Drake v Drake
[2023] NZHC 2390
•30 August 2023
NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004 AND SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980, THE NAMES OF THE PARTIES IN THIS DECISION HAVE BEEN ANONYMISED AND REFERENCES TO THEIR OCCUPATIONS AND PLACES IN WHICH THEY LIVE HAVE BEEN REMOVED IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2023-443-24
[2023] NZHC 2390
UNDER the Care of Children Act 2004 IN THE MATTER
of an appeal against a decision from the Family Court at [ ]
BETWEEN
MRS DRAKE
Appellant
AND
MR DRAKE
Respondent
Hearing: 21 August 2023 Counsel:
V A Crawshaw KC and B Jefferson for Appellant R S Stannard for Respondent
C A Gelston – lawyer for the child
Judgment:
30 August 2023
JUDGMENT OF RADICH J
Table of Contents
Paragraph
Factual background [12]
Family Court decision [22]
The strength of existing and future bonding. [24]
Parenting attitudes and abilities [26]
Availability for and commitment to quality time with the child [27]
DRAKE v DRAKE [2023] NZHC 2390 [30 August 2023]
Support for continued relationship with other parent [28]
Security and availability of home environment [30]
Availability and suitability of role models and positive and/or
negative effects of wider family [31]
Provision for physical care and help and the material wealth of the parents [32]
Stimulation and new experiences [33]
Educational opportunity [34]
Wishes of the child [35]
Shared care [37]
Parent wanting contact where there is a reluctant primary caregiver [38]
Section 5 considerations [42]
(a)Section 5(a) – Protection of a child’s safety [43]
(b)Section 5(b) – A child’s care, development and upbringing
should primarily be the responsibility of his parents. [44]
(c)Section 5(c) – A child’s care, development and upbringing should be facilitated by ongoing consultation and cooperation
between parents [45]
(d)Section 5(d) – A child should have continuity in his or her care,
development and upbringing. [46]
(e)Section 5(e) – A child should continue to have a relationship
with both of his or her parents [47]
(f)Section 5(f) – A child’s identity should be preserved and
strengthened. [48]
The Judge’s conclusions[49]
Legal principles [52]
Approach to appeal [52]
Care of Children Act 2004 [56]
Leave to appeal [66]
The issues on appeal [67]
Equal shared care as the starting point [69]
Weight accorded to the s 5(d) principle [77]
(a)Competing risks [81]
(b)The status quo principle – factoring in risks to Jethro if he is
required to move [93]
(c)Basing an equal sharing parenting order upon the willingness
or otherwise of a parent to shift [101]
Weight afforded to the child’s views [114]
Cooperation and communication between the parties [127]
The child’s cultural identity [130]
Summary of findings [135]
Reassessment based upon findings [138]
Orders [153]
[1] Jethro Drake (Jethro) is eight years old. He lives with his mother, Mrs Drake (the appellant) in Town A. Jethro’s father, Mr Drake (the respondent) lives in Town B. Mr Drake has contact with Jethro, in Town B, during several weekends each term and during holiday periods.
[2] Mrs Drake applied to the Family Court to vary the parenting order in place so as to reduce the time that Mr Drake spends with Jethro. As a part of his response to that application, Mr Drake applied for Jethro to be placed in his day-to-day care in Town B.
[3] In a decision of 11 April 2023, Judge A S Greig in the Family Court, following a four-day hearing during which the applications were considered, made a new parenting order (the Family Court decision).1 Its essential terms are these:2
(a)From 22 September 2023, Jethro is to be in the day-to-day care of Mr Drake and is to live in Town B.
(b)In the event that Mrs Drake moves to the Bay of Plenty area, then Jethro’s day-to-day care is to be shared equally between his parents – on certain terms and conditions.
(c)In the event that Mrs Drake remains in Town A, then the terms of the present parenting order are to be reversed so that Mrs Drake’s contact with Jethro will be equivalent to the contact that Mr Drake has with Jethro at the moment.
1 [Drake v Drake] [2023] NZFC 2975.
2 At [133].
[4] A primary reason for the Family Court’s decision is a finding that Mrs Drake has negative views about Mr Drake, that Jethro aligns himself with those views, that this is causing harm in Jethro’s relationship with Mr Drake, that the resulting view that Jethro has of his father needs to be changed and that the change is best achieved through the orders that have been made.
[5] Mrs Drake brings this appeal on the grounds that the Judge erred in his approach to key provisions in the Care of Children Act 2004 (the Act) including, in particular,3 the principle that a child should have continuity in his or her care, development and upbringing4 and that the Judge failed to attach sufficient weight to Jethro’s views. Jethro expresses the view that he does not want to move to Town B and that he wants the current arrangements to remain in place.
[6] Mrs Drake seeks to set aside the order relating to Jethro’s relocation but does not seek to set aside the order for shared care, provided that it is Mr Drake who relocates – to Town A.
[7] Mr Drake opposes the appeal, saying that the orders in the Family Court were based on a careful consideration of the evidence and of the statutory requirements under the Act. It is said that the orders are in Jethro’s best interests and mitigate potential risks for him. And it is said that the appellant seeks to elevate the continuity of care principle in s 5 of the Act in a way that would be inconsistent with the holistic view that needs to be taken of the relevant statutory principles.
[8] Ms Gelston, the lawyer for the child, supports the Family Court’s decision. While she accepts that this is not what Jethro has said that he wishes to do, Ms Gelston cautions that care must be taken of the weight to be given to Jethro’s views and submits that the parenting orders made by the Family Court remain in Jethro’s best interests.
[9] In an appeal by way of rehearing such as this, I may only interfere with the Family Court decision if I find it to be wrong; if the Judge has erred. I am particularly cognisant of the fact that, in a case like this in particular, the Judge, sitting in a
3 This is very much a summary of the grounds of appeal which are explained further later in this decision.
4 Care of Children Act 2004, s 5(d).
specialist jurisdiction, has had the advantage of being able to assess the evidence of the parties and of the specialist report writer5 and has interviewed Jethro. Equally, I acknowledge the care taken by the lawyer for the child and I very much respect her work.
[10] However, for the reasons I go on to give, I am satisfied that the Family Court Judge erred in his assessment of the principle relating to continuity in Jethro’s care, development and upbringing and in the weight that was afforded to Jethro’s views.
[11] In the face of the errors I have found, I come afresh to an assessment of the case and conclude that the parenting order requiring Jethro to locate to Town B should be set aside and replaced with an order that Jethro is to remain in Town A. I uphold the Judge’s order for Mrs Drake and Mr Drake to have equal shared care of Jethro – but in Town A.
Factual background
[12] Mrs Drake (a [country]-born [occupation] who lives and works in Town A) and Mr Drake (a [country]-born [occupation] and company director who lives and works in Town B) met in New Zealand in 2009. They started living together in Town A in 2010 and they married in November 2012. Jethro was born on 4 November 2014 in Town A. In September 2015, when Jethro was aged 10 months, Mrs Drake and Mr Drake moved with Jethro to Town B.
[13] On 20 December 2018, Mrs Drake moved back to Town A to take up a new [occupation] position there and Jethro moved with her. He was aged 4 at the time. Mr Drake remained in Town B but continued to have contact with Jethro, both in Town A and in Town B.
[14] In May 2019, the parties separated. They took part in a family dispute resolution process but did not reach an agreement.
5 Dr Madhu Rai, a psychologist who prepared a report directed by the Court under s 133 of the Care of Children Act 2004.
[15] On 23 August 2019, Mrs Drake applied for a parenting order, proposing that Jethro would be in her day-to-day care and that Mr Drake would have contact three weekends each term and for half of each of the holiday periods. In response, Mr Drake applied for an order that Jethro be relocated to be in his day-to-day care in Town B.
[16] In January 2020, Mrs Drake and Mr Drake reached an agreement under which Jethro would live with Mrs Drake in Town A and would have contact with Mr Drake in the ways Mrs Drake had proposed. A final parenting order was made to that effect on 14 January 2020.
[17] Matters between the parties, insofar as the parenting orders are concerned, appear to have been settled during the year that followed. However, during the 2020/21 Christmas holidays Jethro alleged he had been strangled by his father during an incident between them. Mrs Drake complained to the police and Jethro gave an evidential interview but the police found that the threshold for any further action was not met.
[18] However, on 1 April 2021, Mrs Drake applied to vary the 14 January 2020 parenting order. Mr Drake then filed an application for Mrs Drake to be admonished for contravening the parenting order (following the incident referred to in [17] above). At the same time, he applied for Jethro’s day-to-day care and for Jethro to be relocated to Town B.6
[19] The incident referred to in [17] above became the subject of a ‘safety hearing’ before Judge Smith in the Family Court on 22 October 2021.7 Judge Smith found that a confrontation had taken place between Jethro and Mr Drake during which Mr Drake touched Jethro’s neck but that it could not be proven that strangulation had occurred. The Judge observed that the proceeding had been “clouded by the continued animosity between Jethro’s parents” and directed a return to the terms of the 14 January 2020 parenting order on a gradual basis.
