DN v An
[2021] NZHC 1093
•17 May 2021
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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2020-404-1733
[2021] NZHC 1093
UNDER the Care of Children Act 2004 IN THE MATTER
of an appeal against the decision of Judge K Muir in the North Shore Family Court dated 7 August 2020
BETWEEN
DN
Appellant
AND
AN
Respondent
Hearing: 23 February 2021 Counsel:
R Rao for Appellant
C E A Townsend for Respondent S Houghton for Children
Judgment:
17 May 2021
JUDGMENT OF BREWER J
This judgment was delivered by me on 17 May 2021 at 11 am pursuant to Rule 11.5 High Court Rules.
Registrar/Deputy Registrar
Solicitors:
Inder Lynch (Manukau) for Appellant Urlich Milne (Auckland) for Respondent
DN v AN [2021] NZHC 1093 [17 May 2021]
Introduction
[1] DN and AN are the parents (father and mother, respectively) of two children, ZN, a girl aged eight years, and ON, a boy aged five years. DN and AN are separated.
[2] On 31 January 2020, the Family Court made orders by consent giving effect to an agreement by DN and AN as to interim contact which permitted DN to have unsupervised contact with the children as follows:
(a)Week 1 from Thursday after school until Sunday 11.00 am.
(b)Week 2 from Friday after school until Sunday 11.00 am.
[3] DN applied to the Family Court seeking a shared care order with either a 7/71 split or a 2/2/5/52 split of care. AN opposed the application and contended that she should have a day-to-day care order in her favour and that DN’s contact with the children should remain the same.
[4] On 7 August 2020, Judge K Muir made a final parenting order with the following orders and directions:3
(a)[AN] will have the role of providing day to day care of the children.
(b)[DN] shall have contact with the children as set out below.
School Term Time
(c)A fortnightly cycle as follows:
(i)Week one from Tuesday after school until Wednesday morning with the children to be collected from and delivered back to school; and
(ii)Week one from Friday after school until start of school on the following Monday with the children to be picked up from and returned to school; and
1 That is, where the two parents would have custody on alternating weeks.
2 That is, where the first parent would take two days, then the second parent would take two days, then the first parent would take five days, and then the second parent would take five days.
3 DN v AN [2020] NZFC 5787 at [97].
(iii)Week two from Thursday after school until Friday morning with the children to be picked up from school and returned to school.
Term School Holidays
(d)Term school holidays will be shared equally as follows:
(i)The children shall remain in the care of the parent who has them on the Friday night immediately before the start of any term school holiday period for the week through until 9.00 am on the following Saturday morning.
(ii)They shall then be in the other parents care through until
9.00 am on the final Saturday of the term school holiday.
(iii)They will then return to the parent who had them at the start of the term school holiday with the pattern of care to progress in accordance with the fortnightly school term time arrangements from then on.
Summer School Holidays
(e)Summer school holidays will be shared equally as follows:
(i)The children shall have alternate weeks with each of their parents.
(ii)In 2020 and in every even numbered year [DN] shall have contact with them during the first week of the summer school holidays commencing on the last day of the school term through until 9.00 am on the Saturday at the end of the first week when they shall be returned to [AN’s] care.
(iii)Contact will then alternate until the end of the summer school holidays on a week about basis.
(iv)In 2021 and in every odd numbered year the children shall be in the care of [AN] from the last day of the school term through until 9. 00 am on the Saturday at the end of the first week when they shall be delivered to [DN].
(v)Care will then alternate weekly until the end of the summer school holidays.
(vi)The parent who the children are with during the last week of the summer school holidays shall return them to school on the first day of the new school year and the term time care and contact pattern will commence from then on week one if they are returned to school by their mother and on week two if they are returned to school by their father.
Orthodox Christmas
(f)Orthodox Christmas (7 January) shall be shared alternating each year as follows:
(i)[AN] is to have the children from midday 6 January to
11.00 am on 7 January.
(ii)[DN] to have them from 11.00 am on 7 January through until
11.00 am on 8 January in 2021.
(iii)That pattern of care is to alternate each year.
Conditions
(g)The following conditions apply:
(i)There is to be no questioning of the children about the other parent.
(ii)There is to be no criticism of, or derogatory remarks about the other parent or their family or friends.
(iii)There is to be no involvement of the children in adult issues.
(iv)Changeovers that are not during term time are to take place at Burger Fuel, Windsor Park, or at another place by agreement between the parties.
