Carleton v Carleton HC Auckland Ap165-Sw00

[2001] NZHC 315

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY AP165-SW00

BETWEEN OKSANA ILLICH CARLETON
Appellant

AND BRIAN DAVID CARLETON
Respondent

Date of Hearing: 1 May 2001

Counsel: Mr Hooker for the Appellant
Ms Anderson for the Respondent

Date of Judgment: 1 May 2001

ORAL JUDGMENT OF GLAZEBROOK J

Introduction

[1] This is an appeal from a decision of Judge O’Donovan on 8 December 2000 refusing the appellant’s application to remove Leonid, the two year old son of the parties, to Australia to live with her and her new partner Mr Hinze.

Facts

[2] In terms of the facts of the case the parties lived together in the Ukraine, as I understand it, for some months in late 1997, having begun their acquaintance through correspondence. The appellant was sponsored by the respondent to come to New Zealand and their son was born in New Zealand in July 1998. They married in October 1998 and unfortunately separated in September 1999.

[3] This matter has a relatively long history in the Family Court with a number of hearings and orders. The relevant ones to this appeal are the decisions of Judge O’Donovan on 14 July 2000, an interim decision, and the 8 December 2000 judgment which is the one appealed from. The December judgment refers to the 14 July decision and in the December judgment Judge O’Donovan indicates that the views that he expressed in the 14 July decision remain unchanged. Both parties appear to be agreed thus that the two judgments, the July and the December judgments have some relevance to this appeal but it is fair to say probably differ on the extent of the relevance. From the respondent’s point of view the argument is that the two decisions effectively have to be read together whereas the appellant places more reliance on the December decision while recognising that some matters related to the July decision are important.

Grounds of Appeal

[4] In terms of the appellant’s argument, the first argument is that there was an error of law in Judge O’Donovan’s decision in that he did not take into account the right, although it was recognised as not an absolute right, of the custodial parent to determine location of residence of the child.

[5] The second argument was that Judge O’Donovan, in exercising his discretion, failed to take into account a number of relevant factors. The first relevant factor was the same as set out in the error of law, that is, the right of the custodial parent to determine location but the argument was that the following factors were also not taken into account.

[6] The first of these extra factors was that the Judge did not take account of the fact that the access of the father to Leonid, being effectively equal access, was only in place as a result of the July decision and thus this created an error in that the position should have been looked at prior to July rather than using the extra access as providing justification for the refusal.

[7] The second factor was that the Judge failed to take into account the reasons that the mother wishes to move to Melbourne and the fact that these reasons are not to deprive the father of access to Leonid but are reasons related to her new relationship and the position of her new partner with his work.

[8] The third factor is that the Judge, according to the appellant, has failed to take into account that since the July judgment access arrangements have been working well and, in addition, failed to take into account the support both emotionally and financially of the appellant’s new partner to the access arrangements that are in place and that would be in place should the move to Australia be allowed.

[9] The appellant also says that the Judge did not take into account things that he said in the July judgment would be important such as the stability of the relationship with Mr Hinze, and the ability of the appellant to reside in Australia.

[10] The final submission was that the balancing of the various factors was not clearly set out in the judgment and that therefore there had been a failure in the correct balancing of the factors such as the mother’s happiness, the reasons for the move, the new relationship against the other factors that were to be taken into account.

Respondent’s Arguments

[11] The appeal was opposed on the following grounds. The first was that the appellant was seeking to appeal findings of fact of Judge O’Donovan, rather than isolating issues of law. The second was that the appeal was barred by s31(1) of the Guardianship Act 1968 because the appeal was in respect of a decision made by Judge O’Donovan under s13 of the Guardianship Act relating to disputes between guardians which include determining the place of residence. If that second submission was not accepted the respondent submitted that the Judge had correctly applied the law in terms of the decision of the Court of Appeal in Stadniczenko Stadniczenko [1995] NZFLR 493 and the cases following. Finally the respondent argued that the Family Court’s discretion was exercised in accordance with the correct principles and in addition there had been no miscarriage of justice.

