson contended that the Judge’s fact-finding was unduly influenced by opinions expressed by Ms Lightfoot that she was not in a position to justify.
[38] For Mr Burnett, Ms Paul contended that there was ample evidence to support the Judge’s conclusion that her parenting orders were appropriate. Ms Paul submitted that, having regard to the factors that the Court must take into account in determining where the welfare and best interests of a child lie,24 the decision reached by the Judge was not one from which this Court should depart on appeal.
[39] Recognising the need to identify some reason why the Judge was prepared to change existing care arrangements, Ms Paul focussed on the risk of parental alienation. In particular, she referred to evidence elicited from Ms Lightfoot, at the
2016 hearing.
24 Care of Children Act 2004, ss 4 and 5.
[40] Ms Paul drew attention to “quite a few of the key characteristics of a setting for parental alienation”, on the part of Ms Burnett that she submitted Ms Lightfoot had highlighted in her oral evidence:
(a) There was an “overwhelming extended family negativity towards”
Mr Burnett;
(b) There was a lack of communication between Ms Burnett and Mr
Burnett;
(c) There was an air of “negativity” demonstrated by Ms Burnett towards
Mr Burnett; and
(d)The ages of the children meant they were particularly vulnerable to influence from their mother.
[41] Ms Paul relied upon an “incident” on 7 August 2015. Ms Burnett had notified Child, Youth and Family Services of a concern about Mr Burnett, based on information she had received from the kindergarten that Alice was attending. Those responsible for running the kindergarten had not considered the claims sufficient to notify the authorities. No action was taken after an investigation by a social worker.
[42] When giving evidence at the August 2016 hearing, Ms Burnett confirmed that she was not calling the social worker who had investigated the issue, and was not challenging her view of events. Nor was she raising, at that stage, any concerns about the children being in the care of their father. Ms Burnett accepted that she had not told Mr Burnett that Child, Youth and Family Services had been “notified”. Nor did she tell him that both she and Alice had been interviewed by a social worker, or the outcome of her investigation.
[43] Ms Paul contended that no prejudice was caused by the absence of any updated psychological report, or the way in which Ms Lightfoot gave her evidence at the hearing.
[44] Mr Blair, on behalf of both children, submitted that Ms Burnett’s appeal should be allowed. Mr Blair made an affirmative submission that the parenting orders of the Family Court “were not in [the] best interests [of both Alice and Mary] and were not child focussed”. In particular, he submitted that the Family Court Judge was wrong to decide that the risk of alienation that she had identified in 2015 was, by 2016, becoming a reality. In that situation, Mr Blair submitted that no change to the pre-existing parenting arrangements could be justified.
Analysis
(a) The statutory regime
[45] Applications for parenting orders must be determined by reference to ss 4 and
5 of the Act. They 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
(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.
(4) This section does not—
(a) limit section 6 or 83, or subpart 4 of Part 2; or
(b) prevent any person from taking into account other matters
relevant to the child’s welfare and best interests.
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.
[46] The paramount consideration is the “welfare and best interests of a child”.25
When the Family Court considers applications for parenting orders in respect of siblings, care must be taken to ensure that each child’s unique situation is respected and considered. While the very nature of a sibling relationship is such that it is generally regarded as desirable that they live together, there will be cases in which the needs of each require a different outcome.
[47] In the present case, Judge Munro recognised the need to distinguish between Alice’s and Mary’s individual circumstances. On the alternative premise that Mr and Ms Burnett did not live in sufficient proximity to enable both to attend the same school, Alice must move to live with her father immediately and attend school in
[redacted]. On the other hand, Mary remains with her mother until such time as she
25 Care of Children Act 2004, s 4(1).
starts to attend school. On the assumption that Judge Munro’s orders were to remain in place, Mary will not attain school age until 28 March 2020. In the meantime, she is to be in the shared care of Mr and Ms Burnett.26
[48] So-called “relocation” cases present particular difficulties.27 Often, there will be no right answer. The duty of the Family Court Judge is to weigh relevant considerations, including all mandatory factors to which s 5 of the Act refers.28 Care must be taken, in making that assessment, to ensure the focus on the inquiry reains on the “welfare and best interests of” the particular child.29 Judges must bear in mind that while the s 5 criteria must be taken into account, other factors may assume importance in a particular case.
