Crosby v Crosby HC Auckland Ap124 SW01

[2001] NZHC 1320

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY AP124 - SW01

IN THE MATTER of the Guardianship Act 1968

BETWEEN DAVID ALLEN KEITH CROSBY of 390 Wairere Road, Waitakere City, Auckland Information Technology Mentor
Appellant

AND HELEN KAYE CROSBY of 61 Keegan Drive, Massey, Auckland, Technology Support Officer
Respondent

Hearing: 19 and 21 December 2001

Counsel: P Farr and F Hackshaw for Appellant
J Anderson for Respondent
A Goodwin for Children

Judgment: 21 December 2001

ORAL JUDGMENT OF PRIESTLEY J

Solicitors:
Carson & Co, PO Box 28 421, Remuera
Gubb & Partners, PO Box 5530, Wellesley Street, Auckland
Corban Revell, PO Box 21 180, Waitakere City
Counsel:
P Farr, PO Box 36133, Northcote

Introduction

[1] This application by way of an appeal from an interlocutory decision of the Waitakere Family Court was first called before me on 19 December 2001 in the Duty Judge list. Because of the urgency involved and in particular because the interests of two children require some final determination of the interlocutory issue, I directed a hearing today. I am obliged to all counsel for having appeared at short notice, for their assistance and for comprehensive and focused submissions.

Interlocutory appeal

[2] The appeal before me relates solely to a decision of Mather DCJ delivered in the Waitakere Family Court on 23 November. His decision was to decline a stay of orders made in the same court under the Guardianship Act 1968 two months earlier (24 September 2001).

[3] When the matter was first called before me various procedural objections were raised by Ms Anderson. She observed correctly that there had been no payment by way of security for the respondent’s costs and that, in terms of the relevant provisions, there was a strong argument that the appeal had lapsed by operation of law. In an attempt to salvage the situation, if salvaging it needed, I directed that a fresh application was to be filed by 5 pm on 19 December and $1000 security to be provided by the appellant. The latter has been attended to. Whether the former direction has been adhered to is unclear.

[4] In any event I believe that the interests of the parties, and more importantly the interests of the two children, require this issue to be determined once and for all. Hence this hearing. I declined to be deflected from it by technical points which will not assist difficult issues which impact on the children.

Substantive appeal

[5] The substantive decision of Mather DCJ dated 24 September 2001, is subject to an appeal to this Court. There has already been a directions conference (ironically on the same day as the stay hearing) and a one day fixture for the hearing of the appeal has been allocated in the week beginning 4 March 2002. It is not necessary for me to traverse the factual background in any detail, nor of course do I intend to make any comment on the substantive issue which will be the prerogative of the presiding Judge at the appeal.

[6] The parties are married. They separated in April 2000. There are two children. Shaun who is now aged 12 is the elder. The appellant is not Shaun’s biological father but it appears from the evidence that he is the child’s psychological father. The second child Samara, is aged 3. The parties are her parents.

[7] The substantive hearing in the Waitakere Family Court determined the respondent’s application in terms of which she sought appropriate orders to permit her to go and live with the two children in Christchurch. These orders were opposed by the appellant. There was a two day hearing. The decision was in the respondent’s favour. The learned Family Court Judge described the decision as a finely balanced one. That is not surprising given the care arrangements which had been in place over the previous 18 months or thereabouts. There was psychological evidence, however, which in the view of the Family Court Judge was decisive and which related particularly to the position of Shaun.

[8] Mr Goodwin as counsel for the children, who has clearly in my judgment dealt with this unhappy dispute at all relevant stages with a high degree of competence, made no submissions on the merits in the September hearing. That of course is an appropriate stance for counsel for the children to take in cases which are finely balanced.

[9] The orders made by the learned Family Court Judge did not contemplate any specific departure date on which the respondent and the children would leave Auckland for Christchurch. Understandably perhaps the respondent has put arrangements in place to leave Christchurch in the forthcoming January holiday period.

District Court stay hearing

[10] The application for stay before the learned Family Court Judge (who by this stage was aware of the approximate date of the appeal) was declined. This of course left no impediment in the way of the respondent relocating the two children in Christchurch. The reasons which the learned Family Court Judge gave for his decision were as follows :

“[21] While the decision of this Court under appeal does not effect a reversal of the current parenting roles, it does make significant changes. The appellant will no longer have the care of the children for 5 days each fortnight. His face to face contact with them will be restricted to school holidays, together with some additional discretionary visits that he might arrange. His ability to be involved with the children’s activities will be significantly reduced because of the distance between the two homes.