6 The relocation application is governed by s 46R of the Care of Children Act 2004.
7 As I understand it from counsel for the appellant, ‘safety hearing’ is a term that is used in practice
– rather than being a particular process under the Care of Children Act 2004 – where a hearing is conducted to consider, in terms of s 5(a) of the Act, matters relating to a child’s safety.
[20] On 2 March 2022, Judge Greig directed that contact in accordance with the 14 January 2020 parenting order was to resume in full.
[21] In March 2023, Judge Greig heard the applications of the parties referred to in [18] above.
Family Court decision
[22] Having set out relevant provisions from the Act8 and the Supreme Court’s approach to the application of the s 5 principles in Kacem v Bashir,9 the approach taken in the Family Court decision was as follows:
(a)The Judge identified the list of matters identified by Fisher J in D v W that may be considered in competing applications for parenting orders.10
(b)Using each of those matters as a heading, the Judge considered the evidence in the case.11
(c)The Judge then turned to consider each of the s 5 principles.12
[23] The headings used by the Judge (taken largely from D v W), and a summary of his findings under each of them, are below.
The strength of existing and future bonding.
[24] The Judge referred to Mrs Drake’s view that Jethro does not enjoy his time with Mr Drake. She believes that Jethro is frightened of his father and is at risk in his care. As the Judge put it, “She believes this because Jethro tells her that it is so. Jethro tells her that it is so because Jethro believes that is what his mother wants to hear”.13
8 Sections 4, 5 and 6 – which are set out later in this decision.
9 Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 – which is considered later in this decision.
10 [Drake v Drake], above n 1, at [38], referring to D v W [1995] 13 FRNZ 336 (HC).
11 At [39]–[103].
12 At [104]–[121]
13 At [47].
[25] The Judge accepted, however, that the objective evidence is that Jethro is closely bonded with his father.14 The Judge had no doubt that Jethro has a close and loving bond with his mother but referred to Jethro’s bond with his father as being at risk.15
Parenting attitudes and abilities
[26] The Judge described Mrs Drake’s negative view of Mr Drake’s parenting abilities and her belief that Jethro feels unsafe in his care.16 However, the Judge could find no objective evidence to support those views, concluding that Jethro and his father do a number of enjoyable things together and that both parents are more than able to meet Jethro’s everyday needs.17 The Judge referred to Mrs Drake as being an excellent mother.18 However, the Judge’s concern was that Mrs Drake’s negative view of Mr Drake is picked up by Jethro and that it is a threat to the security of his relationship with his father.19
Availability for and commitment to quality time with the child
[27] The Judge concluded under this head that both parents make themselves available to spend time with Jethro despite their work.20
Support for continued relationship with other parent
[28] The Judge found that Mr Drake nurses a strong sense of grievance against Mrs Drake, arising in particular from the circumstances surrounding Mrs Drake’s move back to Town A in 2018.21 He found that Mr Drake believes that Mrs Drake wishes to “alienate” Jethro from him.22
14 At [43].
15 At [47].
16 At [48].
17 At [52]–[53].
18 At [54].
19 At [48]–[54].
20 At [57].
21 At [59].
22 At [61].
[29] On the other side of the equation, the Judge concluded that Mrs Drake does not support the relationship between Jethro and his father. Rather, the Judge found, she undermines it, albeit largely unwittingly.23
Security and availability of home environment
[30] The Judge was of the view that both homes provide excellent environments for Jethro.24
Availability and suitability of role models and positive and/or negative effects of wider family
[31] The Judge found that Mrs Drake could do more to enable contact between Jethro and his grandparents on his father’s side and that Mr Drake’s new partner could give rise to the advantage of Jethro being able to witness a healthy adult relationship.25 There was said to be no evidence of a positive male role model in Town A.26
Provision for physical care and help and the material wealth of the parents
[32] The Judge was satisfied that both parents had the resources to provide appropriate care for Jethro.27
Stimulation and new experiences
[33] The Judge concluded that both parents were involved and active. He considered that there was a danger that Jethro’s exposure to the local community would be lacking if his relationship with his father continued to be restricted.28
Educational opportunity
[34] The Judge considered that both parents are likely to take Jethro’s education seriously.29
23 At [58]–[73].
24 At [74]–[76].
25 At [77]–[78].
26 At [79].
27 At [80].
28 At [81]–[83].
29 At [84].
Wishes of the child
[35] Jethro does not wish to live in Town B and wants the current parenting arrangements to continue.30 The Judge referred to the point made by Priestley J in Brown v Argyll that the Court must take into account the child’s views but that does not mean they must be followed or are in any way determinative.31
[36] The Judge referred to Jethro not liking the food at his father’s house, not liking his father’s partner because she “smokes and swears”, that he finds his father’s driving to be scary, and that he believes that his father “almost killed” him when he was little.
Shared care
[37] The Judge made the point that he did not have an application for equal shared care in front of him. However, he said that, if both parents end up in the same city or town, then he would make an order for equal shared care. He referred to Mrs Drake indicating – although visibly distressed by the prospect – that she would move to Town B if Jethro was directed to live there and to Mr Drake being ambivalent about whether or not he would move to Town A if his application was unsuccessful.32 The Judge referred to principles of successful shared or equal parenting regimes from several authorities, illustrating the benefits of retaining good relationships with both parents notwithstanding the existence of parental conflict.33
Parent wanting contact where there is a reluctant primary caregiver
[38] Under this heading, the Judge said that he was addressing the principle in s 5(d) of the Act.34 However, the provision that the Judge then set out is s 5(d) as it was before s 5 was amended on 31 March 2014. The provision addressed by the Judge, and set out in this part of the judgment, was as follows:
30 At [88].
31 At [89], referring to Brown v Argyll [2006] NZFLR 705 (HC), (2006) 25 FRNZ 383 (HC) at [49].
32 At [90].
33 At [91]–[97], referring to A v G HC Invercargill CIV-2006-425-489, 21 December 2006 at [67]; B v E [1988] 5 NZFLR 65 (HC), [1988] 3 FRNZ 694 (HC), L v A (2003) 23 FRNZ 583 at [48]– [49]; Bashir v Kacem [2010] NZCA 96 at [59]; Shaw v Brown [2014] NZHC 2843 and B v T [2018] NZHC 2801 at [109].
34 At [98].
(d)relationships between the child and members of his or her family, family group, whānau, hapū or iwi should be preserved and strengthened, and those members should be encouraged to participate in the child’s care, development and upbringing.
[39] With the March 2014 amendments to the provision, s 5(d), as set out above, was reworded and became s 5(e). Section 5(e) is in the following terms:
(e)a child should continue to have a relationship with both of his or her parents, and that a child’s relationship with his or her family group, whānau, hapū or iwi should be preserved and strengthened.
[40] Ms Crawshaw KC submitted that the Judge was intending, in this part of the decision, to address s 5(d) in the current version of the Act. This is a primary provision in the consideration of this case and is addressed below. It relates to the principle that a child should have continuity in his or her care, development and upbringing. It is said that, accordingly, the Judge erred in believing that, in this part of the decision, he had addressed s 5(d) in circumstances in which he returned to the topic only very briefly later in his decision.35 However, as I see it, the Judge was intending to address what is now s 5(e) in this part of this decision and referred mistakenly to an earlier version of that provision.
[41] Under this head, the Judge considered that relationships between a child and members of his or her family as being “uppermost”36 and was concerned that Mrs Drake “is incapable of supporting Jethro’s relationship with his father at present. She is in fact obstructing that relationship with the real potential for significant harm to Jethro”.37
Section 5 considerations
[42] The terms of s 5 are set out a little later in this decision. They are referred to here, in a summarised form, to complete the analysis of the Judge’s decision.
35 At [116]–[118].
36 At [100].
37 At [103].
(a) Section 5(a) – Protection of a child’s safety
[43] Having referred again to Mrs Drake’s genuinely held view that the incident mentioned in [17] was a “strangulation”, the Judge found that Jethro’s emotional safety is at risk if he remains in his mother’s full-time care.38 But he found that Mrs Drake is a lovely mother, not dishonest in any way and that she is a formidable and exceptional parent.39 Jethro, the Judge said, is physically safe in the care of either parent.40
(b) Section 5(b) – A child’s care, development and upbringing should primarily be the responsibility of his parents.
