D v KB HC Hamilton Ap108/00

[2001] NZHC 323

IN THE HIGH COURT OF NEW ZEALAND

HAMILTON REGISTRY

AP108/00

BETWEEN               [D]
      Appellant

AND   [KB]
      Respondent

Hearing:   26 April 2001

Counsel:                    E Jamieson (for appellant)

J Peters (for respondent)

E Dawe (for child)

Judgment:                  2 May 2001

RESERVED JUDGMENT OF HAMMOND J

INTRODUCTION

[1] On 5 October 2000, in the Family Court at Hamilton, Judge Brown awarded custody of an 8 year old girl — [SB] — to the child’s father, Mr [D]. The Judge declined an application that Mr [D] be allowed to take [SB] to Australia to live with him there.

[2] Miss [KB] has accepted the custody decision. Mr [D] does not accept the decision of the Judge, as to relocation. He now appeals that issue to this Court.

BACKGROUND

[3] Much of the background evidence is now of little direct relevance, given the resolution of the substantive custody issues by the Family Court Judge. However, the general context does have distinct relevance to the limited appeal which is now before me.

[4] Miss [KB] suffers from serious long-term mental illness. She has had a number of hospitalisations with diagnoses varying from schizophrenia, psychotic depression and schizoid personality. At the time of the Family Court hearing Miss [KB]’s consultant psychiatrist, Dr H Lombard, reported that it had become clear that “[Miss [KB]] suffers from a severe bi-polar mood disorder which causes her to also be psychotic during illness episodes”.

[5] Miss [KB] has two children. Her first child, [M] (now 22 years old) was removed from Miss [KB]’s care when she was about 2 years old. She was placed by the Department of Social Welfare with Miss [KB]’s mother. Not long after that Miss [KB] was charged with the attempted murder of her grandmother. It seems to have been accepted in the Family Court that Miss [KB] was found not guilty on the ground of insanity. She then spent some time in Tokanui Hospital, for psychiatric treatment.

[6] Miss [KB]’s second child, [SB], was born to her on 2 June 1992, out of a relationship with Mr [D]. This relationship ended when [SB] was nearly 5 years old. Miss [KB] and Mr [D] had by then lived together for three or four years. Miss [KB] was periodically psychiatrically unwell during the time she and Mr [D] lived together.

[7] After Mr [D] and Miss [KB] separated, [SB] remained with her mother. But she saw her father generally once a week for a day in the weekend, but not overnight.

[8] In late 1997 there were commenced a series of proceedings and applications between the parties. Miss [KB] believed that Mr [D] was planning to move with his mother and stepfather to Queensland, and to take [SB] to live with them there. There was doubtless some force in that fear, for ultimately there was an outright application by Mr [D] to effect that end.

[9] By the end of 1998 Mr [D] had taken [SB] to his parents’ home. He obtained ex parte interim custody orders, and a protection order against Miss [KB]. That protection order was later discharged.

[10] [SB] has not returned to live with her mother since that time. Initially she remained with her father at his mother and stepfather’s home in Hamilton. She continued to attend Woodstock School. Then, at the beginning of 2000, Mr [D]’s father died. Mr [D] purchased his brother’s shares in their father’s home at Matamata from them, and moved to live there. Miss [KB] refused to agree that [SB] should go to school in Matamata.

[11] The status quo is, and has been therefore, for some time now that [SB] has been living with her grandparents during the school week, and spending the weekends with her father in Matamata.

[12] Up until February 2000, Miss [KB] was able to see [SB] at Woodstock School. But the school stopped this visiting because of what it perceived to be inappropriate behaviour on Miss [KB]’s part. Supervised access at Barnardos was then arranged on a fortnightly basis, on a Saturday. It is on that basis that Miss [KB] has been able to continue to see [SB] over the last few months. An interim protection order was granted to Mr [D] and his parents, and will be made final, because it will not be opposed.

THE FAMILY COURT DECISION

[13] In the Family Court the psychologist appointed by the Court (Ms Orr) had readily concluded that Miss [KB] was “too unstable in her personal psychological and family life to be available to [SB]”. She considered there were significant risk factors to [SB] in the situation which had arisen. She recommended only supervised access. Miss [KB] sought and obtained a second psychologist’s opinion from Ms Cameron which, generally speaking, supported Ms Orr’s conclusions.

[14] Against that, quite unsurprisingly, the Judge found “that the case for Mr [D] having custody is unarguable”. He considered there to be a “reality of long term chronic mental illness” afflicting Miss [KB]. He said, “that illness, as I experienced it, can on occasions rob Miss [KB] of the ability to think straight”.

[15] The Judge was realistic too, about Mr [D]. He said that Mr [D] “has precious little to show for the 35 years of his life”. Mr [D] has had alcohol and gambling problems, but he has actively tackled and addressed them. He has had a long term ankle injury which had made him an ACC beneficiary. The Judge found that, to Mr [D]’s credit, he “wants to work in the caregiver type of work for which his history as a hospital orderly equips him and which he enjoys”.