[22] The respondent is making plans to terminate her current employment in Auckland around Christmas time. She (and her mother) plan to find new accommodation in Christchurch and settle there with the two children. These plans will inevitably have to be deferred if a stay is granted. It does not appear that this would go beyond inconvenience and frustration to constitute hardship.

[23] The High Court has indicated that the appeal will be heard in the week commencing 4 March next. However, if there is any delay in the transcript of evidence being provided, or presumably if other fixtures take priority or for any other reason hearing time is unavailable in March, the appeal hearing will be further delayed. Prolonging the period of uncertainty is clearly unsettling for all the family.

[24] Having said that there is an irreconcilable tension between preserving the rights of appellants seeking to overturn a decision against them, and the right of successful litigants to the benefits of a judgment in their favour.

[25] The decision under appeal records my concession that this was a difficult, finely-balanced case. To a significant extent it turned on issues of credibility and the exercise of a discretionary judgment addressing the somewhat elusive touchstone of the best interests and welfare of children. The reluctance of the High Court on appeal to interfere with a decision made on that basis is, in my view, a significant factor.

[26] I do not accept the argument that the right of appeal would be rendered nugatory if a stay were refused. There is no reason to believe that the respondent could not, if ordered, relocate back to Auckland from Christchurch if the applicant is successful on appeal. That will of course involve disruption for the children but not to such an extent that it weighs heavily in favour of the application for stay being granted, particularly having regard to the ongoing problems in Auckland which must be affecting the children.

[27] Taking all these matters into account it is my view that the welfare of these children is best served by refusing the application for stay and allowing the respondent to relocate with the children to Christchurch, as proposed, in January next year. Clearly that must follow the access to which the applicant is entitled in accordance with the judgment of 24 September 2001. His work commitments over the approaching holiday period should be given proper weight in arranging his access.”

[11] At that hearing counsel for the children submitted strongly that the stay application should be refused. A summary of his submissions prefaced the above extract from the Family Court decision. Mr Goodwin identified what he termed as “two primary factors.” The first was the alignment between Shaun and the appellant and the negative consequences of that alignment for both the child and the respondent. The second factor was deep-seated conflict between the parties. Both Ms Anderson and also Mr Goodwin have referred in their respective ways to the psychological evidence produced in the Family Court through two s 29A reports. In Mr Goodwin’s submission that evidence was to a very large extent decisive. That too was the submission of Ms Anderson. Indeed in his 24 September decision the learned Family Court Judge said:

“[35] I deal with this as a specific aspect of the hearing because this is a case where the evidence of the psychologist is of more than usual importance. That is because how the various parenting options will impact upon the children is a crucial issue.”

[12] One must of course, at any level, treat psychological evidence with some caution. In many cases it may well be decisive. Sometimes s 29A reports are equivocal and or ambivalent. The nature and quality of expert evidence inevitably varies. At the end of the day there is the trite observation that Guardianship Act disputes involve trials where decisions are made by judges and not by psychologists.

[13] In this particular case there is an undisputed close bond between the appellant and both the children. I have read, albeit in a cursory way, both Dr Blood’s s 29A reports. I have not had the benefit of reading the transcript of the substantive hearing. There is nothing, however, at the moment which would suggest to me that the psychologist was not fully alert to the close bond which appears to exist between the appellant and both children. Nor does she appear to have been blind to the consequences on the children of the respondent’s substantive application and the inevitable results (including disruption, loss of friends, change of school etc) which ride with relocation cases.

[14] All these matters, however, are central to the appeal and I need not comment on them. It is clear, however, from the learned Family Court Judge’s decision on the stay and also from counsel for the children’s submissions that the psychological aspects have not been overlooked.

The issue

[15] It is clearly the case that applying for a stay was the appellant’s only redress if he wished to impede in any shape or form the departure of the children for Christchurch. I have no doubt at all that the appellant would have found the Waitakere Family Court’s decision devastating. The close relationship which he enjoyed with his two children will inevitably be disrupted and transformed in all sorts of ways. On the evidence before me, from a situation where he was seeing the children for five days a fortnight or thereabouts he would be reduced to seeing the children during holiday periods and on such occasions as he might be able to travel to the South Island. Those anxieties and emotional results are inevitable consequences of orders permitting relocation. Again these issues will properly have to be addressed at the hearing of the substantive appeal.