[44] The Judge considered that the principle in s 5(b) would be met through a comprehensive parenting order setting out the care and contact arrangements for Jethro, but on the basis that Mrs Drake would move to Town B.41
(c) Section 5(c) – A child’s care, development and upbringing should be facilitated by ongoing consultation and cooperation between parents
[45] The Judge was concerned that Mrs Drake was failing in terms of communication on parenting issues and that Mr Drake was not without fault either. He saw that there would be greater cooperation with both parents living in the same area and sharing Jethro’s care equally.42
(d) Section 5(d) – A child should have continuity in his or her care, development and upbringing.
[46] The Judge made the point that, on the face of it, this principle might be seen to require Jethro to remain in Town A.43 However, he found that it would in fact be met by him moving to Town B because that was the way in which he would have a continuous, sustained relationship with his father and in which his “otherwise excellent and loving parents [would] be able to remain in his life”.44
38 At [107].
39 At [109].
40 At [110].
41 At [111]–[112].
42 At [114]–[115].
43 At [116].
44 At [116].
(e) Section 5(e) – A child should continue to have a relationship with both of his or her parents
[47] The Judge found that equal shared care in Town B was the way in which the principle would be met.45
(f) Section 5(f) – A child’s identity should be preserved and strengthened.
[48] The Judge found that, having heard no particular evidence on this issue, it was not something that could be advanced. However, he said that “Jethro will be better placed to become a more complete citizen of modern Aotearoa New Zealand in his father’s care as he will develop a much better understanding of te ao Māori.”46
The Judge’s conclusions
[49] The Judge found that Jethro was being subjected to restrictive gatekeeping by his mother, that there was a risk that this would lead to Jethro resisting or refusing contact with his father and that directing counselling or other professional help for Mrs Drake was not an appropriate option.47 He considered that it was more important for Jethro’s views of his father to change, concluding that:
[130] In my judgment all of the evidence points overwhelmingly to Jethro’s best interests being met by living in what will be the equal shared care of both of his parents in Town B. Jethro’s chances of being allowed a close and loving relationship with his father without this change are significantly at risk with all of the dangerous consequences that can follow from such a rupture.
[50] The Judge declined to admonish Mrs Drake, as Mr Drake had sought, on the basis that it was unnecessary to do so.48 Mrs Drake was, the Judge found, a careful, compassionate and dedicated [occupation] who had devoted her life’s work to children’s health.
[51]The Judge made parenting orders:49
45 At [119].
46 At [121].
47 At [122]-[127].
48 At [131]–[132].
49 At [133].
(a)Maintaining the present parenting order until 22 September 2023.
(b)Requiring, from that date, Jethro to be in the day-to-day care of his father and requiring that his place of residence be Town B.
(c)Providing for the day-to-day care of Jethro to be shared equally on a week-to-week basis between Mrs Drake and Mr Drake in the event that Mrs Drake moved to the Bay of Plenty.
(d)Directing that, in the event that Mrs Drake was to remain in Town A, the conditions under the January 2020 parenting order were to be reversed such that the contact provided in that order for Mr Drake would apply, instead, to Mrs Drake.
(e)Involving a range of other conditions related to these primary orders.
Legal principles
Approach to appeal
[52] The appeal is brought under s 143 of the Act. Under that provision, Mrs Drake may appeal the parenting order as of right. The orders relating to Jethro’s relocation require leave to appeal, under s 143(2), because they were orders made under s 46R of the Act.
[53] The appeal under s 143 is a general appeal that proceeds by way of rehearing where the appellant bears the onus of satisfying the Court that it should differ from the Family Court’s decision.50 This Court is only justified in interfering with that decision if it considers the decision is wrong; in other words, the Judge erred. If an error is found, this Court will come to its own assessment of the merits of the case afresh. It can rely on the Family Court’s reasons in reaching its own conclusions, but the weight
50 Under s 143(4) of the Care of Children Act, the High Court Rules 2016 and s 128 of the District Court Act 2016 apply as if it were an appeal under s 72 of the District Courts Act; Swayne v Lush (1998) 17 FRNZ 415, [1999] NZFLR 49 (HC); and Austin, Nicholls & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141, (2007) 18 PRNZ 768.
to be given to those reasons is a matter for this Court.51 It must also be noted that there are obvious advantages to the Family Court Judge in making assessments of credibility and reliability, as it is the trial judge who observes the witnesses. I must be cautious when considering assessments of that type.52
[54] Ms Crawshaw makes the point that it is not a case that turns on an assessment of the credibility of the witnesses giving evidence before the Family Court; the focus being upon potential alternative arrangements for Jethro in the light of the evidence that was given. The deference to be given to the Family Court Judge’s assessment of the evidence should, it was said, be adjusted on that basis.
[55] The respondent, on the other hand, emphasises the specialist jurisdiction of the Family Court; its specialist knowledge and expertise and the benefit the Family Court has in drawing upon the history of the case in that Court. I certainly proceed with those cautions in mind but on the basis that, as Elias CJ said in Austin, Nicholls & Co Inc v Stichting Lodestar, in a general appeal such as this, the appeal Court has the responsibility of arriving at its own assessments – on whether there is an error in approach and, if so, on the merits of the case.53
Care of Children Act 2004
[56] Where a dispute arises between guardians about a child’s place of residence or any proposed move, they can ask the Family Court to resolve the matter pursuant to s 46R, subsection (1) of which is in the following terms:
(1) If 2 or more guardians of a child are unable to agree on a matter concerning the exercise of their guardianship, any of them may apply to the court for its direction.
[57] Parenting orders are governed by ss 47 to 57 of the Act. An eligible person, such as a parent, may apply for a parenting order under s 48.
[58] Under s 48, the court may make a parenting order determining the time or times when specified persons have the role of providing the day-to-day care for, or may have
51 ARG v BKL [2019] NZHC 1514 at [5]–[7]; and D v S [2003] NZFLR 81 (CA) at 86.
52 Green v Green [2016] NZCA 486 at [30]–[32].
53 Austin, Nicholls & C v Stichting Lodestar, above n 50 at [5].
contact with a child. It may specify the times that the day-to-day carer has that role and whether it is a role that is held alone or jointly with another person.54 It may specify the nature of the contact, the duration of that contact and any arrangements necessary or desirable to facilitate it.55 A parenting order may be made subject to any terms or conditions the court considers appropriate.56 It may be interim or final.57
[59] Where the court proposes to make a parenting order that does not give a parent the role of providing day-to-day care for a child, the court must consider whether and how the order can and should provide that parent is to have contact with the child.58
[60] In considering the exercise of powers under the Act – here under ss 46R and 48 – the Court must take into account the Act’s foundation provisions: ss 3 to 6.
[61]Section 3 explains the purpose of the Act and is in the following terms:
(1)The purpose of this Act is to—
(a)promote children’s welfare and best interests, and facilitate their development, by helping to ensure that appropriate arrangements are in place for their guardianship and care; and
(b)recognise certain rights of children.
(2)To that end, this Act—
(a)defines and regulates—
…
(iii)courts’ powers in relation to the guardianship and care of children:
(b)acknowledges the role that other family members may have in the care of children:
(c)respects children’s views and, in certain cases, recognises their consents (or refusals to consent) to medical procedures:
(d)encourages agreed arrangements for, and provides for the resolution of disputes about, the care of children:
…
54 Section 48(2).
55 Section 48(3).
56 Section 48(4).
57 Sections 49 to 49C.
58 Section 52.
[62] Under s 4, the welfare and best interests of a child in his or her particular circumstances must be “the first and paramount consideration”. To that end, the Court must take into account the principle that decisions affecting a child should be made and implemented within a time frame that is appropriate to the child’s sense of time.59 And it must take into account the principles in s 5.60 It may take into account also the conduct of the person seeking to have a role in the upbringing of the child to the extent that it is relevant to the child’s welfare and best interests.61
[63]Section 5 is in the following terms:
5 Principles relating to child’s welfare and best interests
The principles relating to a child’s welfare and best interests are that—
(a)a child’s safety must be protected and, in particular, a child must be protected from all forms of violence (as defined in sections 9(2), 10, and 11 of the Family Violence Act 2018) from all persons, including members of the child’s family, family group, whānau, hapū, and iwi:
(b)a child’s care, development, and upbringing should be primarily the responsibility of his or her parents and guardians:
(c)a child’s care, development, and upbringing should be facilitated by ongoing consultation and co-operation between his or her parents, guardians, and any other person having a role in his or her care under a parenting or guardianship order:
(d)a child should have continuity in his or her care, development, and upbringing:
(e)a child should continue to have a relationship with both of his or her parents, and that a child’s relationship with his or her family group, whānau, hapū, or iwi should be preserved and strengthened:
(f)a child’s identity (including, without limitation, his or her culture, language, and religious denomination and practice) should be preserved and strengthened.
