Evans v Evans
[2024] NZHC 349
•28 February 2024
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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2023-404-1383
[2024] NZHC 349
IN THE MATTER of an appeal against a decision of the Family Court at Auckland dated 26 May 2023 BETWEEN
JEREMY EVANS
Appellant
AND
HANNAH EVANS
Respondent
Hearing: 17 October 2023 Counsel:
E Eggleston and J W Howell for Appellant
V A Crawshaw KC and G G Edwards for Respondent M K Headifen for Children
Judgment:
28 February 2024
JUDGMENT OF BREWER J
This judgment was delivered by me on 28 February 2024 at 2 pm pursuant to Rule 11.5 High Court Rules.
Registrar/Deputy Registrar
Solicitors/Counsel:
Lance Lawson (Mt Maunganui) for Appellant Morris Legal (Auckland) for Respondent Michael Headifen (Auckland) for Children
EVANS v EVANS [2024] NZHC 349 [28 February 2024]
Introduction
[1] Mr Jeremy Evans1 appeals the reserved decision of Judge I A McHardy delivered on 26 May 2023.2
[2] Judge McHardy’s decision determined applications for the day-to-day care arrangements for the parties’ two children, namely Thomas Evans (born 24 February 2016) and Olivia Evans (born 9 October 2018).
[3] Judge McHardy ordered that the respondent, Mrs Hannah Evans, has the role of providing fulltime day-to-day care of the children. Mr Evans was permitted contact with the children as follows:
Times, location, and nature of contact:
(a)Every second week from Friday after school and day care. If school and day care are not in session, from 3pm until Monday morning. If school and day care are not in session, until 3pm on Monday.
(b)In the event that school and day care are not in session, the children are to be delivered by [Hannah] to [Jeremy’s] house at the beginning of his contact at 3pm on Friday and [Jeremy] is to deliver the children to [Hannah’s] house at the conclusion of his care at 3pm on Monday.
Special days
Notwithstanding the above, the following special arrangements set out below shall occur on the specified days below:
School holidays
1.During the school term holidays each party shall have care of the children for one week.
2.If [Jeremy’s] weekend with the children falls on the first weekend of school holidays, then he shall have them in his care from his usual pick up on Friday in the school terms through until Friday in the first week. He shall then have them again at 3pm on Friday of the second week for the last weekend.
3.If [Jeremy’s] weekend falls on the middle weekend, then he shall have the children from 3pm Friday in the first week until 3pm Friday in the second week.
1 This is a nom de guerre, as are the names of the respondent, the parties’ children, and the appellant’s brother.
2 [Evans] v [Evans] [2023] NZFC 10351.
Christmas/End of year holidays
4.The term-time arrangement shall continue through to 24 December.
5.In 2023 and all odd numbered years thereafter, the children shall be in the care of [Hannah] from 3pm Christmas Eve until 3pm Christmas Day and in the care of [Jeremy] from 3pm Christmas Day until 1 January 2024.
6.In January 2024 and all even numbered years thereafter, the children shall be in the care of:
(a)[Hannah] from 3pm on 1 January to 3pm on 8 January;
(b)[Jeremy] from 3pm on 8 January to 3pm on 15 January;
(c)[Hannah] from 3pm on 15 January to 3pm on 22 January:
(d)[Jeremy] from 3pm on 22 January to 3pm on 29 January;
(e)Thereafter the usual term-time arrangement shall commence.
7.In 2025 and all odd years thereafter the arrangements in paragraph 6 above shall apply in reverse.
Mother’s Day/Father’s Day
8.If the children are not in the care of the parent whose special day it is, then they shall be in the care of that parent from 10am to 6pm. The parent who’s care the children are in shall drop the children to the other parent’s house at 10am. The other parent shall then drop the children back to the other parent by 6pm.
[4] There were conditions stipulated for Mr Evans’s contact with the children. One was that his brother, Mr Silas Evans, was not to be present.
[5]The order was not everlasting:
Variation or discharge of this order
Any person affected by this order, or a person acting for a child who is the subject of this order, may apply to the court to vary or discharge this order. Leave (permission of the court) is required if the application is substantially similar to the previous proceedings and the order was made less than two years ago.