[16] In terms of s 84 of the District Courts Act 1947 the appellant’s appeal does not operate as a stay and it was undoubtedly for that reason that he brought a stay application under the provisions of s 71A(2) of that statute which appropriately governs appeals under the Guardianship Act.

[17] The provisions of s 76 of the District Courts Act 1947 also apply. It is clear law that this appeal before me on the refusal of the Family Court to grant stay is an appeal by way of a rehearing. My powers on that rehearing are well settled. I am entitled to give judgment as if I were a court of first instance (Pratt v Wanganui Education Board [1977] NZLR 476). I am also entitled to draw inferences from the factual evidence of the court below but it is clear law that I should only interfere with the Family Court decision if I am persuaded that it is demonstrably wrong (Fitzgerald v Beattie [1976] 1 NZLR 265). This general approach has received more recent endorsement by the Court of Appeal in Rae v International Insurance Brokers (Nelson Marlborough) Ltd [1998] 3 NZLR 190.

[18] There is nothing remarkable in the authorities I have just mentioned. The test was indeed put correctly by Mr Goodwin in his submissions and endorsed too by Ms Anderson. That test is that I should not interfere with the Family Court Judge’s decision unless it can be demonstrated that there has been an error of the type referred to, which would include the learned Judge giving inappropriate weight to some of the factors which he had considered.

[19] Any inclinations which I might have to substitute my own discretion for that of the learned Family Court Judge, however tempting, must be resisted unless I am persuaded that there is some demonstrable error or that he has omitted to consider matters of relevance.

Factual issue

[20] Mr Goodwin has again formulated a suggested test equally relevant to the stay application. That is:

“Are the potential risks of disruption and uncertainty of a second uplift from Christchurch less or greater than the disruption and uncertainty as well as the ongoing conflict and alignment issues, of remaining in Auckland?”

[21] This approach is one which the High Court in recent years has consistently adopted. I refer in particular to the decisions of Hammond J in C v R [1994] NZFLR 778, and Powel v Duncan [1996] NZFLR 721. The statements of principle were enunciated by Giles J in Martelletti v Faulknor (Auckland High Court, HC 181/97, 23 April 1998)

“The principles of stay pending appeal are well established. The primary factor being whether or not the absence of a stay will render the appeal nugatory. Ordinarily, some assessment of the prospects of appeal are a legitimate consideration. The complicating factor in custody cases is that it is the obligation of the Court to give paramount significance and focus to the welfare and interests of the child. It is that feature which converts what would ordinarily be a simple case to a most complex and difficult decision requiring the exercise of the wisdom of Solomon on the part of the Court. [Page 2]

. . .

I do not accept that it is necessary to demonstrate irreversible harm before this Court should refrain from allowing a custody order to be implemented. I agree with Hammond J’s observations in C v R that the way in which the test is expressed in S v H (1993) 10 FRONS 266 is much too high. For myself I would prefer to leave the matter on general terms whereby the Court must determine, on an objective basis, what is in the best interests and welfare of the child and the concept of the need for irreversible harm is an inappropriate threshold which I would not be prepared to embrace. [Page 11]”

Counsels’ argument

[22] Mrs Farr’s submissions strongly supported the proposition that the status quo should be maintained pending the outcome of the appeal particularly where the case was a finely balanced one. She referred to the costs of the move to Christchurch and the impact that would have on the respondent and to the inevitable disruption to the lives of these children. She submitted that the learned Family Court Judge had given undue weight to the interests of Shaun and had paid scant regard to the interests of Samara. She also submitted (although did not persist in the face of my scepticism) that this stay should be granted to allow s 19 counselling, which the learned Family Court Judge had directed in September, to proceed. My scepticism was founded in large measure on the fact that only 11 days ago the parties completed yet another round of litigation in the Family Court, this time over matrimonial property. It is also clear from affidavits which both parties have filed in this Court that there is still a high degree of animosity. I have no doubt that the problems which the parties have had of a historical nature have been aggravated by the continuing uncertainty which both the substantive appeal and this interlocutory appeal have brought.