[49] Family Court Judges have at times considered finely balanced cases by reference to the least detrimental outcome for a child. While it is easy to elide the two ideas, s 4(1) of the Act, by which the “welfare and best interests of the child” is stated to be the “first and paramount consideration”, recognises that the focus must be on the former rather than the latter.30 A proper focus on that paramount consideration requires a Judge to identify factors that justify his or her orders as being in the best interests of a child.
(b) Appellate review
[50] Judge Munro’s decision to make particular parenting orders was evaluative in nature. On her appeal to this Court, Ms Burnett must persuade me that Judge Munro was wrong. Even though the Family Court is usually regarded as a specialist tribunal, beyond the “customary” caution appropriate when a first instance Judge has had the advantage of seeing and hearing witnesses give evidence, no “deference” to
the decision-maker is required.31 I do not consider that this is a case in which the
26 See para [30] above.
27 For example, see Pauline Tapp and Nicola Taylor “Relocation: A Problem or a Dilemma?”
(2008) 6 NZFLJ 94.
28 Care of Children Act 2004, ss 4(2)(a) and (5), set out at para [44] above.
29 Ibid, s 4(1).
30 Ibid, s 4(1), set out at para [45] above. In an extreme case, in which each parent was viewing the proceeding from the perspective of the best interest of themselves, the need to distinguish the nature of the inquiry becomes more acute: generally, see Carpenter v Armstrong HC Tauranga CIV-2009-470-511, 31 July 2009 at paras [124]–[126].
31 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at para
Family Court Judge had any particular advantage from seeing and hearing Ms
Burnett and Mr Burnett give evidence. No material credibility issues arise.
[51] As the Supreme Court made clear in Austin Nichols & Co Inc v Stichting
Lodestar:32
[13] … The appeal court must be persuaded that the decision is wrong, but in reaching that view no “deference” is required beyond the “customary” caution appropriate when seeing the witnesses provides an advantage because credibility is important. Such caution when facts found by the trial judge turn on issues of credibility is illustrated by Rae v International Insurance Brokers (Nelson Marlborough) Ltd and Rangatira Ltd v Commissioner of Inland Revenue.
…
[16] Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion is an assessment of fact and degree and entails a value judgment. If the appellate court’s opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ. In such circumstances it is an error for the High Court to defer to the lower Court’s assessment of the acceptability and weight to be accorded to the evidence, rather than forming its own opinion.
(footnotes omitted)
(c) The central issue: “risk of alienation”
(i) The Judge’s findings
[52] By way of background, Judge Munro had sounded a very clear warning to Ms Burnett in her judgment of 30 June 2015 that she must accept both the desirability and need for Mr Burnett to play an important role in Alice’s care. The possibility of the Court putting considerable weight on the risk of parental alienation when determining final parenting orders was signalled, in plain terms.33 This risk assessment was something to which much evidence was directed at the August 2016
hearing.
[13].
32 Ibid, at paras [13] and [16]. See also Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at para [32], in which the Supreme Court emphasised the distinction between appeals against evaluative judgments and those involving a challenge to the exercise of a discretion.
33 [citation redacted], set out at para [15] above.
[53] In her judgment of 21 October 2016, Judge Munro reassessed her earlier views about the ability (or otherwise) of Mr and Ms Burnett to communicate with each other in the upbringing of the two girls.34 In summary, she concluded that:
(a) While there had been material compliance with the interim orders, Mr and Ms Burnett “had not moved any closer together”;35
(b)While Mr and Ms Burnett had attended six sessions of specialist communication counselling, they had not improved their communication skills.36 The problems that haunted Mr and Ms Burnett’s ability to promote the best interests of the children continued to exist.