Section 31

[12] I first deal with the question of whether there is a right of appeal in this case or whether it is excluded by s31(1). The submission was that the only thing appealed from in this case was the s13 order as to place of residence and that there was no appeal in respect of the access or custody issues.

[13] The respondent referred to the decision of Wright v Wright [1984] 1 NZLR 366 but sought to distinguish that decision. In Wright v Wright at 340 it was stated that there would be no appeal if a decision was exclusively referable to s13 proceedings. However the Court went on to say:

“If the only proceedings in the matter before a Family Court have been under s13 no problem as to appeal rights should arise; there are none and the only available method of challenge is judicial review. As already noted, s13 does not authorise custody or access orders so a judicial review would prima facie be appropriate if such an order were purportedly made in proceedings brought under s13 only.

. . . [I]t is possible to make multiple applications in a District Court under the Family Proceedings Act 1980 or the Guardianship Act . . . An order will not be excluded from the right of appeal by the exception in s31(1) unless it is made solely under s13 or s14 and, when some order under another section has been made at the same time, is not so associated with the other order that they should be considered together”.

[14] It is noted also at 341:

“Insofar as issues of custody or access are raised by the proceedings before the Court the proceedings cannot be dealt with under s13 alone.”

[15] The submission by the respondent is that here there is a separate decision under s13 and, this being the only decision appealed from, there can be no right of appeal. It is very difficult for me to see the s13 orders in this case as being split from the custody and access orders made at the same time both in the July decision and the confirmation of those arrangements and indeed slight changes to those arrangements in the 8 December judgment.

[16] There was an argument by the respondent that there were procedural differences between the Wright case and this case which allowed there to be an appeal in the Wright case and not one in this case. I do not read Wright as taking a narrow procedural view. The principle from Wright is that if the applications under s13 are closely associated and linked with custody and access arrangements, which they clearly were in this case, then an appeal lies in respect of the s13 orders. As such the decision is that the appeal is not excluded by s31(1) of the Guardianship Act.

Principles for Appeals

[17] Moving on thus to the appeal itself, the principles that are to be applied are clear. There is no longer a de novo rehearing in these type of cases. The appeal is an appeal in the ordinary sense of appeals from the District Court.

[18] With the following principles in mind the appeal must be determined against a background of the fact that we are dealing with a specialist court and a court which has heard the evidence. As such in this case there is probably more weight given to the decision of the lower court than possibly in the normal run of cases, given the specialist nature of the court below. Certainly very great weight is given to the decision of the first instance Judge in the Family Court.

[19] Moving on to the general principles the first is that findings of fact are only reversed if plainly wrong but there appears, despite the submission of the respondent, not to be challenges to the findings of fact by the appellant. The appellant appears to be arguing more in terms of errors of principle and failure to take into account relevant considerations being errors of law rather than questions of fact.

[20] In terms of looking at those principles this court would overturn a decision if there had been an error of law in that the court below had applied the wrong principle. In addition, if factors had been taken into account which should not have been taken into account or, if the court below did not take into account factors which it should have taken into account, then an appeal will lie.

Error of Principle

[21] Looking then at the substance of the appeal and starting with the argument of the appellant that there has been an error of law in that Judge O’Donovan did not take into account the right of the custodial parent to determine location. It was recognised by the appellant that this right was not an absolute right but it was argued on the basis of the Court of Appeal decision in Stadniczenko that the right of the custodial parent to determine residence was the starting point and especially where, as in this case, there were genuine reasons for moving. The argument was that the Judge had not taken this into account as a starting point.

[22] Looking at the December decision, and looking in particular at paragraph 4 of that decision, it is clear that the Judge did have considerable sympathy for the mother’s predicament and recognised the many advantages to her in moving with her new partner to Australia. It is also noted in this paragraph that there were clearly advantages for Leonid in this, in particular that his own wellbeing would be enhanced as a result of his mother’s increased happiness, that he would not be exposed to the parental conflict occurring, and would, the Judge hoped, be a member of a stable household. He also noted that there would be cultural experiences in Melbourne not available to him in New Zealand, related clearly to the Ukrainian cultural experience that could well be available in Melbourne on the basis of the appellant’s evidence.