[64] Section 6 of the Act applies to proceedings that include proceedings involving the day-to-day care for, or contact with, a child. Under subs (2):
a child must be given reasonable opportunities to express views on matters affecting the child; and
any views the child expresses (either directly or through a representative) must be taken into account.
59 Section 4(2)(a)(i).
60 Section 4(2)(a)(ii).
61 Section 4(2)(b).
[65] On an application by an eligible person, such as a parent, the court may vary or discharge a parenting order.62 Subsections (2) and (3) of s 56 provide:
(2)On an application for the purpose by an eligible person, the court may vary or discharge an order vesting the guardianship of a child in 1 parent or in any other person or persons. If the order is discharged, and no other order with respect to the guardianship of the child is made, guardianship vests in the person or persons (if any) who would be the guardian or guardians if the order discharged had not been made.
(3)In this section, eligible person, in relation to an order relating to a child, means any of the following persons:
(a)a person affected by the order:
(b)a person acting on behalf of the child.
…
Leave to appeal
[66] As mentioned, leave to appeal is needed for the Family Court decision insofar as it relates to Jethro’s relocation. Ultimately, neither Mr Drake nor the lawyer for the child oppose the Court granting leave to appeal the relocation decision. I accept it is appropriate for leave to be granted because the relocation aspects of the decision formal integral parts of the parenting order that is made. As has been said, where a decision of the Family Court has long-term implications for the welfare of a child, leave may readily be granted.63
The issues on appeal
[67] In the submissions for the appellant, the points raised in the amended notice of appeal are addressed by considering eight aspects of the Family Court Judge’s decision: equal shared care as the starting point; the weight afforded to the s 5(d) principle of continuity; equal shared care in Town A; the weight afforded to the child’s views; cooperation and communication between parties; the risks and remedies identified by the s 133 report writer; the weighing and balancing of competing risks; and the child’s cultural identity.
62 It can also vary or discharge any other order about the role of providing day-to-day care for, or about contact with, a child; and an order about the upbringing of a child.
63 SFB v JEBH [2015] NZHC 2897 at [8](c); W v G [2012] NZHC 1188, [2012] BCL 267 at [23].
[68] Because of the way in which a number of those points interact with each other, I assess the points on appeal under five primary headings. First, I consider the Family Court Judge’s approach in taking shared care as the starting point. Secondly, I consider the weight given to the s 5(d) continuity principle. Under that heading, I consider the competing risks, the application of the continuity – or status quo – principle and whether the pragmatism in the Judge’s solution (of equal care in Town B) is a position that is tenable. Thirdly, I consider the weight afforded to Jethro’s views. Fourthly, I consider the Judge’s assessment of cooperation and communication between the parties. And, fifthly, I consider the Judge’s assessment of the preservation and strengthening of Jethro’s cultural identity.
Equal shared care as the starting point
[69] It is submitted for Mrs Drake that the Judge erred in using equal shared care of Jethro as a starting point when neither party applied for an order of that nature. In doing so, it is said that the Judge conflated two distinct issues: the application to vary the parenting order and the application for relocation. It is said that, having arrived at the conclusion that equal shared care was in Jethro’s best interests, the Judge needed to then re-examine the s 5 principles to determine the issue of relocation separately.
[70] The position for Mr Drake is that, rather than being a starting point, shared care was merely an option available to the Judge and it was open to him to make an appropriate order, regardless of the applications made by either party.64 It is said that there is no particular way in which the s 5 principles need to be applied, so long as they are applied. The care and relocation issues, it is said, were intertwined.
[71] Ms Gelston, as lawyer for the child, submitted also that equal shared care was not the Judge’s starting point. The ultimate question, it was said, was whether Jethro should remain in Town A with his mother or whether he should relocate to Town B with his father and – most likely – his mother.
64 With an emphasis on s 4(1) of the Care of Children Ac 2004, requiring the welfare and best interests of the child in his or her particular circumstances to be the first and paramount consideration.
[72] The issue turns, then, on the Judge’s approach to the relocation issue in light of his views on the benefits of an equal shared care arrangement.
[73] A series of cases has set out the approach that should be taken in relocation disputes under s 46R of the Act. The first point to make is that, in Kacem v Bashir, the Supreme Court discussed the misconception that in relocation cases the Court is exercising a discretion:65
As we have seen, the court is not in fact exercising a discretion; it is making an assessment and decision based on an evaluation of the evidence. It is trite but perhaps necessary to say that judges are required to exercise judgment. The difficulties which are said to beset the field are not conceptual or legal difficulties; they are inherent in the nature of the assessments which the courts must make. The judge’s task is to determine and evaluate the facts, considering all relevant s 5 principles and other factors, and then to make a judgment as to what course of action will best reflect the welfare and best interests of the children. While that judgment may be difficult to make on the facts of individual cases, its making is not assisted by imposing a gloss on the statutory scheme.
[74] Section 5 of the Act will be the touchstone in considering relocation issues. The Court’s approach, when considering the s 5 principles, was considered by the Supreme Court in Kacem v Bashir and, with one small addition, I adopt the summary of the primary principles to emerge from that case in the submissions of counsel for the respondent as follows:66
(a)The welfare and best interests of the child is the first and paramount consideration.
(b)The Court must take into account, in a case-specific way, the s 5 principles that are relevant. The principles are not ranked and no one principle has greater weight than another.67
(c)The focus must be on the particular child in his or her particular circumstances with no presumption of what the welfare and best
65 Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1, (2010) 28 FRNZ 483 at [35].
66 At [18], [19], [21], [22] and [28] in particular.
67 Noting that, under s 5(a), a child’s safety must be protected whereas the principles in s 5(b) to (f) use the word should.
interests of the child may require or what influence the s 5 principles may have on that focus.
(d)The s 5 principles are not exhaustive of matters that may be relevant to the welfare and best interests of the child involved.
(e)The ultimate objective is to determine the outcome that would best serve the welfare and bests interests of the particular child in his or her particular circumstances. In making that determination, the s 5 principles must each be examined to see if they are relevant, and if they are, they must be taken into account along with any other relevant matters.
[75] The Judge did consider shared care and relocation issues in tandem. I see no difficulty in him having done that. There is no requirement for the applications to be dealt with separately and the interrelationship between the applications is such that it would be artificial, and certainly repetitive, to separate them out. I agree with the submissions made by both Ms Stannard and Ms Gelston that the Judge approached the applications from the starting point of whether, in considering Jethro’s welfare and best interests, he should remain in Town A with his mother or whether a change of care was required. Equal care arose as an option in the circumstances. Adopting the option was assisted by the Judge’s view that Mrs Drake appeared to be willing to shift to Town B while Mr Drake was ambivalent about shifting to Town A. That view in particular led the Judge to conclude that shared care was possible in Town B and that, therefore, that was the preferred option in all of the circumstances.
[76] The issue turns, then, on whether the Judge was right to conclude that equal shared care needed to be implemented in Town B, rather than in Town A. That leads in turn to the appellant’s second point: the weight afforded to the continuity of care principle in s 5(d) of the Act.
Weight accorded to the s 5(d) principle
[77]For Mrs Drake, it is submitted:
(a)First, in considering the parenting order and relocation at the same time, the Judge failed to give proper weight to how the continuity of care for Jethro’s development and upbringing might have been assured in terms of the s 5(d) principle. Cases were referred to in which it was said that, in order to change the status quo, there must “demonstrably” be shown to be an improvement in “the children’s overall resultant wellbeing”.68
(b)Secondly, the Judge should have taken a more child-focused approach to the shared care and relocation issues. It was said that directing Jethro to move was not a proportionate or child-centred approach. It was said that the Judge was influenced in particular by Mr Drake’s preference to stay in Town B rather than being guided primarily by the disruption that would be caused to B in leaving the strong networks he has built up in Town A.
(c)Thirdly, the Judge erred by preferring the “unknown” to the “known” in directing the relocation in the sense that staying in Town A constitutes the least change for Jethro.
(d)Fourthly, in finding that the status quo presents serious risks to Jethro’s development, the Judge failed to address which of those risks would be addressed simply by changing the care arrangements as opposed to relocating Jethro. It is said that the Judge failed to give adequate weight of the potential remedy of Mrs Drake having professional help.
[78] For Mr Drake, Ms Stannard makes the point that, while the status quo principle must be considered, neither status quo nor change are factors that prevail. Rather, they must be balanced.69 Reference is made to the Family Court having, in another case, disrupted the status quo where the attitude of one caregiver posed a risk to a child’s
68 See Smith v Smith FC Christchurch FP1528/98, 8 May 2000; D v W (1995) 13 FRNZ (FC); and Crowther v Green and Chapman FC Palmerston North FP054/54795, 9 March 1998. Ms Crawshaw KC referred to cases in which Courts had addressed the continuity of care principle more fully. However, the ways in which the continuity principle was addressed in these cases is variable and I do not see them as providing particular assistance either way.