(v)There is to be no emotional blackmail of the children or attempts to influence them in any way.
(vi)There is to be no physical discipline of the children.
(vii)Neither parent will allow photographs of the children to be posted on social media.
(viii)The children are to sleep in their own beds.
(ix)The children are not to be used to convey messages for the parents.
(x)There is to be no discussion regarding extracurricular activities with the children, before discussing/agreeing them with each other.
(xi)All communication between the parties occur by way of email or My Family Wizard.
Counselling
(h)The parties’ agreement to communication counselling under s.46G is recorded and that counselling is to be initiated as soon as possible. I approve funding for an initial 12 sessions. The counsellor is to be provided with a copy of this decision so that they are aware of the dynamics in this relationship. It is noted that [AN] has agreed to attend
on the condition that she will not be required to be in the same room or session as [DN].
[5] DN now appeals Judge Muir’s decision. He continues to seek a parenting order providing for a shared care arrangement for the children.
[6] This is a general appeal. I must consider the case afresh and, if my opinion differs from that of Judge Muir, then I must give judgment in accordance with my opinion. I will bear in mind, when considering the weight to be given to the Judge’s reasoning, that Judge Muir had the benefit of hearing oral evidence from DN and AN and to make assessments accordingly.
[7] Of course, the onus is still on DN to demonstrate that Judge Muir’s decision is wrong in some manner such that I should form a view different to that of the Judge.
The Family Court judgment
[8] Judge Muir faced a situation which only too often confronts Judges of the Family Court. His Honour had to decide how parents should share the care of their children so as to promote the children’s welfare and their best interests, where the relationship between the parents has completely broken down.
[9] Judge Muir went through the evidence given by DN and AN. He formed a negative view of DN, albeit not a completely negative view:
[20] I am particularly concerned about [DN’s] lack of insight into his own behaviour and the impact that his violence has had on [AN] and the children.
…
[23] [DN] was frustrated by the Court’s orders that contact with his children be supervised. To his credit the reports from Therativity, who were the independent contact supervisor, were positive and that was acknowledged by [AN]. However he said, on more than one occasion, that he had been denied contact with his children for two years, which was not true.
…
[26] When he was asked what he had learnt from the Living Without Violence Programme he was able to speak in general terms about physical and psychological violence, but his responses indicated that he did not consider that either of those descriptions related to him or his relationship with [AN].
It appeared that he had few personal insights, despite having completed a 20- session programme.
[27] To his credit, although he has not yet completed a Parenting Through Separation Programme, he agreed that he would complete such a programme. He also agreed, after some hesitation, that it was appropriate that psychological counselling be arranged for [ZN] and that he will pay half of the cost.
…
[38] When cross examined about the discussion with [ZN] he again described the physical effects of the stress that he had gone under and steps he had taken to resolve that stress. I find he is still both angry and distressed at what he still regards as unacceptable limits on his contact with the children.
[10] Judge Muir formed a more favourable view of AN, albeit not a wholly favourable view:
[34] She said that [DN’s] completion of the non-violence programme was the main reason that she had agreed to contact being unsupervised. She also acknowledged that the concerns she had previously held about his erratic or inconsistent commitment to contact with the children had been resolved since the new orders were made.
[35] She lacks insight on the issue of changeovers saying, “absolutely no conflict arises out of that in my view”. In fact, the conflict must be palpable. The parties are unable to talk to each other and apparently, they do not even look at each other. The children must not be regularly exposed to that conflict.
…
[41] On the whole, where the evidence conflicts, I find [AN] to have been a reliable and generally honest witness, willing to make appropriate concessions, and I prefer her evidence.
[11] Judge Muir went on to discuss the law in the context of the evidence he heard. In my view, the following passages capture the Judge’s findings:
[58] I note from s.4(2)(b) that I may only take account of conduct by the children’s parents to the extent that conduct is relevant to the children’s welfare and best interests. I find the conduct that I have detailed above is relevant. There are elements of inappropriate power and control in [DN’s] violent behaviour. His anger and his own sense of grievance continues to adversely impact his children who are all too aware of his views. He is continuing to act with disregard to the orders that have been made as to conditions of contact.