[6] Mr Evans chose not to appear at the hearing before Judge McHardy. Nor was he represented. The Judge had regard to his affidavit and commented in his decision
that he was in no doubt as to Mr Evans’s position and that cross-examination of Mr Evans was not essential.3
[7] The Amended Notice of Appeal sets out many grounds of appeal, although Mr Eggleston said that five were “overarching”. Four challenge factual findings made by the Judge. The fifth avers that the Judge was wrong to award costs of $35,515 against Mr Evans. I will address the grounds set out in the Amended Notice since none were abandoned.
[8] Mr Eggleston, appearing for Mr Evans, submits that since the appeal is by way of rehearing4 I am required to reach my own view of the merits of the case based on the evidence before Judge McHardy.5 That is correct. But Mr Evans must point to error on the part of the Judge and satisfy me that I should reach different conclusions. I must also bear in mind that the Judge had the advantage of seeing the respondent’s witnesses. Mrs Evans, her mother and Dr Sarah Calvert were cross-examined by the lawyer for the children.
[9] The grounds of appeal are particularised in detail. It is necessary for me to summarise relevant parts of the Judgment so that the grounds can be seen in context.
The Judgment under appeal
[10] The Judge set out the relevant basic legal principles under the Care of Children Act 2004 (COCA):
[22] The law requires that the welfare and best interests of [Thomas] and [Olivia] and their particular circumstances must be the first and paramount consideration in this proceeding.
[23] Section 5 of the COCA sets out the 6 principles that must be taken into account when the Court considers what best serves a child’s welfare and best interests. While all principles included in s 5 of the COCA are important
3 At [20].
4 Care of Children Act 2004, s 143.
5 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
considerations, of particular relevance to the issues before the Court are ss 5(a)6 and 5(e).7
[11] The Judge noted that Thomas was diagnosed with autism spectrum disorder when he was four years old and that at age seven a report ordered by the Court on 31 August 2022 to address the treatment of any special needs had yet to be prepared.
[12] Shortly afterwards, the Judge referred to s 5(a) of COCA in the context of the case:
[27] The principle in s 5(a) of the COCA is that a child’s safety must be protected from all forms of violence from all persons. Section 5(a) should be given particular emphasis when establishing what is in the welfare and best interests of the children.8
[28] It is submitted that the context of s 5(a) is far wider than safety from physical violence. A child must also be protected from any threats to their physical, physiological or psychological well-being and development. In Fontaine v Millard, Judge Moss addressed ss5(a) of the COCA at [12]:
Safety is the first consideration. The expression in the legislation is mandatory. A safety assessment requires more than consideration of immediate physical safety. It requires consideration of broad matters of child development, and at times balancing the consequences in one set of circumstances with the consequences in another. This will require a balancing of risk.
[29] The submission is made that the question for the Court in this case is whether there is an unacceptable level of risk to the children in relation to the allegations the parties have made against each other, which will impact on the children’s care arrangements. Counsel for the applicant has referred the court to concerns held by the applicant.
[13] Mrs Evans has an alcohol addiction. On 17 March 2022, having decided that Mrs Evans had relapsed, Mr Evans and his brother, Silas, removed Olivia from Mrs Evans’s home. On 21 March 2022 he collected Thomas from school. The Judge recorded:
[37] It is argued that beyond the allegation of physical violence, [Mr Evans’s] conduct since 17 March 2022 has caused emotional harm to the children by negatively affecting the children’s relationship with [Mrs Evans]
6 “[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”.
7 “[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”.
8 Fontaine v Millard [2016] NZFC 3545 at [12].
and causing significant dislocation of their settled care arrangements. It is noted that [Mr Evans’s] conduct includes, but is not limited to, the following actions:
(a)Retaining the children without justification for 22 days from 21 March 2022 until 8 April 2022 and refusing to permit contact with [Mrs Evans] except to the most minimal extent.
(b)Retaining the children in breach of the interim parenting order on 21 November 2022 resulting in a warrant to enforce being issued on 23 November 2022 and an order preventing the children’s removal from New Zealand.