69 D v W [1995] 13 FRNZ 336 at 349 (HC).
relationship with the other parent.70 It is said that the Judge balanced, properly, the status quo principle with the risks to Jethro if he was to remain in his mother’s care and that the outcome was a fair reflection of those risks.
[79] Ms Gelston makes the point that s 5(d) is not so much about where Jethro lives but that he has continuity of care, development and upbringing. It is said that, while Jethro has lived primarily in Town A, he is familiar with Town B having spent substantial time there and that, ultimately, it comes back to the s 4 consideration of Jethro’s best interests and his welfare. It is said that the Judge was correct to make a finding that a move to Town B would allow him to have a continuous and sustained relationship with his father.
[80] It seems to me that the Judge and the respondent have both approached the options in a relatively binary way. They have assessed the risks to Jethro if he is to stay with his mother and have advanced a view that the risks can be mitigated if both Jethro and his mother were to move. Equally, it might be thought that the risk could be reduced if equal sharing arrangements were to be implemented in Town A. Counsel for the respondent, and the Judge, discount an arrangement of that sort because it would appear that Mr Drake is less likely to move to Town A than Mrs Drake is to move to Town B. These are relevant considerations in a practical sense but the focus must be on Jethro and his parents both need to respect that and work with opportunities that arise. To take this point further, the competing risks need to be considered in a little more detail.
(a) Competing risks
[81] The risk that dominated in the Judge’s decision is the impact of Mrs Drake’s views on Jethro’s view of his father.
[82] The Judge noted Mrs Drake’s “firm and sincerely held view” that Jethro does not enjoy his time with his father, reinforced by his apparent spontaneous criticisms and “downloading” where Jethro describes his father in a negative way.71 The Judge
70 Jansen v Roche [2016] NZFC 3654 at [103](a).
71 [Drake v Drake], above n 1, at [40]–[42].
considered that this contrasted with the objective evidence that Jethro is closely bonded with his father.72 The Judge found also that both parents hold negative views of the other, and that Mrs Drake’s negative view of Mr Drake is picked up on by Jethro which is “a threat to the security of his relationship with [Jethro]”.73 The Judge considered that it was each parent’s ability to support Jethro’s relationship with the other that “ultimately leads to the conclusion” he reached.74
[83] Having found that Mr Drake had not passed on to Jethro his negative views of Mrs Drake, the Judge went on to say:
[63] The same cannot be said for [Mrs Drake]. [Jethro] volunteers negative information about his father even when unprompted. He did that at school when being led by his teacher to meet Dr Rai. He did so to Dr Rai. He has done so to his lawyers. He did it when he met me. Most of all he does it to his mother. As Dr Rai has reported, ‘[Jethro] holds an extremely negative view of his father’. In Dr Rai’s opinion [Jethro] was volunteering ‘rehearsed stuff.’ The question is why?
(Footnotes omitted).
[84] The Judge referred to [42] of Dr Rai’s report and Dr Rai’s opinion that Jethro is “aligning with Mrs Drake’s entrenched views about his safety with Mr Drake and his ability to provide care for him”. This led Dr Rai to be concerned about Jethro’s wellbeing and on “his ability to maintain a meaningful relationship with his father. Even though [Jethro] may have a positive experience of his time with his father, he refuses to admit he has”.75
[85] Mrs Drake’s behaviour was described by Dr Rai as “gatekeeping”.76 The Judge accepted her views. They were tested in cross examination:
Q. Now my next question is if we have a situation where both parents are living in [Town B], so he is going between parents on an equal shared basis, is there less of a risk of that happening?
A. If – so there are a couple of – I mean I’ve spoken about risk and regardless of [Mrs Drake] is – the positive of both parents living in the same situation is that [Jethro] can have more social capital. So from, you know, having spending more time with Dad. The risk is, which we’re facing
72 At [43]–[46].
73 At [54].
74 At [58].
75 At [64]–[65].
76 At [69].
here is going to remain because, you know, [Mrs Drake], if she doesn’t address what I’ve identified this morning is that she really needs help to acknowledge [Mr Drake’s] role in [Jethro’s] life.
Q. But if [Jethro] is with his dad a lot more, you know, considerably more, you know, for seven days out of 14 then there is that counterbalance?
A. That is a positive thing, but again, if [Mrs Drake] continues to undermine that relationship even in those seven days there is still a risk.
…
Q. Sure, and I was going to talk to you a bit more about that. I had a question in my mind, let me think. So the risks for [Jethro] is that he continues to face this restrictive gatekeeping which may lead to resist, refuse or he has to cope with a change of primary caregiver, which ones is the easier one for an eight-year-old to manage? Can you answer that? It’s a pretty big question, sorry.
A. If I had a magic wand he will continue to live in [Town A] with [Mrs Drake] supporting his relationship 100% with [Mr Drake] and sharing the responsibility that [Jethro] needs Father in his life, and it’s not just physical contact, but it’s ensuring that, that ‘your father is a good person and he’s a safe person and you need to have contact with him’.
…
Q. If there is no change to – that’s what I said. Coming back to your magic wand, if there is no change to those restrictive gatekeeping behaviours, is it going to be better for [Jethro] longer-term if he moves into his father’s care and has that contact relationship with his mother?
A. And my answer was yes.
[86] Equally, however, there are risks for Jethro in moving to Town B. Dr Rai was asked about these risks in cross-examination:
Q. Here’s the conundrum that I think his Honour is wrestling with. I think you wrestle with conundra. You’s got stability [Jethro’s] being here, however it came about, since December 2018.
A. Yes.
Q. So we’re now four and a bit years, which is half his life. He’s started school here. He’s been in the competent day-to-day care of his mother, he has his own social contacts, what have you, and he has contact direct and indirect with his dad. There’s stability.
A. And I put that in my report, that – the issue I see is my preference would have been [Jethro] to stay in [Town A] because he has got stability and he has lived there most of his life, however, that needs to be weighed upon the risk of his relationship with his father.
…
[87] Dr Rai acknowledged also that it may take Jethro some time to adjust to a new school, which might impact on his academic achievements and his social peer relationships.
[88] A related risk, put to Dr Rai, was that, if the parties moved to Town B, then Mrs Drake might be resentful, meaning the gatekeeping concerns would continue. The Court asked Dr Rai whether a shared care arrangement in Town B would make the gatekeeping worse. Dr Rai’s reply was as follows:
Your Honour, there are two sides to it, that [Jethro] will get to spend a lot more time with his father, he’ll get to have, experience his father’s parenting and not be affected that much by the restrictions and the second thing is that [Mrs Drake] remains resentful and keep undermining [Mr Drake’s] parenting and the conflict continues. I don’t have data to support and hence I was suggesting that [Mrs Drake] really needs some help with behaviours she has displayed throughout this assessment.
[89] Dr Rai suggested in cross-examination that, to reduce these risks, the parties would benefit from a parenting coach and that Mrs Drake would be assisted by professional help.
[90]When concluding on the parenting order decision, the Judge said:
[128] Furthermore, whilst it will be to [Jethro’s] great benefit if his mother can change her opinion of his father, or at least make the pretence of having done so in [Jethro’s] presence and hearing, it is [Jethro’s] view of his father that must be changed. Even if [Mrs Drake] had said that she will not move to [Town B], I would still order a change in care. That is because [Jethro] must be helped to rid himself of the notion that he needs to express to other people that his father is a risk to his safety, that his father wants to kill him. He needs to stop believing it for himself. The best way for that to happen will be if [Mrs Drake] tells [Jethro] that his father loves him very much and that he will look after him very well. [Jethro] must also experience that for himself however. The only way of doing that is for [Jethro] to spend sustained periods of time in his father’s care. [Mrs Drake] must realise that if she continues to lead [Jethro] to believe that his father is a threat to his safety then it may be necessary to significantly limit or even temporarily stop her contact with [Jethro].
[91] The Judge’s primary concern, then, was the need to break down, in the interests of Jethro’s relationship with Mr Drake, the perceived gatekeeping tendencies of Mrs Drake. The Judge believed that the only way to combat the resulting risk was for Jethro to spend sustained periods of time in his father’s care, through equal shared
parenting. But the ultimate question is – where? That is a discussion that really was not entered into as a result more of pragmatism than of principle, as I come on to discuss.
[92]The missing piece of the risk equation is the risk to Jethro if he is move.