…
[62] Section 5(a) with its emphasis on the requirement that the children’s safety be protected and that they be protected from all forms of violence looms
large in this case. While a decision has already been made that the children are safe in the unsupervised care of their father, I must nonetheless consider the safety implications of the request for a full shared care arrangement with equal sharing of the children between the parents. The facts in this case satisfy me on balance of probabilities that [DN] has long exercised an inappropriate level of power and control over [AN]. There is evidence that that inappropriate dominance has been and is continuing to be exercised in relation to [ZN] in particular.
[63] I am particularly concerned about the fact that there is still no real acknowledgement or acceptance by [DN] of the damage that his conduct has caused. He said he had apologised but such apologies as were in his affidavit evidence were conditional, essentially seeking to apportion blame to [AN]. He sought to deny or excuse the violent language he had used and the threats, by explaining that they were occurring because of the situation he was in.
…
[67] It is encouraging that [DN] completed his full programme in the Living Without Violence Programme. It is disappointing that he seems to have drawn few lessons from that. His agreement to participate in communication counselling and to allow [ZN] to be helped through counselling and to meet half the cost of that counselling is also encouraging.
…
[73] It is however important that the parties comply with the conditions in the order and that they genuinely respect the mutual rights and responsibilities that they each have as guardians. These parents will need to learn to communicate constructively for the sake of [ZN] and [ON]. They need to learn not to involve their children in their disputes.
[12] Judge Muir took into account, as he had to, the views of the children. Of particular concern was evidence that ZN was stressed by the conflict between her parents, felt an obligation to be even-handed, and therefore favoured spending more time with her father.
[13]Judge Muir found:
[74] It is clear that [ZN] and [ON] adore both of their parents. Lawyer for the children has met with them on at least four occasions now. [ZN] in particular very much enjoys her contact with her father. [ZN] has consistently said that she feels safe with both her mother and her father and feels happy in the care of both.
[75] [ZN] was all too conscious of the intense conflict that occurred between the parties when they were together. It is clear from the reports by lawyer for the child that [ZN] has consistently felt the pressure of involvement in her parent’s dispute. Her lawyer recorded, in a report filed in January 2020, that [ZN’s] views suggested a sense of her bearing responsibility for a decision needing to be made. In her meeting with the children in January, [ZN] was
very clear about wanting to spend an equal amount of time with her father. She described her relationship with her father’s new fiancé in positive terms. [ZN] thought that seeing both of her parents the same amount of time would mean that she was no longer “stuck in the middle”.
…
[81] The strong view expressed by [ZN] is a concern. I have considered the possibility that [ZN’s] views are a result of an independent desire for equity between her parents or a fervent wish not to see her parents involved in the serious conflict that they have displayed in her presence in the past. However, [ZN’s] views on this issue are closely and inappropriately aligned with those of her father. Despite his denial I find on balance of probabilities that he has influenced those views and her instructions to her lawyer and to some extent deliberately.4
[82] I also find on balance of probabilities that [DN] has breached the condition in the current contact orders that adult issues not be discussed with the children on more than one occasion. I am not persuaded that there have been significant breaches by [AN] but she is not blameless. It is unfortunate that she has been unable to be more communicative at changeovers. The mutual hostility that is displayed by both parents pointedly ignoring each other is very damaging for these children. The agreed s.46G counselling may assist and I can minimise contact between the parents at changeovers.
[83] I was unable to understand the rationale behind [DN’s] emphatic view that contact should be shared on an exact 50/50 basis. I was left with the view that this wish does not arise out of any belief that the children’s best interests require it, but rather out of a sense of right or entitlement on his part. He still believed he was wrongly denied contact with his children.
[14] In his analysis of the evidence, Judge Muir held:
[86] [ZN’s] wishes are important. However, I have found they are in good part a result of the power, control or influence that her father has exercised over her.
[87] If I significantly increase the amount of time the children spend with their father or adopt a “shared care approach”, in circumstances where he as yet has no insight into the impact of his behaviour on the people that he is in close relationships with, I will be exposing them to more opportunity for harm to occur.
…
[90] On balance of probabilities I find that as in A v G case the well demonstrated level of conflict and mistrust between these parents and the lack of insight into the cause of that conflict means an arrangement for shared care or even parallel parenting is impracticable.
4 Examples include the recent threat to relocate to Sydney, his claim to [ZN] that he nearly died when his contact was limited and the fact that [ZN] had effectively been told by her father what to say to her lawyer “… we need to have more days at our home”.