[16] The Judge acknowledged that “the question whether Mr [D] should be able now to take [SB] to Australia to live is vastly more difficult”. He noted that Mr [D] had wanted to go to Queensland for some time. So had his mother and stepfather. Mr [D]’s stepfather has arthritis, and the Judge concluded that a further significant reason for the desire on the part of Mr [D] and his parents to go to Australia “was a wish to have distance from Miss [KB]”. As matters stood in the Family Court, Miss [KB] asserted that if [SB] went to Australia, “she [would] go to [live there]”.

[17] As to the law, the Judge said:

“It is easier to state the law in this kind of issue than to apply it: while the law’s central proposition is child focused, issues like the present are ‘lose-lose’ options for children and often in reality require the Court to choose on behalf of the child the lesser of two evils.”

[18] The Judge recited certain of the standard authorities (including Stadniczenko v Stadniczenko [1995] NZFLR 493 CA). He then came to the conclusion that, “by a narrow balance . . .it is not in [SB]’s best interests for her to go to Australia at this stage of her life”.

[19] The Judge’s given reasons were that he considered there to be a significant and literal risk to [SB]’s life situation if Miss [KB] followed [SB] to Australia. For, the Judge found that in New Zealand “Miss [KB]’s health situation is carefully known and monitored”. There would be no safeguards in Australia and “the situation could degenerate rapidly”. Secondly, the Judge had taken the opportunity to meet with [SB] and her counsel in Chambers. He was of the view that [SB] had no strong view one way or the other, on residence. Thirdly, Mr [D]’s plans for Australia were, in the Judge’s view, “relatively tentative”. Mr [D] admitted the possibility of returning to New Zealand if he was unable to find suitable employment. “The real issue for him is probably his mother and stepfather’s desire . . . to live in that country”. For those reasons the relocation application was declined.

FURTHER EVIDENCE ON THE APPEAL

[20] Since the Family Court hearing (as it so often happens in cases involving the custody of children) Miss [KB] has changed her position somewhat. She now accepts that if Mr [D] and [SB] go to live in Australia, she will not be able to live there.

[21] Further, and not without some misgivings, I allowed (strictly limited) further evidence to be adduced, on affidavits, on the appeal. Essentially, this evidence goes to possible assistance in the mental health field for Miss [KB], if she were to go to Australia. As it transpires that has become of less significance, now that Miss [KB] has evinced an intention not to remove permanently to that country. I also allowed, as a second broad category, further evidence from Mr [D] as to the prospects of employment for him on a resettlement in Australia. Thirdly, Mr [D] deposed to a suggested escalation in the level of conflict between himself and Miss [KB].

[22] When the appeal was called before, me both Mr [D] and Miss [KB] and Mrs [A] were present in Court. It then transpired that counsel wished to cross-examine these persons on their affidavits, although formal notice had not been given. I was concerned about that. But, given that the ground has moved somewhat as to the facts since the matter was considered by the Family Court Judge, in the exercise of my discretion and to see that this matter is fairly and appropriately dealt with, I felt it best to receive that evidence.

[23] In the result, sixteen pages of Notes of Evidence were taken. Most of that evidence went to the now circumstances of the parties.

THE PRINCIPLES APPLICABLE TO APPEALS OF THIS CHARACTER

[24] Under the recent amendment to the Guardianship Act, appeals to this Court are appeals by way of rehearing under s 76 of the District Courts Act 1946. Hence an appeal of this character is not a de novo hearing, as was the former law. Accordingly, the usual principles pertain: this Court has to be convinced that the Judge in the Family Court was wrong. This is a general appeal and it may extend to fact as well as law, although any advantages that the Family Court Judge may have had in seeing and hearing witnesses has to be borne in mind. That is a matter of no little consequence in a Family Court appeal. The onus is on an appellant to show that the decision is wrong (see generally, Swayne v Lush [1999] NZFLR 49).

[25] All of that said, the circumstances before me are not precisely as they were before the Family Court Judge. Sometimes the changes in circumstances may be of such an order that a Judge, on appeal, may well be justified in a custody case in remitting the matter to the Family Court for a rehearing. It is no part of the function of this Court, sitting on appeal, to become a substitute Court of first instance. Whether this Court should take that step is always a difficult matter, because it will involve a further hearing in the Family Court and the related trauma and expense for the parties. In any event, in this case I have taken the view that this case is not one which need not be remitted for a rehearing.

THE APPLICABLE LEGAL PRINCIPLES

[26] It is common ground that in cases concerning custody and access of children and the general welfare of children the first and paramount consideration is the welfare of that child (Guardianship Act 1968, s 23).

[27] Secondly, the Court must, to the extent that the wishes of a child are able to be ascertained, take into account those wishes to such an extent as the Court thinks fit having regard to the age and the maturation of the child (Guardianship Act 1968, s 23(3)).

[28] Thirdly, as the Judge did in the Family Court, all counsel before me referred to Stadniczenko v Stadniczenko [1995] NZFLR 493 (CA). There, the Court of Appeal noted that subject to the overriding principle in s 23 “the rights of the custodial parent to pursue his . . . 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 . . . they may also be important considerations in their impact on the welfare of the child”. (Italics [emphasis] added).