(c)Threatening to retain the children in breach of the interim parenting orders on 17 December 2022 despite providing an undertaking on 16 December 2022 that he would not retain the children in his care without further orders from the Court. This resulted in the Court issuing another warrant to enforce the interim parenting order.
(d)Refusing to consent to [Thomas] attending a paediatrician’s appointment which resulted in a hearing being required and the Court making directions under s 46R of the COCA.
(e)Embarking on a campaign of psychological abuse against [Mrs Evans] which has impacted the children, particularly given that he has referred to [Mrs Evans] in a derogatory way in multiple emails copied to the children’s doctors and the children’s school principal.
[14] The Judge recorded Mr Evans’s safety allegations against Mrs Evans and addressed the issue of her alcoholism:
[42] [Mrs Evans] accepts that she is an alcoholic, that she has relapsed in the past and that these relapses were serious in nature. However, she continues to address her alcoholism. She has attended Alcohol Anonymous (AA) since 2005 and remains committed to her sobriety through the AA 12 Steps Programme. She attends AA meetings regularly, remains involved in service groups with AA and attends regular counselling sessions with her psychologist, Christine Cowan-James. She has not consumed any alcohol since December 2019.
[43] [Mrs Evans] denies [Mr Evans’s] allegations that she drank alcohol and relapsed on 17 March 2022. Her view is that [Mr Evans’s] allegations are retaliatory in nature and that there was no basis for his alleged concerns on 17 March 2022. As recognised by Judge Burns at the Pickwick Hearing, whilst allegations were made of a relapse, there was no actual proof that had happened. Rather, [Mr Evans] has seized upon [Mrs Evans’s] alcohol recovery in an attempt to dictate and control the children’s care arrangements.
[44] Notwithstanding this, [Mrs Evans] has taken every step to ensure that sufficient evidence is before the Court to demonstrate the children are not at risk in her care. She has provided a psychologist report, urine and blood tests
establishing alcohol and/or medication use, along with three reports from her doctor setting out the medications she is prescribed, their dosage and the impact on her when taken in conjunction with each other and with alcohol.
[45] In addition, since 7 April 2022, she has administered the Smart Start IN-HOM device once daily between 5 pm to 7 pm. By the date of the hearing, she will have administered the device for 401 days. She has returned a nil result for alcohol for every test result. Technical issues have occurred with the device on two occasions (November 2022 and April 2023) which have been explained in correspondence and evidence.
[46] The evidence [Mrs Evans] has filed demonstrates that in the past she has sought treatment when she has relapsed and has a solid support network of people in her life to ensure treatment is sought quickly and complied with.
[47] Similarly, [Mrs Evans] has accepted that she has struggled with anxiety and depression in the past. However, she denies [Mr Evans’s] allegations that she has misused the medication that has been prescribed to her. [Mrs Evans’s] doctor made clear in a report dated 9 May 2022 that:
Although there are multiple medication [sic] been used here they have all been careful dose adjusted to achieve good control of symptoms without unnecessary and incapacitating adverse effects. The treatment is currently affective and stable. There is no impact of this medication on the ability to function independently as a parent.
[15] The Judge then set out, with some editorial conclusions, the positions adopted by both parties regarding their respective fitness to care for the children.
[16]Judge McHardy commenced his discussion of the evidence:
[138] The evidence before the Court is voluminous. It clearly shows a concerning power and control dynamic on the part of [Mr Evans]. He has sought to use a situation of his making to take control of the parenting of their children. He has not been prepared to step back and consider whether his assessment of the situation on 17 March was correct. He has jumped to the conclusion that there has been a relapse on the part of [Mrs Evans] and has endeavoured to persuade the Court of this ever since.
[139] The evidence does not support this conclusion. The finding of this Court is that there was in fact no relapse. Consequently, [Mr Evans] had no justification for attempting to uplift the children that night against the mother’s wishes. What has followed that action has been an orchestrated campaign aimed at winning the Court battle. It is very apparent that in this action [Mr Evans] has lost the ability to focus on what is in the best interests of these children. [Mrs Evans’s] actions on the other hand do demonstrate an appropriate focus on the needs of these children. She was able to display a good understanding of the children’s present needs when cross-examined by Lawyer for Child. This particularly applies in respect of [Thomas’s] needs.