[91] The level of conflict in this case is very high and the hostility between these parties is a continuing concern. Because of the relationship of power and control that I find arose here as a result of [DN’s] conduct, I am concerned that a shared care status may result in an attitude of dominance or triumphalism by him. Parallel parenting arrangements may well be appropriate in some situations of high conflict, but I find, on balance of probabilities, that a day to day care order in [AN’s] favour, with continuing generous contact to [DN], will better protect the children from continuing conflict and from engagement in their father’s adult concerns.
[15] Judge Muir accepted that DN is a loving father who is capable of change and who would not want to see his children harmed in any way. The Judge said it is vitally important that DN continue to have frequent good quality contact with them. It was for that reason the Judge made his directions as to the sharing of school holidays. The Judge felt that this would reassure both DN and ZN that ZN’s wishes had been heard and addressed.
DN’s appeal
[16]The basis of DN’s appeal is set out in Mr Rao’s written submissions:
5.The appeal has been brought on the basis that the decision in the Family Court was wrong in both fact and law.
6.The broad themes of the appeal, as particularised in the specific points that have been raised, are that the learned Judge-
(a)Found (without sufficient evidential basis to do so) that an arrangement for shared care or parallel parenting would be impracticable in the circumstances.
(b)Wrongly concluded that any appreciable increase in the time spent by the children in the appellant’s care would lead to an increased risk of harm.
(c)Failed to take sufficient account of the views of [ZN] that were consistently supportive of some form of equal care arrangement.
(d)Placed excessive weight on allegations of historical family violence.
7.The fundamental point on appeal is therefore the correctness of the decision to decline to implement a shared care or parallel parenting arrangement, and the other points relate to individual considerations in the overall evaluative exercise.
8.The appellant’s position is that on the totality of the evidence adduced in the Family Court, the welfare and best interests of the children are
best served by instituting a shared-care arrangement in which time with the children is shared equally, or thereabouts, between the parents.
[17] Mr Rao submits that, on the evidence, the Judge should not have found that an increase in time spent by the children in DN’s care would expose them to more opportunities for harm. He points out that the Judge’s order providing for the children to spend equal time with the parties during holidays, and to spend five nights out of every 14 with DN during term time, is incompatible with that assessment.
[18] Mr Rao submits that the Judge was wrong to criticise DN for seeking an equal division of parenting time. Mr Rao referred to evidence given at the hearing by DN that it was not so much the equal division of time that concerned DN but the opportunity to share the children’s lives, including during the school week:
32.The evidence does not support any particular obsession on the part of the appellant with strictly equality of time. The exchanges referred to above instead reveal an understandable desire for a re-balancing of the children’s time with him to allow for a proportion of time to be spent during the week to allow for greater involvement in the children’s week-day lives. This is a laudable intention that was not really recognised in the judgment.
[19] Mr Rao submits that the Judge should not have found that shared care would be impracticable.
[20] In Mr Rao’s submission, the main way in which the tensions between DN and AN manifest themselves is when they have to exchange the children with each other. That is when the children are stressed. Mr Rao went on to submit:
40.But having identified and removed that potential source of conflict, it is not clear why his Honour still considered a shared care arrangement to be unworkable in practical terms, bearing in mind that it would only require a modest evolution of the parties’ previous arrangements.
41.The practical pre-requisites for a shared care arrangement were (and remain) all present. The parties live in close proximity on Auckland’s North Shore, permitting the Court a considerable degree of latitude in crafting suitable parenting arrangements. The parties’ proximity also enables the children to maintain schooling, friendships, leisure and other extra-curricular activities between homes. The parties also enjoy flexibility in their employment, which means that transportation and travel for the children is not a particular issue of concern. Thus many
of the ingredients for a successful shared care arrangement were, and remain, present.
[21] In Mr Rao’s submission, extending DN’s contact with the children to a 50/50 basis could not, logically, exacerbate the tensions inherent in the arrangement directed by the Judge.
[22] Judge Muir, as he was obliged to do, considered the principles relating to the welfare and best interests of the children as set out in s 5 of the Care of Children Act 2004 (the Act). Judge Muir considered that his order would meet the s 5(e) principle that the children should continue to have a relationship with both their parents. He also considered his order met the s 5(f) principle that the children’s identities should be preserved and strengthened.