[54] Judge Munro acknowledged the limitations within which Ms Lightfoot had given evidence. Nevertheless, she expressly relied on Ms Lightfoot when addressing risk of parental alienation. The Judge said:
[16] … It is clear from the evidence of the parties and Ms Lightfoot, psychologist, that there is still negativity by Ms Burnett and her family towards Mr Burnett, although there may have been some softening of their stance. It is Ms Lightfoot’s opinion, that at the very least there is an attitude of indifference shown towards Mr Burnett. Ms Lightfoot’s evidence for the
2015 hearing was that with Alice remaining living with her mother in
[redacted], there was a risk of parent alienation towards Mr Burnett. She considered that that was a high risk and that:
“In time, perhaps when Alice is six or seven years old, she may resist contact with him, as a result of that alienation by both her mother and maternal family. That support by the maternal family for Mr Burnett’s role is a significant risk for Alice’s future relationship with her father”
[17] The evidence is that Alice is now resisting contact with her father. She dislikes the travel, which undoubtedly is a factor but even when contact is to take place in [redacted], she is expressing a resistance to going to spend time with her father. The warning sounded by Ms Lightfoot over a year ago is becoming a reality.
[55] After traversing other aspects of the evidence, Judge Munro concluded:37
34 [citation redacted].
35 [citation redacted].
36 [citation redacted].
37 [citation redacted]. Compare with the Judge’s observations in her 30 June 2015 judgment;
particularly at para [31], set out at para [15] above.
[31] Ms Lightfoot was clear in her evidence that there has to be a significant change, either in the care arrangements or in the parents’ attitudes to avert the risk of alienation. Ms Lightfoot regarded a change in the care arrangements as a last resort, but considered that Alice would in time cope with the change, given that she is a resilient child. Clearly, there would need to be a transition for Mary, who does not as yet have a significant attachment to her father.
[32] I have no confidence in the parents’ ability to change their views or communicate in a constructive manner. A warning was sounded following the hearing in 2015, but nothing has changed. A referral to counselling was directed to assist the parties to communicate effectively to enable them to make arrangements for the ongoing care of the children. Neither party gained any benefit from the counselling, and there was no evidence of attempts made by either to constructively address this issue. In my opinion, a change in the care arrangements is the only way in which the children’s welfare and best interests in terms of their relationship with both parents can be met. In my view, the increased opportunity for both children to strengthen and develop their relationship with their father outweighs the need for a continuation of the status quo in terms of their living arrangements. Whether Ms Burnett will move back to [redacted] to enable a shared care arrangement will be a matter for her. I express the hope that she will put her children’s needs ahead of her own in making that decision.
[56] The Family Court Judge made a number of factual findings that are relevant
to the “risk of alienation”. In summary:
(a) The position of Mr and Ms Burnett, and their respective attitudes to the continuing care of the two children had “not shifted since the 2015 hearing”. The Judge described this phenomenon as one in which each parent saw the issue “as a contest to be won or lost”. In contrast, the parents did not view the dispute as a way of determining how best they could conduct themselves to provide the best environment for
their children.38
(b)While there were “no safety issues in relation to either parent” and Alice had “a close and positive relationship with both parents”, Mary was still developing a relationship with her father.39
(c) The risk of alienation was an “overriding concern”. The Judge said:
38 [citation redacted].
39 [citation redacted].
[26] … From a psychological perspective, the risk of alignment or alienation is an overriding concern, as foreshadowed by Ms Lightfoot in 2015, and confirmed at this hearing.