(b) The status quo principle – factoring in risks to Jethro if he is required to move
[93] Under s 5(d) of the Act, a child should have continuity in his or her care, development and upbringing. Continuity has a material bearing on a child’s sense of security. However, as was made clear by the Court of Appeal in Clapham v Clapham, there is no legal presumption in favour of the status quo.77
[94]As one commentator has put it:78
So while the status quo is just one of the factors to be considered in determining the child’s welfare, it can be given significant weight where it best enhances a child’s welfare and best interests.
[95] Equally, it can be given considerably less weight where that is not so. The Judge’s assessment of the continuity principle in s 5(d) spanned just three paragraphs.79 It is said, by Ms Stannard and Ms Gelston, that the Judge’s views on the point are interwoven throughout the decision but I do not think that is really so. Much of the decision was taken up with a consideration of the D v W factors; consideration that I have summarised in [24] to [41] above. That assessment does not include a consideration of continuity. The Judge’s reasoning on the continuity principle is given in one primary sentence in [116] of the decision: “It will in fact be met by him moving to [Town B], because only in that way will he have a continuous, sustained relationship with his father and have his father involved in his care, development and upbringing.”
[96] I see it to be a material error to conclude that the only way the s 5(d) principle could be met was through Jethro moving to Town B.
77 Clapham v Clapham [1993] NZFLR 408 (CA).
78 Mark Henaghan and others Family Law in New Zealand (vol 1, 20th ed, LexisNexis, Wellington, 2021) at [6.104F].
79 [Drake v Drake], above n 1 at [116]–[118].
[97] I see a need for there to be considerably more to an assessment under s 5(d). Certainly, the starting point is that equal sharing in Town A would be favoured. The status quo is disrupted by moving Jethro to Town B. As Mrs Drake said in her affidavit of 24 January 2023:
[Jethro] has lived in [Town A] for most of his life (save for 3 years in [Town B]). [Jethro] identifies as a [Town A]-boy. We have a ‘village’ of friends and colleagues who support us with whom [Jethro] has strong connections with. He has lived at the same address for the last 4 years and he has great friends in our street and neighbourhood.
[98] As Mrs Drake went on to say, Jethro has built up a strong network at his school, identifies as a “greenie”, is associated with a gallery, undertakes waka ama, basketball, football and swimming.
[99] While it can fairly be said that Jethro is familiar with Town B also, I do agree with counsel for the appellant that it would be wrong to equate his sense of familiarity derived from term and school holiday visits to a place where a child has not lived for over four and a half years (and not since they were three years old) into something approaching continuity of care, development and upbringing.
[100] It is Jethro with whom the Court is concerned. The Family Court Judge’s concerns about transference of Mrs Drake’s views can be addressed to some extent by equal parenting orders, but certainly not fully. With that in mind, should the place at which equal parenting orders are carried out disrupt Jethro’s continuity because one parent is more willing to shift than the other?
(c) Basing an equal sharing parenting order upon the willingness or otherwise of a parent to shift
[101] It was suggested to Dr Rai by counsel for Mrs Drake in cross-examination that an option available to the Judge, with the least change for Jethro, was that both parents would live in Town A. Dr Rai agreed.
[102] Mr Drake addressed the prospect of a shift on his part to Town A in his affidavit of 16 December 2022. He said:
I also note that I feel I cannot move to [Town A]. I have given this a lot of consideration. I have now a stable relationship and my own home in [Town B]. [My partner’s] children and career are here. I consider [Town B] my home and also consider it [Jethro’s home]. I feel [Jethro] was taken from here permanently without my consent in a situation manipulated by [Mrs Drake]. She was never transparent about her intention to remain in [Town A]. If I had known she never intended to come back to [Town B] [Jethro] would not have stayed with her in [Town A].
[103] In Mrs Drake’s affidavit of 24 January 2023, she said that Town A is her home and that there are “plenty of opportunities with regards to activities and events for” her there. She referred to her supportive friends and colleagues. She said that, as an [occupation] “[t]hese same opportunities do not exist in [Town B]. [Town B] was essentially de-skilling, doing the job [an occupation] would and could do and involved a lot more work.”
[104] In her affidavit of 3 February 2023, Mrs Drake did not accept that Town B is Jethro’s home, and nor did she accept that she manipulated the situation to permanently relocate Jethro to Town A. She reiterated that Jethro is settled in Town A and considers it to be his home. Her evidence was that it would be very difficult for her to leave her position at the hospital in Town A and that she and Jethro had made a home there.
[105] The parties answered questions from the Court as to the equal shared care and relocation arrangements. As previously mentioned, Mrs Drake advised the Judge that she would move to Town B as a last resort, but was visibly distressed by that option.80
[106]Mr Drake was cross-examined on his reluctance to move from Town B:
Q. I understand that it would be inconvenient for you to move to [Town B], I understand that you would have to give up what you depict as an idyllic lifestyle. Why is that any different for you than it is for [Mrs Drake]?
A. It was inconvenient for me, sir, to have my child taken away, not being given contact, being in a very poor financial situation with no roof over my head and having to try to rebuild my life.
Q. So your inconvenience is what’s driving you now?
A. No. Why have I applied for this? Because there’s been some serious impact on my relationship with [Jethro] and that needs to change, and we
80 At [90].
need to find a better way forward with [Jethro]. And in my opinion, currently, having [Jethro] in my day-to-day care in [Town B] is the best solution.
[107] The Judge raised the point that Mrs Drake would be distraught at the thought that Jethro could be moved to Town B and asked whether Mr Drake would be “prepared to make the same sacrifice”, saying: “[a]nd if I said I would award you 50/50 care if you were living in [Town A], would that help your answer?”. The exchange was as follows:
A. Sir, the issues is that I don’t feel that I can support [Jethro] in the same way in [Town A] as I do in [Town B]. And I know that’s hard for everybody to understand, but [Town B] is – has given me everything that I have been able to rebuild my life with, a working environment that is so positive not just for me but [Jethro] as well and a home, and if I move to [Town A], I’m not sure that I can be who I am for [Jethro]. I’m not saying that I would ever discount that, but I firmly believe that I can offer [Jethro] what he needs to be offered where I have my stability currently. And there’s more than myself to consider actually, Sir, and this is …
…
Q. – under no circumstances would you relocate to [Town A]?
A. I think “under no circumstances” is probably strong, but I cannot make that decision for other people, you know, [his partner] and her family and
–
Q. Well I read she has whānau in [Town B] and I have no doubt that – well I’d be kind of assuming that she wouldn’t move with you, but …
A. It would be extremely difficult, Sir.
…
Q. What is it then that [Town B] gives you that you feel makes you a complete person? And I understand what you’re saying but what is it that it –
A. It’s communities, its values, it’s sense of place. …
Q. … I appreciate that there are differences between [Town B] and [Town A], but I am going to suggest to you that pretty much everything you find in [Town B] you can find in [Town A]. … There is a sense of community in both places, there’s community here. Culturally –
A. I find it very different culturally, Sir.
…
Q. Are you saying there’s a greater racial divide in [Town A]? I don’t think anyone would disagree with that proposition.
A. That’s – that’s my experience, Sir, yeah. And the way I propose or the way I do bring up [Jethro] when he’s in my care is that he’s exposed to my values but also the values of my community, and that’s kind of where I’m getting at in terms of how I would find it very difficult not to have that same ability. …
[108] I do not believe that the risk assessment process described earlier or, more importantly, the consideration of the s 5 principles, should be driven by a parent’s willingness or otherwise to be in the same town. The focus must be on the child. The issue to be addressed was whether – in circumstances in which the starting point in an assessment of the continuity was Jethro’s established life in Town A – assessing perceived risks in his relationship with his father would best be approached, in the name of continuity, in moving Jethro to Town B or whether other options needed to be considered.
[109] The Judge sought out a pragmatic solution to the issue of relocation. In the evidence they gave at the hearing, Mr Drake appeared more reluctant to move than was Mrs Drake. However, given the distress exhibited by Mrs Drake in her evidence at the prospect of moving I do not know that there was really much difference in the respective reluctance on both of their parts. Moving would undoubtedly be dramatic for either of them. But it must come back to Jethro.
[110] I agree with Ms Crawshaw when she says that it could not be right to suggest that continuity of care, development and upbringing could only be achieved for Jethro by an outcome that not only alters his existing care arrangements but also shifts him from the place that he has known as home during the last four and a half years.
[111] Pragmatism aside, the Family Court’s decision did not explore why Jethro’s relationship with both parents could not equally have been improved by an order providing an opportunity for equal shared care in Town A.
[112] For these reasons, the Judge’s assessment of continuity was in my view in error. It was limited, driven by Mr Drake’s views and failed to take into account relevant options and risks.