[23] Mr Rao’s submission is that the Judge did not appear to have considered the advantages of a shared care arrangement for the children in the light of the s 5 principles:
46.… Those benefits are potentially significant, and include –
(a)Maximising the continuity of the children’s relationships with both parents;
(b)Allowing each parent to make significant and genuine contributions to the upbringing of the children;
(c)Enabling the children to grow up with the benefit of meaningful input from both parents, thereby becoming well- rounded and better able to deal with the vicissitudes of daily life;
(d)Permitting both parents to continue parenting the children in a normal day-to-day living type situation, rather than confining the appellant to the arguably artificial structure of “contact”;
(e)Allowing the equitable and genuine distribution of the responsibility for day-to-day care between both parents;
(f)Avoiding the feeling on the part of one parent of being shut out from the children and being a mere visitor to them, which doubtless is felt by the children as well.
[24] One outcome of the order made by the Judge, Mr Rao submits, is that DN has been relegated to the role of a “weekend and holiday father”.
[25]Mr Rao addressed Judge Muir’s treatment of the views expressed by ZN:
59.The primary issue with Judge Muir’s assessment of [ZN’s] views is that it glosses over [ZN’s] history of expressing strong views in support of equal shared time for at least a year prior to the hearing, including at times when the appellant was only having supervised contact and therefore in no position to exert any real influence over her.
[26] Mr Rao’s further submissions on this point include:
62.Furthermore, whilst the appellant is castigated in the judgment for his fairly transparent attempts to influence [ZN’s] views, no real cognisance appears to have been taken of the fact the respondent also appears to have spoken directly with the children regarding these issues.
63.Counsel refers here to statements in lawyer for child’s report of 30 January 2020, not referred to in the judgment, that “[ZN] thought both of her parents had spoken to her about what they wanted and they both “literally want the same thing, to spend the same time with us””. She is also reported to have said “Both her mum and her dad have told her she is stuck in the middle”. Yet despite a brief acknowledgment in the judgment that the respondent was not “blameless” the consequences of such conduct appear to have been sheeted home to the appellant only.
(emphasis in the original)
[27] Mr Rao’s submissions also address Judge Muir’s findings arising from the history of family violence. He places particular emphasis on the fact that the parties reached the interim agreement as to DN’s contact with the children which was ratified by the Family Court on 31 January 2020:
75.… That document recorded, inter alia, the parties’ agreement that –
(a)The allegations of violence were in relation to the adult dynamic;
(b)There had never been any suggestion that the children had been physically abused; rather the concern had been around exposure to conflict and anger;
(c)The parties had been separated since March 2019, the allegations are historic, there is no prospect of reconciliation or the children being exposed to conflict particularly give the Respondent’s undertakings that been tendered in consideration of the protection order proceedings being discontinued.
(d)The children had never expressed a view that they felt unsafe with their father and had only expressed a wish to spend more time with him.
[28] Mr Rao submits that because the Family Court, in ratifying the agreement of the parties as to interim contact, was satisfied that allegations of family violence were historic and did not give rise to any concerns under s 5(a) of the Act (the mandatory requirement that a child’s safety must be protected from all forms of violence), Judge Muir was in error in permitting those allegations to be re-opened at the hearing before him. This resulted in Judge Muir essentially re-determining the allegations.
AN’s submissions
[29]AN supports the Judge’s decision. In particular, she submits:
(a)The Judge was entitled to find that DN’s history of family violence and lack of insight into the impact of his conduct on the children made shared parenting problematic;
(b)The parenting order made by the Judge provides for frequent and significant care by DN.
Lawyer for the children
[30] The children were represented at the hearing before Judge Muir by counsel who has since been appointed to the District Court Bench. Ms Houghton represented them before me.
[31] Ms Houghton met with the children (separately) on 18 February 2021 to talk to them about the appeal. As to ON, Ms Houghton reports:
25. I formed a view that [ON] preferred not to have to engage in discussion with me regarding the topic of parenting arrangements. I persisted to a reasonable extent in trying to engage him in discussion that would enable me to provide this Court with some information regarding his views with respect to parenting arrangements but all he said relating to the topic was that wanted to see his mum and his dad all the time.
[32] As to ZN, Ms Houghton reports:
29.The specific messages [ZN] would like me to communicate to her parents and decision makers are as follows:
(a)She does not want to feel that she is “tilting to one side” (meaning one parent’s side) when it comes to the days she has with each parent, because the other parent will then feel unhappy about that.
(b)She wants the parenting arrangements to be equal because that will feel fair to her.