(d)Ms Burnett did not actively promote Mr Burnett’s relationship with the children. There was no evidence to suggest that Ms Burnett regarded Mr Burnett as an important person in their lives. Referring to some of Ms Burnett’s evidence about “allowing” Mr Burnett to have contact with his children, the Judge commented that she “still
adopts a proprietary right in respect of the children”.40
(e) Ms Burnett’s “apparent need to live within” her own “family environment” outweighed recognition of the need for the children to have a positive relationship with Mr Burnett.41 The Judge said:
[28] … She appears unable to put her children’s needs above her own. I have little confidence, that if the children remain living with their mother in [redacted], the parents would be able to work together to enable the relationship with Mr Burnett to develop, particularly concerning Mary. Their inability to communicate increases the concern.
(ii) Were the Judge’s findings justified?
[57] No serious questions were raised about Ms Lightfoot’s qualifications to give expert evidence in the proceeding. The “risk of alienation” issue revolves around the quality of the opinion evidence offered. It is axiomatic that an expert’s evidence is only as good as the primary facts on which it is based. In order to assess the value of Ms Lightfoot’s evidence, it was necessary for the Judge to consider whether her underlying factual assumptions were justified.
[58] Although I am sympathetic to the position in which Ms Lightfoot found herself, the need for hurried preparation of an outline of the oral evidence she intended to give at the August 2016 hearing, raises serious concerns about the
reliability of her expert evidence. I emphasise that “expert” evidence is in issue.
40 [citation redacted].
41 [citation redacted].
Ms Lightfoot was unable to give any evidence of primary fact, in relation to events that had occurred since the 2015 judgment.
[59] The point that causes me the most concern is the absence of a considered factual foundation for the opinion evidence. The Code of Conduct for Expert Witnesses, by which Ms Lightfoot was bound to give her evidence, states:42
Evidence of expert witness
3. In any evidence given by an expert witness, the expert witness must—
(a) acknowledge that the expert witness has read this code of conduct and agrees to comply with it:
(b) state the expert witness’ qualifications as an expert:
(c) state the issues the evidence of the expert witness addresses and that the
evidence is within the expert’s area of expertise:
(d) state the facts and assumptions on which the opinions of the expert witness are based:
(e) state the reasons for the opinions given by the expert witness:
(f) specify any literature or other material used or relied on in support of the opinions expressed by the expert witness:
(g) describe any examinations, tests, or other investigations on which the expert witness has relied and identify, and give details of the qualifications of, any person who carried them out.
4. If an expert witness believes that his or her evidence or any part of it may be incomplete or inaccurate without some qualification, that qualification must be stated in his or her evidence.
5. If an expert witness believes that his or her opinion is not a concluded opinion because of insufficient research or data or for any other reason, this must be stated in his or her evidence.
(Emphasis added)
[60] Given the circumstances in which Ms Lightfoot gave evidence, it is hardly surprising that she was unable to articulate a proper factual foundation for her
opinions. To the limited extent that it might be possible to divine that foundation
42 High Court Rules, Schedule 4, applied by PN4, Family Court Practice Note Specialist Report Writers, cl 8.3. That Practice Note applies to evidence given by psychologists in the Family Court and was settled after consultation between (among others) the Principal Family Court Judge and New Zealand Psychologists’ Board: see cl 2 of the Practice Note. See also, K v K [2005] NZFLR 28 (HC) at para [92].
from her notes and the cross-examination that followed, it was problematic that counsel for the parties did not have an adequate opportunity to review her evidence before the hearing. That compromised their ability to test Ms Lightfoot’s opinions through cross-examination.
[61] I intend no criticism of the Judge or of counsel for what occurred. The process that was followed was the natural consequence of Judge Coyle’s decision not to direct an updating report.43 Having said that, the way in which Judge Coyle exercised his discretion, on the information available to him, cannot be gainsaid.
[62] In any event, Ms Lightfoot did give some evidence to suggest that the risk of alienation may have reduced since her report for the 2015 hearing was prepared. For example:
(a) In her oral evidence, Ms Lightfoot said:
But when I listened to the evidence in this hearing I guess I did get a sense that maybe outright negativity has decreased. However there was an overwhelming sense of indifference and lack of concern about Mr Burnett’s relationships with the children. … It’s not quite perhaps so bad as it was, but there is still quite a set of circumstances that could quite well contribute towards parental alignment and eventually alienation.