[23] Mrs Farr also submitted that the learned Family Court Judge had failed to give sufficient weight to the wishes of Shaun (s 23(2)) who apparently had indicated prior to the substantive hearing that he preferred to stay in Auckland.

[24] I make no further comment on Shaun’s wishes which must obviously be a factor to be considered at the hearing of the appeal. I have been informed from the bar by Mr Goodwin that when he told the child about the outcome of the appeal, which he did not once but twice in the presence of each parent, there was no demonstrable or significant reaction from the child. He certainly did not appear to be distressed at the prospect of living in Christchurch. However, I am sure that a child of this age, being aware of parental conflict, would adopt a somewhat chameleon-like approach and would be reluctant to express strong views either way when in the presence of each parent.

[25] I have given some consideration as to how I should factor Shaun’s wishes into my decision. I have decided the best way is to assume the child is still in a position of some conflict and probably will not have departed from the views which he expressed to his counsel and to the s 29A report-writer prior to the September hearing.

[26] Ms Anderson in robust and helpful submissions has reminded me of the substantive principles (supra para [18]) which must apply to appeals of this type. She also referred to the evidence of the s 29A report-writer Dr Blood, who opined that she had serious concerns over Shaun’s wellbeing, and in particular the conflict between the parties which was attributable in part to the appellant’s views on parenting arrangements.

[27] In Ms Anderson’s submission there has been a further escalation of conflict (in that regard she referred to the recent affidavits). She also points to possible prejudice to the respondent who, relying on both the orders made in September and the refusal to grant a stay, has resigned from her current employment, has vacated her former home and is living with friends (together with the children) and who is clearly anxious to get to Christchurch as rapidly as possible.

[28] Both Ms Anderson and Mr Goodwin have also pointed to the difficulties which might occur if the children were required to travel to Christchurch after the start of the school year. This latter submission, although undoubtedly correct, has to be balanced against the countervailing view of bringing the children back to Auckland from Christchurch if the appeal is successful.

Decision

[29] When I analyse the learned Family Court Judge’s decision I am unable to find any operative error. He has clearly asked himself the right questions. He has reminded himself of the relevant legal principles and case law much of which is set out in this decision. He has listed correctly in his decision the matters which he was obliged to consider. He stated:

“[13] From the above I extract the following principles as relevant in respect of applications for stay in cases such as the present:

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

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

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

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

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

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

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

[30] The only one of his formulated principles with which I would have any difficulty is [f] (supra). I think it would be wrong if there was a perception in the Family Court that because of s 31A enacted by the Guardianship Amendment Act 1998 and the decision of Potter J in Swayne v Lush [1999] NZFLR 49, allowing appeals under the Guardianship Act will be a rare occurrence. Although appeals in this Court are not by way of full rehearing nonetheless High Court Judges will give anxious consideration to s 23 factors and will, in appropriate cases, give consideration to updating affidavits and updating s 29A reports (M v M (AP 26-SW01, 16 November 2001, Fisher, Priestley JJ).

[31] To the extent that the learned Family Court Judge may have taken the view that there was a decreased or minimal prospect of this appeal being successful then in my judgment he would have misdirected himself. These considerations impact on paragraph [25] of his decision (supra) where he observes that to a significant extent his decision, in a finely balanced case, turned on issues of credibility and discretionary judgment. That is indeed correct, but there may well be other reasons relating to either evidence which he had before him or post-hearing evidence which might result in the appeal succeeding.

[32] When I examine, however, the reasons which he has given I am unable to find any demonstrable error. The prospect of the appeal failing has not been determinative of Mather DCJ’s stay decision. Nor am I able to find any factors weighed by the learned Family Court Judge where I can say with any confidence that he has given those factors inappropriate weight.

[33] The psychological evidence obviously played an important part in both his decisions. The learned Family Court Judge made a judgment call that the interests of the children were best served by diminishing the conflict in which they currently found themselves. He also weighed carefully the psychological evidence and obviously considered the submissions of the children’s counsel who opposed the stay application.

[34] Counsel for the children’s submissions will not necessarily be decisive in any case under the Guardianship Act. However, they are entitled to weight and respect particularly since counsel for the children can never be regarded as partisan. When I consider the question posed by Mr Goodwin as being the operative issue (supra para [20]) I am unable to find in the learned Family Court Judge’s decision any portion of it which shows a failure by him to embark on the appropriate weighing exercise.