[113] In those circumstances, and in coming to my own assessment of the merits afresh, it is my view that continuity in Jethro’s care, development and upbringing is best served by him remaining in Town A. The risks with which the Judge was concerned – Jethro’s relationship with his father – can be addressed through the extent to which Mr Drake wishes to take up parenting arrangements on offer and through changes to the way in which Mrs Drake portrays Mr Drake in Jethro’s presence; changes which I perceive to be readily attainable and to have developed as a result of these proceedings and which can be developed further through counselling measures.
Weight afforded to the child’s views
[114] It is submitted for Mrs Drake that the Judge failed to give sufficient weight to Jethro’s views. It is said that the Judge erred in suggesting that Jethro’s views could be discounted as being informed or influenced by Mrs Drake’s views. It is said that the Judge should have considered Jethro’s views about parenting arrangements and relocation separately and that insufficient weight was given to the latter.
[115] For Mr Drake it is submitted that Ms Gelston reported Jethro’s views to the Court on numerous occasions and that, as a result, the views were known to the Judge and considered by him. It is said that Jethro’s views were addressed in the Court’s judgment and that it was clear that his decision was reached after reviewing all of the evidence and taking into account Jethro’s age, his level of maturity and awareness of all relevant factors and to the extent to which his views might not truly have been his own. It is rightly said that the views of a child are not determinative and that the Court has a discretion in how much weight should be afforded them. It was said that the Judge was entitled to give limited weight to Jethro’s views if they were in conflict with the requirement that the Judge reach a decision on the welfare and best interests of the child.
[116] The Court is obliged to Ms Gelston for the reports and submissions she has provided the Family Court and in this Court. The expression of Jethro’s views, as relayed by him to Ms Gelston, and Ms Gelston’s submissions are both of real assistance. On this point on appeal, Ms Gelston rightly cautions the Court about the prospect of Jethro’s narrative being rehearsed and submits that the weight to be given
to Jethro’s views was appropriately a matter for the Judge. She makes the point that this Court will need to consider afresh the weight to be given to Jethro’s most recent views, as recounted in her submissions for this hearing, which are discussed below.
[117] Jethro’s views were summarised in the Family Court decision, but only quite briefly.81 The Judge recorded the fact that Jethro does not wish to live in Town B and wants the parenting arrangements to stay more or less as they are now.82
[118] Jethro’s views were recounted in a memorandum from Ms Gelston to the Family Court of 22 March 2023 in the following terms:
[Jethro] knew that I was there to talk to him his [sic] care arrangement because we were coming up to the court hearing. [Jethro] is clear about what he wants. [Jethro] said he wants:
a. To live in [Town A] with his Mum as it is his home.
b. To see his Dad over Christmas and Easter and at least five days for special occasions.
c. To see his Dad for two weekends per term.
d. The vide calls are currently each Monday and Thursday morning. He said these calls are 5 minutes. He likes them.
e. If he went to live in [Town B] he would be said [sic] because he would be leaving his home.
[119] Ms Gelston visited Jethro again on Friday, 17 August 2023, just before the hearing of this appeal. Jethro’s views are recounted in Ms Gelston’s submissions for the appeal. While the Court must be focused on evidence that was before the Family Court in making its decision, in circumstances in which Jethro’s welfare and best interests are paramount, in which any views the child expresses must be taken into account83 and, in the absence of any objection, it is helpful to learn of them. They are, in any event, consistent with the views Jethro has expressed previously.
[120] Ms Gelston described, first, her visit with Jethro at Jethro’s school on 11 May 2023 to explain the Family Court outcome. She described Jethro as being “accepting and, in some regards, reasonably nonchalant about the decision”.
81 At [85]–[88].
82 At [88].
83 Care of Children Act 2004, ss 4 and 6.
[121] Ms Gelston saw Jethro again on 17 August 2023 in preparation for the hearing of this appeal. Jethro described fun times he had had with his mother in Rotorua recently, being animated and chatty. Ms Gelston described the way in which Jethro’s demeanour changed when she asked him how his dad was. He replied that he was good. When asked what he had been up to with his dad in the previous school holidays Jethro said that he didn’t really remember; he did not know. He was non-committal when Ms Gelston mentioned Mr Drake’s new partner.
[122] When Ms Gelston reminded him of the Court decision Jethro said that he does not wish to live with his dad. He said that was because his dad:
(a)Says I have to eat stuff I don’t like;
(b)Says I have to do what he says and I don’t like that;
(c)Says I have to eat things like fish which I don’t like; and
(d)Can get really growly and that makes me scared.
[123] Jethro said to Ms Gelston that sometimes he jumps into bed and cries and that this happened the last time he was in Town B. When Ms Gelston said to Jethro that, when she last met with him, he seemed pretty happy about things, Jethro responded that he wasn’t. He said that his mum is very sad about him moving to Town B and sometimes she cries. When Ms Gelston asked Jethro about his mum moving to Town B with him Jethro replied that his mother had said that she wouldn’t be going as Town A is her home. Jethro was clear that his mother had not told him what to say in any of this. He did not know that the hearing of this appeal was to take place and I agree with Ms Gelston when she says that this is a credit to both parents.
[124] The Judge rightly observed that the comments of Priestley J in Brown v Argyll are relevant to this application.84 In that case, Priestley J emphasised that a child’s views are not determinative and that they may conflict with the need for the Court to provide for the welfare and best interests of the child in terms of s 4 of the Act.85
84 [Drake v Drake], above n 1, at [89]; Brown v Argyll, above n 35.
85 Brown v Argyll, above n 35, at [49].
[125] While cautions on the use of Jethro’s evidence in circumstances such as these are acknowledged, I am drawn to conclude that the Judge’s reasoning, as it relates to Jethro’s views, is particularly limited. Although the terms of s 6 are set out earlier in the Family Court decision, limited attention is given to Jethro’s views in the decision itself. They are expressed in three paragraphs, followed by the caution in Brown v Argyll.
[126] While weight is largely a matter for the Judge, I am drawn to conclude that the Judge attached such little weight to Jethro’s views as to have fallen into error. As a result, there was a failure to consider possible outcomes that could better have taken those views into account. Jethro’s views have been expressed clearly and consistently. They are compelling. They are certainly not determinative but the degree to which they were disregarded did in my view tend to lead the Judge to give insufficient consideration to alternative options.
Cooperation and communication between the parties
[127] It is submitted for Mrs Drake that insufficient consideration was given to whether greater cooperation between the parties could have been achieved in Town A.
[128] Counsel for the child has referred to examples in the evidence underscoring the finding that Mrs Drake was unable to support Jethro’s relationship with Mr Drake. Ultimately the Judge found that Mrs Drake was “failing” with ongoing cooperation and that Mr Drake was “not without fault”.86 He concluded that there would be greater cooperation if both parents lived in the same area and shared in his care.87
[129] I see the Judge’s conclusions on the risks posed by the way in which Mrs Drake supports Jethro’s relationship with his father as being open to him on the evidence. It was implicit in the order for equal shared care that geographical distance between the parties did not help in efforts to achieve better cooperation and communication.
86 [Drake v Drake], above n 1, at [115].
87 At [115].
The child’s cultural identity
[130] It is submitted for Mrs Drake that the Judge erred in finding that Jethro “will be better placed to become a more complete citizen of modern Aotearoa New Zealand in his father’s care as he will better a much better understanding of te ao Māori”.88 It is said that, while the Judge identified Jethro’s exposure to Māori through activities through which his father is involved in Town B, s 5(f) is focused upon a child’s identity; in this case his lineage through a [country] father and a [country] mother. Certainly, it was said, a better understanding of te ao is a very good thing. However, there are other factors in Jethro’s identity. This principle, it was said, should have been seen as a neutral factor.
[131] It was submitted for Mr Drake that there was evidence to support the Judge’s findings on this principle. In particular, when the Court asked whether Mr Drake would be willing to relocate to Town A, he said that he wished to “immerse [Jethro] in the bi-cultural nature of our rohe”. Mr Drake’s approach stems from his employment with a Māori [employer] in Town B, his learning of te reo and his own immersion in te ao Māori.
[132] Ms Gelston did not make particular submissions on this ground of appeal other than to note that Jethro is a child born to parents who are both immigrants and who have fully immersed themselves in New Zealand’s cultural identity but in different ways. As Ms Gelston said, Jethro experiences and learns a great deal as a result of both his parents’ world views, influences and experiences.
[133] Given that the Judge heard no evidence on the application of this principle, I agree it was perhaps not entirely in order to address it as he did. It might be said, in addition, that the Judge overlooked Mrs Drake’s evidence about the connections that Jethro has in his Town A community.
[134] In any event, I do not see this ground of appeal as carrying much weight. The Judge’s reasoning on the point do not suggest that his application of the s 5(f) principle was a determinative factor in his decision.