(emphasis added)
(b)During cross-examination from Ms Paul on this issue, the following exchange occurred:
Ms Paul: So would you agree with me that the setting for parental alienation is still present?
Ms Lightfoot: Potentially.
Ms Paul: Would you agree with me that Ms Burnett and her family have had a year to really try to address this issue?
Ms Lightfoot: I’m not sure that Ms Burnett is responsible
for her family …
43 See s 133(6) of the Care of Children Act 2004, set out at para [24] above. Generally, see paras
[22]–[25] above.
[63] Those, and other extracts, from the oral evidence given by Ms Lightfoot
suggest that the Judge’s concerns about the risk of alienation were overstated.
[64] To support the Judge’s findings, independently of Ms Lightfoot’s evidence, Ms Paul referred generally to the following aspects of the evidence, which she characterised as “overwhelming”, in the context of the risk of alienation finding:
(a) Ms Burnett’s failure to communicate on important issues with Mr
Burnett;
(b)Steps taken by Ms Burnett, in an endeavour to limit Mr Burnett’s contact with Mary, thereby preventing a proper relationship from developing;
(c) Views expressed by Ms Burnett, her mother, her sister and Peter continued to be negative towards Mr Burnett; and
(d)Ms Burnett and her family failed to promote a continuity of relationships between the children and either (or both) Mr Burnett and his mother.
[65] Mr Blair was able to bring a degree of insight to the situation that Ms Lightfoot could not. He has been involved in the proceeding throughout, initially as Lawyer for Alice, and later for both children. He has had the opportunity to see Alice from the age of three years to the age of five years, and to observe both children interact with their respective parents in the homes of each.
[66] In his report to this Court, Mr Blair provided useful information in relation to the risk of alienation issue:
(a) In relation to activities observed in Ms Burnett’s home in [redacted], Mr Blair stated that:
(i)Alice was displeased with her mother’s rule that she could not take her new phone to her father’s home;
(ii)Alice spoke about being physically sick during trips and said “It’s too far, I would rather live here, and I am the only one who gets sick in the family”;
(iii)Alice’s wish is to live with her mother, Peter and Mary in [redacted] because she misses them when she goes to [redacted] and cries; and
(iv) (To use his own words) “I believe [Alice] was very articulate
and expresses her position well for a child who is not yet six”.
(b)In relation to activities observed in Mr Burnett’s home in [redacted], Mr Blair reported that:
(i) Alice acknowledged the enjoyment of holiday time at her
father’s home;
(ii) Alice mentioned her travel sickness, but did not emphasise it
nearly as much as when she was at her mother’s house; and
(iii)Alice has a close and natural relationship with her father, which “is completely compatible with Ms Lightfoot’s assessment of that relationship in 2015”.
[67] Mr Blair submitted that there was only ever a risk of parental alienation and that Judge Munro did not have a basis to find anything more than a risk. This was a common theme of his presentation.
[68] Mr Blair also emphasised Ms Lightfoot’s observations that the potential for harm to the children’s relationship with their father appeared to have reduced. While Mr Blair accepted that Ms Lightfoot had raised some “question marks” about the possibility of parental alienation, he submitted that the evidence was insufficient to support the finding that the Family Court Judge made.
[69] In my view:
(a) Probative evidence available at the 2016 hearing went no further than to suggest a possibility that Ms Burnett might, in the future, act in a manner designed to alienate the children from their father.
(b)The level of risk was insufficient to require Alice to be placed in the day-to-day care of her father, so as to avoid that possibility.
(c) The level of risk of alienation that actually exists is insufficient, of itself, to tilt the balance in favour of a parenting order that places Alice in the day-to-day care of Mr Burnett.
[70] Having reached that conclusion, I must now review all relevant evidence (including that relating to the risk of alienation) and form a view as to what parenting arrangements should be put in place to promote the welfare and best interests of the two children.