[23] The Judge then went on in paragraph 5 to look at the separation from the father and the limited opportunity to spend time with the father that would ensue from the move as well as the separation from the paternal family network in New Zealand. The Judge noted that Leonid would experience grief and sadness as a result of being separated from his father and expressed the concern that he would be hindered in retaining and developing an affectionate and life-enhancing relationship with his father. The Judge noted difficulties of communication between the parents at the stage of the hearing which he considered would only get worse if the child was moved to Australia. He also noted the obviously close bond that existed between Leonid and his father.

[24] The nub of the decision of the Family Court was, however, in paragraph 8 of Judge O’Donovan’s judgment where he indicated that the bottom line was Leonid’s best interests and, while recognising that the ability to move to Australia would promote the mother’s happiness, he considered that it would have significant adverse effects on Leonid’s welfare. He concluded that:

“In this case I am satisfied really beyond any measure of doubt that to permit Leonid to go to Australia with his mother on any long-term basis would not be in his best interests. That of course concludes the matter and requires me to decline mother’s application.”

[25] Taking this progression of reasoning into account, even if one accepts that the starting point is that the custodial parent can determine location, this is not a presumption in favour of the custodial parent. The law clearly is that the overall consideration is the welfare of the child. While Judge O’Donovan may not have expressed explicitly the right of the custodial parent as being a starting point, he clearly had in mind the happiness of the appellant and he has clearly considered the effect that this would have on the welfare of the child and, indeed, the other aspects relating to the relocation which could have impacted on the welfare of Leonid were quite clearly considered in the factors as set out in paragraph 4.

[26] It is also clear in paragraph 5 that the access arrangements with the father are considered not in fact in this case in terms of the rights of the father but quite clearly in terms of the welfare of the child and the importance for Leonid’s welfare of the relationship with his father, the close relationship, being sustained and enhanced.

[27] It is clear from the decision of Stadniczenko at 500, that the governing principle is the welfare of the child. It is noted that:

“Subject to that consideration the rights of the custodial parent to pursue his or her own life or career and the rights of the non-custodial parent to access can be taken into account. Choice of residence and rights of access are not solely a matter of the rights of the parents, however. As is shown by the cases cited, they may also be important considerations in their impact on the welfare of the child.”

[28] It is noted in this case from the passages from Judge O’Donovan’s judgment I have quoted above that clearly both the rights of access and the rights of the custodial parent to pursue her own life were taken into account, were clearly in the judge’s mind, but that both of these were looked at in terms of the welfare of Leonid.

[29] It was stated in the case of Stadniczenko, further down that page:

“If, on the other hand, his decision [the decision of the Family Court Judge] was reached on the basis of the welfare of the child, looking at all relevant factors including the need of the particular children for a continuing relationship with their father, then there would be no error of law. It is not for this Court to make its own assessment of the facts if the Judge has followed the correct principle.”

[30] In this case there is no doubt that the paramount consideration in Judge O’Donovan’s mind was the welfare of Leonid. He did take into account a number of relevant factors in respect of that. There therefore appears to me to be no error of principle and it is not for this Court to substitute its own view where this is the case.

Discretion

[31] The next aspect was in respect of the exercise of the discretion and whether there was a failure to take into account relevant factors. I have already indicated that the Judge did take into account the rights of the mother and clearly had in mind the effect of his decision on the happiness of the mother.

[32] The next point was that the judge had failed to take into account that the effectively shared parenting arrangement had only resulted from the July decision and that this should not have been given the weight that it was given by the Judge. I note, however, that in the July decision the view expressed by the Judge very strongly was that it was in the best interests of Leonid that the appellant should remain with him in New Zealand.