88 At [121].
Summary of findings
[135] For the reasons I have given, I do not consider that the Judge approached his assessment of the parenting order applications from an erroneous starting point. Faced with competing parenting application orders from parents living in different places, it was to be expected that the Judge would address issues of care arrangements and relocation together. Moreover, it is clear that the Judge was focused on whether it was in Jethro’s best interests for him to remain primarily in the care of Mrs Drake or whether change was needed. The Judge identified the primary risk to Jethro as the influence of Mrs Drake’s negative views of Mr Drake on Jethro’s relationship with his father. The Judge was entitled to find, on the evidence before him, that change, including an order for equal shared care in one location, was appropriate.
[136] However, I am of the view that the Judge erred in failing to consider appropriately whether equal shared care could be delivered in Town A. The Judge needed to consider more completely the application of the continuity of care principle
– in s 5(d) – and the extent to which the identified risks for Jethro could be addressed through ordering shared care in Town A. In addition, while the Judge did give some weight to Jethro’s views on relocation, I am satisfied that, while those views could not be determinative, they needed to play a considerably more material part in the overall assessment.
[137] The choice of Jethro’s place of residence was adopted largely on a pragmatic basis, determined by the preference of Mr Drake. It needs to be all about Jethro. Jethro appears to be a delightful child with two loving parents, each of whom cater for his needs in different ways. I have no doubt that these proceedings have exposed for Mrs Drake and Mr Drake the issues they need to address to ensure that Jethro, without compromise, can meet his full potential. It will be for both Mrs Drake and Mr Drake to encourage Jethro to have a good relationship with the other parent, to communicate with each other in positive ways and to create an environment for Jethro that is consistent and free from exposure to any further adult conflict.
Reassessment based upon findings
[138] Under r 20.19 of the High Court Rules, the Court, after hearing an appeal, may do any one or more of the following things:
(a)It may make any decision that it thinks should have been made by the Family Court.
(b)It may direct the Family Court to –
Rehear the proceedings; or
(ii)Consider or determine (whether for the first time or again) any matters the Court directs; or
(iii)Enter judgment for any party to the proceeding the Court directs; and
(c)It may make any order that it thinks just, including any order as to costs.
[139] For Mrs Drake it is said that, in the event that the appeal was upheld, the Court should make its own decision in substitution for the decision of the Family Court and make orders accordingly. That is not a position I understand to be resisted by counsel for the respondent or by the lawyer for the child having regard, in particular, to s 4(2)(a)(i) of the Act which provides that any person considering the welfare and best interests of a child in his or her particular circumstances must take into account the principle that decisions affecting the child should be made and implemented within a time frame that is appropriate to the child’s sense of time.
[140] As a result of the errors I have found, I come to my own assessment of the merits of the case afresh. I agree that it will be appropriate, in terms of r 20.19 of the High Court Rules, to make a decision that I believe should have been made by the Family Court. In my view, that decision would be in the form of a parenting order that provides for Jethro’s day-to-day care to be shared equally between his parents in Town A. An order of that sort gives Mr Drake the opportunity either to move to Town A to take advantage of the order or to otherwise adjust his living arrangements
in order to do so. Otherwise, the terms of the existing parenting order will remain in place.
[141] In making an order of this sort, I focus on the welfare and best interests of Jethro in terms of s 4 of the Act.
[142]I turn to s 5 of the Act in light of the findings I have made.
[143] Section 5(a) is focused on Jethro’s safety. As the Judge found, there are no risks to Jethro’s physical safety. The Judge’s concerns about Jethro’s emotional safety are addressed through the equal parenting order – but also through the points made about insight I have made in [113] above. Moreover, I go on to direct counselling for Mrs Drake to further minimise any risks under this head.
[144] The s 5(b) principle is that Jethro’s care, development and upbringing should primarily be the responsibility of his parents. The Judge found that the principle is able to be given effect to through an equal shared care arrangement. That will continue to be the case to the extent that Mr Drake wishes to give effect to the orders.
[145] Section 5(c) expresses the principle that a child’s care, development and upbringing should be facilitated by ongoing consultation and cooperation between his parents and others having a role in his care. Again, as the Judge found, that will be facilitated through shared care arrangements.
[146] Section 5(d) is the continuity of care principle. For the reasons I have given, it is my view that the principle is with little doubt best met through Jethro continuing to have Town A as his principal place of residence combined with as much contact as Mr Drake, in accordance with the parenting order I go on to make, is prepared to have.
[147] Section 5(e) is concerned with Jethro’s relationship with both of his parents and with his family group. That relationship will in my view be strengthened by the opportunity for equal shared care.
[148] Section 5(f) is concerned with identity and the need to preserve and strengthen it. The Judge’s conclusions on this point, centring upon Jethro developing a better
understanding of te ao Māori through contact with his father can be given equal effect through the orders I go on to make.
[149] Section 5(g) was inserted into s 5 on 16 August 2023, after the decision under appeal was given. To that extent, it is not relevant to a consideration of whether, in terms of the appeal principles applied, the appeal should be allowed but it has some relevance when considering the matter afresh and aligns in any event with my findings on s 6. Jethro has been given opportunities to participate in the decision through the work of Ms Gelston and, for the reasons I have given, I see Jethro’s clear views on his preference to remain in Town A as being, while by no means determinative, a factor that is particularly relevant in the decision I come on to make.
[150] Accordingly, in approaching the matter on the basis of the points on which the appeal has been allowed, and having regard to the Judge’s conclusions on other relevant considerations with those adjustments in mind, it is my view that the equal parenting order made by the Judge should be maintained but that it should be maintained in Town A. Accordingly, material parts of the parenting order at [133] of the Family Court decision need to, effectively, be reversed to enable for that day-to- day shared care in Town A if Mr Drake so wishes while maintaining the current parenting orders if shifting is an option that Mr Drake does not wish to take up.
[151] Counsel for the appellant submitted that, in the event that I was make an order of this sort, the February 2020 orders might be adjusted on the basis described by Mrs Drake in her 24 January 2023 affidavit. However, I do not see those adjustments as being appropriate to the extent that they provide some restrictions on the parenting orders that are in place.
[152] I see the orders that I next make as addressing the points of concern raised in this decision while mitigating any ongoing risk of gatekeeping on the part of Mrs Drake through the prospect of equal shared care arrangements, through the general insight that these proceedings have brought, and through the counselling measures I go on to direct.
Orders
[153]The appeal is allowed.
[154]I make a parenting order in the following terms:
(a)Jethro’s day-to-day care is to be shared equally, in Town A, between his parents, Mrs Drake and Mr Drake, on a week-by-week basis. Practical effect can be given to this equal sharing order through Mr Drake moving to the Town A area or otherwise adjusting his living arrangements to give effect to it.
(b)The week about arrangement may begin at any time at which Mr Drake chooses to take advantage of the order within the next 12 months, provided he gives Mrs Drake 14 days’ notice of his intention to do so. From that point, changeover will occur during school term time at 3 pm each Friday.
(c)Orders (vi) to (xviii) of the parenting orders made by the Family Court at [133] of the decision in [Drake v Drake][2023] NZFC 2975 will, in the case that the shared care arrangements are in place, apply with the exception that the order in subpara [133 (xiv)] of that decision is to be replaced with the following order:
(i)Jethro shall attend a primary school in Town A nominated by Mrs Drake. His parents shall consult and determine together his next schools after that.
(d)In the event that Mr Drake does not take up the equal sharing arrangements, then the provisions of the parenting order that is currently in place – dated 14 January 2020 – will remain in place.
(e)Mrs Drake is to undertake counselling with a registered psychologist who has appropriate experience and expertise. The purpose of that counselling is to address the ways in which she has projected and/or is
projecting any negative views to Jethro of Mr Drake and to address ways in which she can support Jethro in having a good relationship with Mr Drake. She is to attend two sessions a month over a six-month period. The psychologist should be given copies of:
(i)The report written by Dr Madhu Rai under s 133 of the Care of Children Act 2004 dated 15 October 2022;
(ii)The Family Court’s decision in [Drake v Drake] [2023]
NZFC 2975; and
(iii)This decision.
[155] Costs were not addressed in the parties’ submissions and it may be that, in the interests of the positive relations I mention in [137] above, the parties would wish to let costs issues rest. However, in the event that costs are sought, then Mrs Drake may file a memorandum within 15 working days of the date of this decision and Mr Drake may file any memorandum in response within a further 15 working day period. Any such memoranda (including schedules) should not exceed five pages in length.
Radich J
Solicitors:
Haigh Lyon, Auckland for Appellant
Govett Quilliam, New Plymouth for Respondent
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