(d) Should different parenting orders be made? (i) Introductory comments
[71] While the orders under appeal must be assessed in the context of the factors that led Judge Munro to make her interim orders in 2015, the focus of my inquiry is directed to whether the orders made in her judgment of 21 October 2016 promoted the welfare and interests of each child. Limited weight can be put on the interim findings made by Judge Munro on 20 June 2015. The orders that she made were designed to establish a status quo which would continue for a short time, before an anticipated settlement conference in February 2016.
[72] While I have given consideration to wider issues raised by counsel on appeal, in order to ensure this judgment is available to counsel and the parties at the earliest possible time, I intend to express my own analysis without any fulsome reference to counsel’s helpful submissions. I intend no disrespect to counsel in doing so. I gained much assistance from the submissions made by Mr Jefferson, Ms Paul and Mr Blair respectively.
(ii) The “best interests” inquiry – relevant factors
[73] Undoubtedly, a shared care arrangement would have been the best solution, in order to promote the welfare and best interests of both Alice and Mary. But, that possibility was foreclosed by the decisions of each parent to live in locations that are insufficiently proximate to make that option workable. I make no criticism of either Mr or Ms Burnett. Their individual choices must be respected.
[74] My starting point is to consider what questions must be answered in order to determine where the welfare and best interests of each child lie. In my view, three substantive questions arise:
(a) First, are the children’s needs best met by living primarily in
[redacted] or [redacted]? I call this the “location issue”.
(b)Second, would any benefits or detriment result from an order that required Alice and Mary to live in different locations? I call this the “sibling relationship issue”.
(c) Third, what impact does the possibility that Ms Burnett might seek to alienate the children from their father have, in the context of the “best interests” inquiry? I call this the “risk of alienation issue”.
(iii) The location issue
[75] Alice spent most of the first three years of her life in [redacted], when Mr and Ms Burnett lived together.44 Since that time she has lived primarily with her mother in [redacted]. Since 30 June 2015,45 notwithstanding the distance between [redacted] and [redacted], a shared care arrangement has been in place. During that time, without minimising the benefits of contact with her father, Alice has not spent any
significant time in [redacted].
44 See paras [5]–[7] above.
45 [citation redacted]. See para [16] above.
[76] Ms Burnett has the benefit of family support in [redacted]. Her mother and sister, both of whom gave evidence at the August 2016 hearing, live there. Judge Munro took the view that Ms Burnett remained “very reliant on the support of her family”, in particular, “for emotional support”. Although there has been little contact in recent times, Mr Burnett’s mother, Ms Russell, has been resident in [redacted]. At present, Ms Russell lives in [redacted] in a studio apartment. While it would be desirable for Alice to develop a stronger relationship with Ms Russell, her home is no longer appropriate as a venue for Mr Burnett to exercise contact in [redacted].
[77] As part of the interim arrangements into which Ms Burnett and Mr Burnett entered, pending determination of the appeal, Alice has attended a primary school in [redacted]. It was agreed that would not count against Mr Burnett. As it happens, I regard the factor as neutral, given the short time during which Alice has been attending that school; even having regard to the need to take into account “the principle that decisions affecting [a] child should be made and implemented within a
time frame that is appropriate to the child’s sense of time”.46
[78] Importantly, Alice also has a strong relationship with her step-brother, Peter. He must be regarded as part of the family group in which she lives in [redacted]. As I discuss later, the most desirable situation for a child in Alice’s circumstances is to live together with her siblings. I include Peter in that equation.
[79] At present, I am assessing Alice’s needs as if she were an only child. I am satisfied that her best interests would be met by living with her mother in [redacted]. On Mr Blair’s assessment, she is settled in that environment. She will have made friends, both at kindergarten and at school. There are other family members in [redacted] with whom contact should be encouraged. I include Ms Russell as someone who is within that family group.