[33] Thus, on the basis of the information before the Court at that stage including the relatively generous interim access arrangements that had been operating since September and the psychological evidence that was given in that July hearing, the Judge’s view at that stage did not differ from the view in December. As such, even if the decision was taken back to July, the decision would have been the same and, given that the particular findings in respect of the bond between Leonid and his father are not challenged, it seems difficult to see how the decision would have been different without the extra access arrangements.

[34] In any event, it must be assumed that the extra access arrangements given in July were given in recognition that it was in the best interests of Leonid that there should be that increased access and indeed there was some re-arrangement of access arrangements to enable Leonid to attend church with his mother.

[35] The next issue related to the reasons for the move of the mother not being to deny access in respect of Leonid to his father. Again, this seems to have been in the mind of the Judge quite clearly in that he refers in his decision to the developments that had occurred since the hearing on 14 July including the fact that the appellant and her partner have become engaged to be married, thereby evidencing their strong commitment to their relationship, and the fact that Mr Hinze had decided to return to Australia to resume his employment there.

[36] The concern was not in respect of the genuineness of the reasons. the concern that was expressed by Judge O’Donovan was the effect of the move being the loss of contact with his father and the adverse effect that would have on Leonid’s welfare.

[37] The next issue was that there had not been a proper taking into account of the access arrangements from the July hearing and the change in view as evidenced by her affidavit of 4 December of the appellant in respect of those access arrangements and the importance of the continued contact with the father. In addition it was submitted that Mr Hinze’s clear support of those access arrangements had also not been taken into account.

[38] First let me say that it is not necessary for a judge to refer to everything that he has taken into account in his decision, and clearly those matters were before him. It is to be noted that the type of findings that were set out in the 14 July judgment as to the lack of commitment as to access arrangements on behalf of the mother are not repeated in the December judgment. However, what Judge O’Donovan’s concern appears to have been is with the continued lack of communication between the parties and the concern was expressed in paragraph 5 that:

“. . . [I]f Leonid goes to Australia with mother this inability of the parties to properly communicate will only get worse and will obstruct father’s efforts to have appropriate contact with his son.”

[39] The concern of the Judge here was that the difficulties of communications that clearly were still present were going to be merely exacerbated if there was the move to Australia.

[40] The next submission was that the Judge failed to take into account things that he said would be important in his July decision, for example, the stability of the new relationship which at the time of the July hearing was a very new relationship. Given what I have already referred to in respect of the recognition of the engagement set out in paragraph 2 this does not appear to be able to be sustained. This was something that was taken into account by the Judge in the December decision. In addition the question of permanent residence had been resolved by the time of the December decision. This was something in the July decision was seen of as possible significance. It must be noted that it could well have been of major significance if the appellant was not able to get permanent residency in New Zealand and was not able to get entry into Australia as she would not have been able to stay in either country.

[41] The final submission was that there had been an incorrect balancing of the various factors. This is really a submission that improper weight had been given to various factors. The balancing of factors, provided that the factors that are taken into account are able to be taken into account and that all relevant factors have been taken into account, is a matter for the Judge and it is not for me to impose my view. The Judge balanced the relevant considerations. The decision that he made, while unfortunately having consequences in respect of the mother’s ability to pursue her new relationship in Australia (which was a matter taken into account), is a matter for the Judge unless clearly the decision arrived at was unreasonable. Given the emphasis on the welfare of Leonid and the close bond that he has with his father it is not possible to come to that view.

[42] As such the appeal is dismissed.

Costs

[43] The question of costs is reserved given that there is some uncertainty as to whether the respondent is legally aided. As such the respondent is to file and serve a memorandum on or before 5:00pm, Tuesday, 15 May 2001. If the position in respect of legal aid is not clear by that stage a memorandum should be filed to that effect and an extension will be granted. Any fees arrangement between the respondent and counsel, in the absence of legal aid being granted, should also be covered in the memorandum. The appellant is to file and serve any memorandum in reply on or before 5:00pm, Tuesday 29 May 2001.