[17] The Judge concluded:
[157] The totality of the evidence in this case does point to the fact these parties will not be able to engage in a shared care arrangement. What has happened since 17 March has demonstrated that there is not a will on [Mr Evans’s] part to co-operate unless [Mrs Evans] does what he expects of her. I accept the submission made that [Mr Evans] has subjected [Mrs Evans] to an onslaught of emotional and psychological (including litigation) abuse throughout these proceedings. It would not be in the children’s welfare and best interests for an order to be put in place which will allow that dynamic to continue. There is no sign of [Mr Evans’s] conduct abating.
[158] [Thomas] has special needs. This seems to have been minimised by [Mr Evans]. This raises a concern as to whether this will continue if a shared care arrangement is continued.
[159] I have come to the view, given the totality of the evidence in this matter, particularly the unhealthy dynamic that exists because of [Mr Evans’s] clear wish to dominate, that a shared care arrangement will not work long term for these children. Their needs are best met by a traditional primary caregiver being in place for them. This is best provided by [Mrs Evans].
[160] The draft orders provided for consideration by the Court in my view meet the needs of these children arising from the dynamics that exist in this family relationship. I agree with the concern relating to [Mr Silas Evans’s] involvement in this family. I consider the condition imposed by Judge Burns, that the children not have contact with [Mr Silas Evans], remains in place. It will ultimately be for [Mrs Evans] to decide if and when that condition can be relaxed.
The Appeal
[18] The first ground of appeal is that the Judge was wrong to maintain the condition relating to Silas Evans’s no contact with the children.9 The detail is:
(a)The Judge failed to properly assess:
(i)the impact that the condition would have on children being unable to have regular contact with the extended paternal family and to participate in various events/significant milestones;
(ii)the close relationship that [Silas Evans] has with the children and the appellant;
(iii)[Thomas’s] strong wish to have contact to [Silas Evans];
(iv)that too much weight was afforded to [Silas Evans’s] involvement on 17 and 24 March 2022;
(v)that too much weight was afforded to his other conduct to which there is some justification to explain;
9 This is one of the “overaching”grounds.
(vi)that natural justice necessitated the specific issues of concern being put to [Silas Evans] given he was a witness in the appellant’s case;
(vii)that any concern could be addressed by the (now) acceptance of [Silas Evans’s] undertaking or other legislative avenues;
(viii)the importance of s 5(e) of the Care of Children Act 2004.
(b) Additionally since the hearing:
(i)[Silas Evans] now lives with the appellant which underscores the impracticability of the condition in such circumstances.
[19] It is clear from the evidence that Mr Silas Evans has involved himself with his brother in the ongoing disputes with Mrs Evans to an unusual degree. He does not view Mrs Evans favourably and there is a risk that he would undermine the children’s relationships with their mother and her family. His degree of involvement in withholding the children from Mrs Evans from 17 March 2022 to 8 April 2022 was unusual for a brother and an uncle.
[20] Judge McHardy was entitled to take account of the decision by Judge Burns on 11 April 2022.
[21] Further, there was some video evidence of an interaction between Mrs Evans, her mother and Mr Silas Evans where the latter, on Facetime, controlled Mrs Evans’s ability to speak to her children. In that conversation, Mr Silas Evans said:10
It is [Silas] here [Hannah]. You need to grow up a bit… I’m here to supervise, it’s up to me and my discretion where this call progresses and right now you are on your first warning. You are only going to get two.
[22] After considering that video, Judge McHardy said:11
There was no right for [Silas Evans] to deal in this situation. There was simply no justification and it is that discussion and the later involvements of [Silas Evans] which would justify retention of the condition that was imposed by Judge Burns that the children not have contact with him. These interactions simply show that he has no insight into the needs of the children. Rather, it shows a behaviour pattern which is quite abusive.
10 [Evans] v [Evans], above n 2, at [101].