[29] Fourthly, both counsel referred to two articles in the professional literature one -by John Caldwell “Parent Relocation Disputes - The New Zealand Caselaw” (1997) BLFJ 201; and an article. by Green DCJ published in the Family Law Conference Papers Vol. 1 NZLS 95, 133. In the latter article Judge Green summarised some of the important factors in relocation cases as being:

•   The broad circumstances of each parent.

•   The quality of the relationship of the child with his or her parents.

•   The emotional health of the primary caregiver if forced to stay, and the nature of the support system available for that parent in the present situation.

•   The predicted lifestyle overseas and other circumstances.

•   Whether the proposed move is in the nature of the return.

•   The historical point between the parties (particularly if violence is a factor).

•   Whether there have been access difficulties in the past and to what degree the child has been exposed to teachings between the parents.

•   Predicted access arrangements.

•   The age of the child.

•   The presence or absence of extended family in both places of residence and the proposed place of residence may also be of significance. Historical involvement with extended family may also need to be examined.

THE ARGUMENTS IN THIS COURT

[30] Ms Jamieson pressed on me that the further evidence shows that the Judge’s conclusion that there is a risk if Miss [KB] was in Australia from lack of mental health support, is not now accurate. Ms Peters, responsibly, accepted that argument.

[31] Ms Jamieson also argued that what she termed “ongoing safety issues and conflicts” have “not decreased but escalated”. Ms Peters submitted that the level of conflict between Mr [D] and his parents on one hand and Miss [KB] on the other, has not escalated to an inappropriate level. I accept that in February 2001 there was an incident which resulted in Mr [D] applying for and obtaining a protection order against Miss [KB]. I also accept that it was an isolated incident triggered by an episode of ill health and Miss [KB]’s over-reaction to a lack of telephone calls from [SB]. I accept Ms Peters’ submission that the reality is that there is now little opportunity for the type of conflict and interaction which predated the Family Court hearing.

[32] As to [SB]’s wishes, the Family Court Judge had interviewed [SB] and felt there was little real assistance to be gained from her, as to her wishes. Ms Dawe had also subsequently met with [SB]. Ms Dawe was inclined to think that the child had expressed a wish to go to Australia. But as I said during the hearing, that has to be received with real caution in the case of a 9 year old. Common sense suggests that quite apart from whatever may have been said to her by Mr & Mrs [D] and her father on this subject, an Australian trip doubtless presents as something of an “adventure” at this stage of [SB]’s life.

RESOLUTION

[33] It strikes me that the relevant considerations in this case are fundamentally pragmatic. Mr [D] owns his own home in Matamata. It is mortgaged. He has trouble getting work in Matamata. He would like to move on to another town. If he could not stay in Matamata, he says he would consider going to Wellington.

[34] Miss [KB] also owns mortgaged property. But her financial circumstances would not permit her to remove herself to Queensland on a permanent basis.

[35] If [SB] was in Queensland, neither party has the wherewithall to support a respectable degree of trans-Tasman, travel, with [SB]. That position is likely to prevail for several years yet, whatever the long-term prognosis may be.

[36] I am no more convinced than the Family Court Judge was, that Mr [D]’s prospects of long term employment in Queensland are better than they are in New Zealand.

[37] The trauma of an extensive family relocation, and severance from a known environment are therefore problematic for [SB].

[38] If [SB] were to remain in New Zealand, the proposal is that she would move to Matamata to live with her father, as was originally envisaged. Ms Peters said (I think with some force) that the geographical distance between Matamata and Hamilton, combined with the conditions imposed by the protection order and the continuation of the order for supervised access, would provide adequate protection for [SB], Mr [D] and his mother. Indeed, access could take place more frequently and would be financially manageable. Managing the logistical problems involved in getting [SB] backwards and forwards across the Tasman in fact would involve more communication and more difficulty and there would be less need for direct communication if [SB] is in New Zealand. And looking further ahead, when supervised access is able to be dispensed with, a more normal relationship between [SB] and her mother could be resumed. Miss [KB] has ongoing monitoring and mental health support in New Zealand.

[39] It has weighed heavily with me that [SB] should not “lose” her mother. The psychologists who gave evidence were clear that this would be detrimental to [SB]. If the contact between [SB] and her mother did diminish even further, as Ms Orr put it, [SB] “could well end up idealising her mother either positively or negatively” because she would not have the information available to her to form a view of her own mother, and to have a relationship with her. Sooner or later this is something that [SB] is going to have to come to terms with. At the moment she is described as “reserved and watchful” with Miss [KB]. To put this another way, it is in [SB]’s interests that she sees her mother, and all parties before me accepted this. It is also in Miss [KB]’s distinct interest, from a mental health point of view, that she not be distanced any further from her child. This is a relevant consideration, although it is not by itself dispositive.

[40] In the result, I am not at all impelled to a different conclusion from the Family Court Judge, although for slightly different reasons (which turn on the facts as they now stand).

[41] The appeal will therefore be dismissed. The appellant and respondent are legally aided. Ms Dawe is entitled to her costs from the fund; no order for costs is therefore necessary for her.

Appeal dismissed.