(c)She believes dad will feel happier if her parents share her care equally. That would make dad feel happier but even if that happens, that will not work to make mum and dad happy with each other. [ZN] thought it would then be up to her to try and make her dad happy, but she doesn’t know if that will ever be possible or for her parents to ever be happy with each other. She felt she was the only person in the family who had to try to make everything better.
(d)If it were decided that there would be no change to the parenting arrangements, [ZN] told me that she would just say “no”. She repeated to me that she would say “no, no, no”. She said she would just have to do something to make it different. She said she would make sure she stayed three days at dad’s, four days at mum’s, four days at dad’s, three days at mum’s. She would see how she liked that. She would then talk to her mum and dad about whether she liked it and if she didn’t like it, she would try something else that was equal. She said she would just make sure it happened.
[33] Ms Houghton, having regard to ZN’s consistent history of seeking an equal parenting regime, supports DN’s submission that the Judge did not give real weight to ZN’s views, and should have.
[34] Ms Houghton echoes the submission made by Mr Rao on behalf of DN that the Judge, in considering the s 5 principles, appeared not to consider whether there were advantages to, in particular, ZN moving to an equal shared care parenting arrangement.
[35]Ms Houghton submits:
61.The most significant way [ZN’s] life can be improved and her emotional wellbeing protected is in Counsel’s view, for her parents to urgently find a way to co-exist and share their children in a pleasant manner. [ZN] expressed doubt that that would ever prove possible, but she hopes an equal parenting arrangement will assist. [ZN] described her mother to Counsel as being “sort of easy going” and her father as remaining upset and frustrated at the parenting arrangements not
being “equal”. To leave [ZN] in her current situation, causes Counsel significant concern.
62.[ZN] sees moving to an equal parenting arrangement as the best way to bring about an improvement to her life. She hopes that will make her father feel happier and that that will then reduce the tensions and discord between her parents.
63.She seems astutely aware of the need to try and keep the peace for everyone. She told me about an argument that had occurred between her parents recently when she was in dad’s care unwell. She said an argument had developed about her having a temperature and what medicine she needed. She expressed a view that the argument between her parents had been her fault and she felt she had to fix things afterwards. She expressed significant concern, giving several examples, about having to try and calm adult tensions and to try and find a solution for what Counsel would describe as a dysfunctional co-parenting relationship. It is for the Court to determine, on a consideration of the evidence, the children’s views and the legal principles, whether the current parenting arrangements provide these children with the best possible protection from harm.
[36] Ms Houghton’s concluding submission is:
72.In the alternative, this Court may feel that the best way to assist [ZN] is to leave the parenting arrangements as they are and to conclude proceedings. From [ZN’s] presentation to Counsel, this is the alternative in Counsel’s respectful submission, least likely to protect [ZN] and promote her wellbeing on a long-term basis. The current orders have been in place for six months now and [ZN’s] views as recently expressed to Counsel, speak for themselves.
Discussion
[37] The focus of my examination of Judge Muir’s decision is to assess the best outcome for the children’s welfare and to promote their best interests. Their safety, including their psychological and emotional safety, is the paramount consideration.
[38] DN’s case is that Judge Muir should have decided that this assessment necessarily led to a parenting order providing for shared care on an equal basis.
[39] The immediate difficulty with DN’s case is the history of family violence between DN and AN. I accept that if there were no such history then, in this case, the argument for a parenting order as sought is a compelling one. But there is a history of family violence.
[40] I do not accept the submission that Judge Muir should have regarded that history as spent and not heard evidence about it, nor made his own assessment of it for the purposes of his decision-making. I agree with Ms Houghton’s submission that there is no element of res judicata. The orders made by the Family Court by consent on 31 January 2020 were for a different purpose. Indeed, I am of the view that in deciding whether the children’s safety and welfare would be best served by an equal shared-care parenting arrangement, Judge Muir was required to form his own view of the history of family violence between DN and AN. Otherwise, he would have abdicated his responsibility to give effect to ss 4 and 5 of the Act.
[41] The issues become whether the Judge was entitled to form an adverse view of DN in the context of his application for an equal shared-care parenting order, and, if so, the weight to be given to it.
[42] In my view, on the evidence before him, it was open to the Judge to make the findings he did which were adverse to DN.
[43]I repeat the significant findings before moving to the assessment of weight:
(a)DN lacks insight into his own behaviour and the impact his violence has had on AN and the children.