11 At [104].
[23] I have considered the particulars quoted in [18] in support of this ground of appeal. They do not, individually or collectively, satisfy me that the Judge was in error in maintaining the condition that Mr Silas Evans cannot see his niece and nephew. The Judge was looking at the overall situation, including Mr Silas Evans’s relationship with the appellant. He was entitled to do so.
[24] The second ground of appeal is that Judge McHardy was wrong in finding that Mrs Evans had not relapsed. The submission is that the evidence was inconclusive. It is submitted the Judge failed to properly assess:
(a)that no independent testing was completed sufficiently close to 17 March 2022 to confirm that there was no relapse;
(b)that anomalies in the breath testing results were not explored at the hearing;
(c)that no hair follicle test (HFT) was provided in relation to the incident on 17 March 2022 despite direction to do so and requested multiple times from the appellant’s lawyer;
(d)that no blood test was provided promptly in relation to the incident on 17 March 2022 despite direction to do so. On 6 May2022 the test was undertaken which showed a possible indication for ethanol (less than 2 mmol/L);
(e)that no satisfactory response was given why the respondent did not undertake a breath test with the Police on 17 March 2022;
(f)too much weight was afforded to the breath test results 5 days after the event and the explanation for the delay, the evidence from the Police and the respondent’s mother;
(g)insufficient weight was afforded to the respondent being on notice since 18 March 2022 about the appellant’s concerns on relapse (correspondence from McVeagh Fleming) and the occasion where a relapse occurred without the need to attend a care facility;
(h)the possibility that the respondent’s impaired condition was due to medication.
[25] Having considered the evidence against this detailed assault on the Judge’s conclusion, I do not find an error on the part of the Judge. The Judge had all the evidence before him. I have set out his conclusions above. In addition, the Judge gave weight to video evidence of what happened on 17 March 2022 and Mrs Evans and her mother were both cross-examined on the situation. There was evidence from neighbours and the police made no record of concerns about Mrs Evans being drunk.
[26] As I have already acknowledged, this appeal proceeds by way of rehearing and I must reach my own conclusions. But this is not a retrial. It is not for me as a Judge on appeal to replace the Judge whose decision is being appealed. If I am directed to error then I will examine whether there has been an error and if I disagree with the Judge then I will give effect to my view. That is my obligation. In this case, there was ample evidence to justify the Judge’s conclusion.
[27] The third ground of appeal12 is that the Judge was wrong in finding that Mr Evans downplayed Thomas’s autism, minimises the diagnosis and has procrastinated in having him seen by a paediatrician. The Judge was wrong to raise this in the context of a continuation of the shared care arrangement. It is submitted that, in particular, the Judge failed to properly assess:
(a)that the initial diagnosis via teleconference was based on an assessment on 6 April 2020 and the paediatrician had not seen [Thomas] since 3 May 2021 where [Thomas] was reported as High Functioning ASD (mild autism);
(b)that Dr Stanley had invited that a second view be obtained;
(c)that no updated paediatrician’s report under s 133(1B) of the Care of Children Act 2004 had been prepared on the brief as directed to comment on inter alia, any diagnosis of [Thomas’s] special needs, the extent of any special needs and likely management of those needs and how best to manage those special needs into the future. By definition (s 133(3) of Care of Children Act 2004) the report was ‘essential’ for the disposition of the proceedings;
(d)that Dr Calvert’s oral evidence was that it was ‘essential’ to have a report on how [Thomas’s] ‘autism played out’;
(e)the appellant’s evidence was that he did not observe autistic behaviours from [Thomas] when he was in his care. Instead, the oral evidence of the respondent was relied upon only, to which too much weight was afforded as opposed to [Thomas’s] school reports, progress and absence of a teacher aide;
(f)the delays in having [Thomas] assessed were brought about by Dr Smith declining the appointment and then Dr Speeden’s inability to see him quickly;
(g)the proceedings had now concluded.
[28] I do not find that the Judge was in error.