[35] Finally, as is apparent from the above authorities, the interests of the children must be the paramount consideration both for Mather DCJ on 23 November 2001 and from me today. This is a difficult case in any event, where one has to isolate out the understandable feelings of the parent parties and focus solely on the interests of the children. For whatever reason (and I say no more about this because these issues will need to be canvassed at the appeal) these children are in a situation of conflict. If anything that conflict has got worse over the past few months rather than better. There was an abundance of evidence before the Family Court Judge that this conflict was having an adverse effect on the children. That was certainly the view of their counsel.

[36] Insulating children from conflict does not necessarily lead to relocation. Indeed in many cases a parent’s attempt to diminish conflict by taking children as far away as possible from the other disagreeable parent must be firmly resisted. I do not, however, regard this as one of those cases nor did the learned Family Court Judge. He has correctly factored in the children’s interests and given appropriate priority to s 23. I see his decision as being one in which the children’s interests, as the statute requires, have been given the paramount consideration.

[37] For all these reasons and in particular the inability of the appellant’s counsel to point to any demonstrable or operative error, I have reached the view that the appeal must be dismissed. It is in my judgment unusual not to preserve the status quo pending an appeal in a Guardianship Act dispute. In a finely balanced case, which appears to be an accurate description of this situation, there are even stronger reasons for trying to preserve the status quo. However, on the evidence before the learned Family Court Judge, and in particular he having had the ability to assess the parties and the psychological evidence which led to his decision, this was obviously regarded as a case which justified a departure from the norm. In deciding the case that way I am unable to find or decide that the learned Family Court Judge has erred.

[38] For all those reasons the appeal is dismissed.

Costs

[39] Counsel are not in a position to argue the issue of costs. This is in any event a somewhat conflicted case where there have been past procedural difficulties to which Ms Anderson has drawn my attention.

[40] Costs ultimately in terms of r 47 of the High Court Rules area matter for my discretion although r 48 sets out certain criteria and factors which I must consider. I am alert to the fact, however, that costs are very rarely awarded in Guardianship Act cases unless the conduct of one party has been particularly egregious. I doubt very much whether this is such a case. I do, however, note Ms Anderson’s submission that there have been past procedural irregularities which have inevitably caused extra legal work for the respondent.

[41] Costs can be the subject of memoranda from counsel for the appellant and respondent respectively and ought to be filed and marked for my attention no later than Wednesday 13 February 2002. I would, however, urge the parties not to rub salt into each other’s respective wounds and I encourage counsel to see whether they can reach agreement on the issue of costs particularly having regard to the fact that $1000 has already been paid into the Waitakere District Court trust account. I might require considerable persuasion to make a costs award against anybody in excess of that figure given the nature of this dispute and the fact that this has been a finely balanced case.

Additional matters

[42] Counsel have already filed a joint memorandum (although Mr Goodwin who had not been reappointed in this court was not then a party to it) in relation to the conduct of the appeal. That memorandum was considered at the 23 November 2001 conference.

[43] All counsel see some merit (although Ms Anderson has reserved her position) in obtaining at least an update of Dr Blood’s s 29A report. The timing of such a report will be critical.

[44] As is so often the case with appeals in the Family Court absolutely nothing can happen until such time as the transcript has been typed up which appears to be a fraught exercise given the lamentable lack of resources in that jurisdiction. It is possible the transcript will not arrive in sufficient time for the fixture projected in the week 4 March. It is also possible, of course, that the parties will see a need for brief updating affidavits covering matters which have occurred during the holiday period and of course arising out of the relocation of the children to Christchurch. Such updating affidavits are clearly contemplated procedurally in M v M (supra).

[45] It seems to me the best approach to adopt is to reserve leave to all counsel to file a consent memorandum (if they disagree they can set out within that memorandum their respective stances) in this court no later than Wednesday 20 February 2002. That memorandum should deal with :

[a] Whether the appeal is ready to proceed.

[b] Whether the parties see a merit in adjourning it to a later date.

[c] Whether a s 29A update is required and if so on what issues and how long that will take.

[d] Whether any parties seek leave to file a short updating affidavit.

[47] That memorandum should be marked for my attention. In conjunction with Fisher J, the Executive Judge, I will then make appropriate directions on those issues if counsel seek such directions.