(b)He gained few personal insights from the 20-session Living Without Violence Programme.
(c)There are elements of inappropriate power and control in DN’s violent behaviour.
(d)DN’s anger and his own sense of grievance continues to adversely impact his children who are all too aware of his views.
(e)DN has influenced ZN’s views, to some extent deliberately.
(f)DN has breached the condition in the then current orders that adult issues not be discussed with the children, on more than one occasion.
(g)DN’s insistence on an exact 50/50 contact share arises out of his sense of right or entitlement, rather than from a belief that the children’s best interests require it.
(h)The level of conflict in this case is very high and the hostility between DN and AN is a continuing concern. There is a concern that, because of the relationship of power and control which arose as a result of DN’s conduct, a shared-care status may result in an attitude of dominance or triumphalism by DN.
[44] As a result of these, and his other, findings, Judge Muir concluded that a day- to-day care order in AN’s favour, with continuing generous contact to DN, will better protect the children from continuing conflict and from engagement in their father’s adult concerns. Mr Rao’s submissions are to the point that, even if the Judge’s findings were open to him, they should not have been given such weight as to lead to the Judge’s conclusion given countervailing factors.
[45] I disagree with Mr Rao’s submission that given the degree of contact with the children ordered by the Judge it is illogical not to give DN the greater contact time he contends for. The Judge accepted that DN is a loving father who is capable of change and who would not want to see his children harmed in any way. The risk to the children comes from the hostility between their parents and DN’s lack of insight into the harm his conduct is causing. Judge Muir had to make his decision looking at the family’s dynamics holistically. In my view, the Judge was right not to take an absolutist approach. This was not a case where DN’s contact with the children should be either nil or equal to that of AN. A nuanced evaluation was required of the Judge.
[46] I do not accept Mr Rao’s submissions that Judge Muir gave insufficient regard to ZN’s wishes and that he ignored DN’s evidence that DN wanted to have a more normal parenting role. The Judge said that ZN’s wishes were important but he found they are in good part a result of the power, control or influence that DN has exercised over her. But it is because the Judge also found it is vitally important that DN continue to have frequent good quality contact with the children that he made the directions as to the sharing of holidays. This reflects Judge Muir taking into account ZN’s wishes.
[47] I accept Mr Rao’s submission that the Judge’s direction that exchanges of the children between their parents take place at neutral environments addressed that potential source of conflict. But I do not accept that because of this, shared care became viable. Exchanging the children at neutral environments only lessened the potential for conflict and did not address the continuing hostility between DN and AN, and in particular did not address DN’s attitudes which give rise to the potential for harm to the children identified by the Judge.
[48] Mr Rao is correct that the Judge did not address the potential advantages of a shared-care arrangement for the children in the light of the s 5 principles. But that is because the Judge had found that shared care, given the dynamics between DN and AN, would put the children at unacceptable risk of harm.
[49]I have considered the potential benefits as submitted by Mr Rao (and quoted at
[23] above). In my view, those benefits would only accrue if DN had insight into his actions and he and AN were prepared to put aside their history in the interests of their children.
[50] I observe, too, that there is no statutory presumption of equal sharing. The Act gives the Family Court the discretion to make orders conducive to the welfare and best interests of the child in his or her particular circumstances.5 There is some caselaw that suggests where there is a great deal of conflict, shared-care arrangements can be challenging, especially when imposed by the courts.6 Judge Muir was alive to this risk.7 Judge Muir concluded that, in these particular circumstances of conflict, shared care would expose the children to continuing conflict and involvement in adult concerns.
Decision
[51] In my view, Judge Muir’s decision carefully considered the best interests of the children given the history and dynamics of their parents’ relationship. The Judge made
5 Care of Children Act 2004, s 48.
6 CR v JS FC Auckland FAM 2008-004-673, 11 April 2011 at [21]; L v A (No 2) (2003) 23 FRNZ
602 (HC) at [57]–[59]; ARG v BKL [2019] NZHC 1514; A v G HC Invercargill, 21 December 2006; M v M FC Taupo FP 069/115/99 13 April 2000.
7 At [89].
a nuanced and evaluative decision which was available to him on the evidence he had heard. It might be that another Family Court Judge would have made slightly different directions, for example in terms of contact during the school week, but I cannot say the Judge was in error.
[52]The appeal is dismissed.
Brewer J