[80] There is no question that Mary must remain with her mother. She is just shy of three years’ old. Even on Judge Munro’s analysis, there was no reason for Mary to join her sister and father in [redacted] until she started school. I am much less
sanguine than was Judge Munro at the possibility of making an informed predictive
46 Care of Children Act 2004, s 4(2)(a).
assessment of what might happen in the time that is to pass before Mary starts at primary school.
(iv) The sibling relationship issue
[81] As I have already mentioned, Alice has two siblings, Mary and Peter.47 All three have lived together as a family group since Ms Burnett left [redacted] in July
2014. Undoubtedly, it is desirable to maintain those sibling relationships.
[82] Although Judge Munro was prepared to direct that Alice and Mary live in the day-to-day care of different parents, at least until Mary began to attend primary school, that judgment was based on what I have found to be an overstated risk that Ms Burnett would attempt to alienate Alice from her father. No similar assessment was undertaken with regard to Mary. Nor could it sensibly have been, given that the psychologist called to give evidence had never met Mary or seen her interact with either parent.
[83] At this stage of the inquiry, the views expressed by Alice assume some relevance. Mr Blair conveyed Alice’s wish to live with her mother in [redacted]. She also expressed the view that contact with her father ought to be reduced, primarily because of travel concerns. Importantly, for my purposes, Mr Blair has reported that Alice is able to express herself well, for a child of her age.48 One of the points she made to Mr Blair was that she wishes to live in a family environment which includes both Peter and Mary.49
[84] Judge Munro treated Alice’s views with some circumspection. She believed they may have been unduly influenced by comments made by her mother in the family home at [redacted]. Given Alice’s age, I take her views into account, but do not give them significant weight. My impression is that Alice is happy with her mother in [redacted] or her father in [redacted], though she would prefer to be in the company of her siblings. That is the basis on which I approach this aspect of the
“best interests” inquiry.
47 See para [78] above.
48 See para [66](a)(iv) above.
49 See para [66](a)(iii) above.
[85] Mr Blair accepted that Mary was too young to express any view. I agree, as did Judge Munro.50
(v) The risk of alienation issue
[86] While I have been critical of the risk of parental alienation being used as a determinative factor in the assessment of what is in the best interests of Alice, it remains a factor to be taken into account in making the ultimate decision about care arrangements. I am concerned that Ms Burnett continues to exhibit a lack of understanding of the need to promote a good relationship between the children and their father.
[87] In determining where Alice should live, I take account not only of the risk that Ms Burnett might attempt to alienate Alice from her father, but also the risk that she might not encourage contact between Ms Russell and the children in [redacted]. In making that point, I am conscious that the latter might be addressed satisfactorily through a contact order that included Ms Russell. Ms Russell is a member of Alice’s family who would have the right to apply for leave for a parenting order, in the form
of contact.51 While no application is currently before the Court, I expect Ms Burnett
to conduct herself in a way that ensures none is necessary in the future. If a Family Court were satisfied that efforts were being made to stifle appropriate contact between grandmother and grandchild, it is very likely that leave would be granted and an order made.
(vi) Conclusion
[88] Having balanced all of those factors, I have reached the conclusion that both Alice and Mary should be in the day-to-day care of Ms Burnett. Although specific arrangements for contact are likely to be difficult to craft, given Mr Burnett’s location in [redacted] and Ms Russell’s housing arrangements in [redacted], generous
contact of various types must be ordered.
50 [citation redacted].
51 Care of Children Act 2004, s 47(1)(d).
[89] In my view, contact should involve a mix of regular visits by the two children to [redacted], less frequent (by comparison with the regular visits to [redacted]) contact in [redacted], some holiday periods with Mr Burnett, and Skype or telephone contact of a type to be organised between Mr and Ms Burnett on a regular basis.
[90] I am conscious that the parties wanted me to make final parenting orders. While I am clear that day-to-day care should rest with Ms Burnett, with Alice living in [redacted] and attending primary school there, the contact arrangements are too complex for me to deal with on appeal. The parties did not really focus on the more nuanced contact arrangements that are necessary, given the day-to-day care orders I am making.
[91] My powers on appeal are conferred by s 143 of the Act. Section 143(1)
provides:
143 Appeals to High Court
(1) This subsection applies to a decision of a Family Court or District Court, in proceedings under this Act (other than criminal proceedings), to—
(a) make or refuse to make an order (other than an interlocutory or interim order); or
(b) dismiss the proceedings; or
(c) otherwise finally determine the proceedings.
….
[92] In addition, s 143(4) incorporates powers possessed by this Court when determining an appeal from the District Court. Rule 20.19 of the High Court Rules expresses the powers in a more specific way. Rule 20.19(1), (3) and (4) provides:
20.19 Powers of court on appeal
(1) After hearing an appeal, the court may do any 1 or more of the following: (a) make any decision it thinks should have been made:
(b) direct the decision-maker—
(i) to rehear the proceedings concerned; or
(ii) to consider or determine (whether for the first time or again) any matters the court directs; or
(iii) to enter judgment for any party to the proceedings the court directs:
(c) make any order the court thinks just, including any order as to costs.
…
(3) The court may give the decision-maker any direction it thinks fit relating to—
(a) rehearing any proceedings directed to be reheard; or
(b) considering or determining any matter directed to be considered or determined.
(4) The court may act under subclause (1) in respect of a whole decision, even if the appeal is against only part of it.
...
(Emphasis added)
[93] The orders I shall make are intended to allow the Family Court to formalise the order placing both children in the day-to-day care of their mother, and to craft contact orders that will meet the goals to which I have referred in this judgment.52
My intention is that, after receiving further submissions in writing, Judge Munro will determine the form of the orders to be made, on the papers.
Result
[94] For those reasons, the appeal is allowed. The orders made in the Family Court are set aside. The interim orders currently in place pending determination of this appeal shall continue, pending further order of the Family Court.
[95] The parenting application is remitted to the Family Court to determine the precise scope of the day-to-day care order, and the corresponding contact orders. I
direct:
52 See paras [88] and [88] above.
(a) Counsel for Ms Burnett shall file and serve a memorandum setting out the terms of the day-to-day care and contact orders proposed by her. The memorandum shall state the reasons why orders are sought in those terms, with specific reference to relevant parts of this judgment and the evidence given before Judge Munro. That memorandum shall be filed and served on or before 20 March 2017.
(b)Counsel for Mr Burnett shall file and serve a memorandum setting out the terms of the day-to-day care and contact orders proposed by him. The memorandum shall state the reasons why orders are sought in those terms, with specific reference to relevant parts of this judgment and the evidence given before Judge Munro. That memorandum shall be filed and served on or before 27 March 2017.
(c) Mr Blair, as Lawyer for the Children, shall file and serve a memorandum setting out the terms of the day-to-day care and contact orders proposed by him. The memorandum shall state the reasons why orders are sought in those terms, with specific reference to relevant parts of this judgment and the evidence given before Judge Munro. That memorandum shall be filed and served on or before 31
March 2017.
(d)On 3 April 2017, the Registrar of the Family Court shall refer all memoranda to Judge Munro to determine the form of the orders to be made. Ideally, that decision should be made before Easter, so that the orders are effective from the beginning of the second term of the school year.
[96] I make no order as to costs. While Ms Burnett has been successful on the appeal, it will be clear to her that I do harbour some residual concerns about her likely future conduct. While I have disagreed with the decision reached by the Family Court Judge, the concerns that lay behind her orders continue to have relevance. Mr Burnett should not be penalised in costs for the stance that he took on appeal.
[97] Mr Blair’s costs and disbursements in this Court shall be paid out of moneys appropriated for the purpose by Parliament. He shall continue as Lawyer for the Children, pending further order of the Family Court.
[98] I thank all counsel for their assistance.
P R Heath J
Delivered at 4.00pm on 13 March 2017
2
1
1