12 This is one of the “overarching” grounds.
[29] It might be that looking closely at the evidence the Judge somewhat overstated Mr Evans’s role in the delay in having Thomas seen by a paediatrician, but the Judge’s principal concern was that Thomas had not been seen by a paediatrician and that the conduct of Mr Evans overall was such that control of this aspect needed to be vested in Mrs Evans. Looking at the situation overall, that was a decision open to the Judge. Requiring Mr Evans and Mrs Evans to interact constructively for the welfare of Thomas had little hope of success.
[30]The amended notice of appeal further states:
5.The Family Court was wrong in making findings/reference about the other concerns including emotional harm as set out in [37] and appellant’s breach of orders. In particular the Judge failed to properly assess:
(a)there was justification for his retention of the children from 21 March 2022;
(b)there was justification for his initial retention of [Thomas] on 21 November 2022 given the respondent’s irregular alcohol test result. This was clarified by lawyer for child following the directions of Judge Tan on 21 November 2022. No warrant was issued;
(c)there was initial justification for the appellant wishing to retain the children on the weekend of the 17 December 2022 due to the respondent’s failure to administer complete pain medication 3 days after their tonsillectomies.
[31] There was no error on the part of the Judge. Mr Evans’s conduct in breach of court orders was identified by the Judge and put into the overall description of the breakdown in the relationship of Mr Evans and Mrs Evans.
[32]The next ground of appeal is:13
6.The Family Court Judge was wrong in making findings that the parties would not be able to engage in a shared care arrangement. In particular the Judge failed to properly assess:
(a)that the parties had managed a shared care arrangement 50:50 since separation October 2021 including attending multiple 10 events together without issue;
13 This is part of an “overarching” ground.
(b)both parties agreed to urgent tonsillectomies for the benefit of the children in December 2022 and attended various medical appointment together;
(c)that the respondent had proposed up to the hearing a 9:5 arrangement and/or 8:6. He did not have the opportunity to respond to the 11:3 arrangement which came via the respondent’s submissions on 24 April 2023;
(d)that in any event a good working relationship is not a pre- requisite for an equal shared care arrangement. Any concerns can be addressed through prescribed orders;
(e)the impact on the children of a significant change from 50:50 arrangement (running since October 2021) to an arrangement of contact for 3 nights per fortnight;
(f)the advantages that shared care would provide in relation to balancing of risk.
[33] Again, the Judge was not in error. The events of 17 March 2022 and subsequently justified the Judge’s conclusion that a shared care arrangement was no longer feasible in the long term. The Judge’s conclusion that the needs of the children are best met by a traditional primary caregiver being in place for them, and preferring Mrs Evans for that role, was clearly available to him.
[34]The next ground of appeal is:
7.The Family Court Judge was wrong in finding that the respondent had ‘extensively’ addressed the appellant’s concerns about discussing adult issues, bad mouthing and alienating from the appellant’s family. In particular:
(a)the failure to give any weight to the appellant’s third party evidence;
(b)the failure to give any weight to the respondent’s own evidence accepting some bad mouthing and adult issue discussion;
(c)the failure to consider the occasions where the respondent breached the orders of 11 April 2022 (paragraph 4 (a)) by attending the appellant’s contact with the children.
[35] This is not a matter which the Judge examined in great detail. But he did have the advantage of seeing Mrs Evans give evidence. I am satisfied that this was not an issue which, if decided as Mr Evans would wish it to be decided, would, in the context of all of the evidence, have made a difference to the outcome.
[36]I am satisfied the Judge was not in error.
[37]The next ground of appeal is:
8.The Family Court Judge failed to give sufficient weight to the views of [Thomas] who sought a week about arrangement and/or [Thomas] was not given sufficient opportunity to express his views on matters effecting him (in particular the respondent’s proposal to reduce the appellant’s care from a 7:7 to a 3:11) (section 6 of the Care of Children Act 2004).
[38] I accept that pursuant to s 6 of COCA, any views of the child must be taken into account by the Court. That does not oblige the Court to act in accordance with any view expressed by a child. For example, the age of a child is clearly relevant to assessing their maturity and understanding of the situation.
[39]Thomas was seven years old at the time of the judgment.
[40] Judge McHardy did address the views of the children which were obtained by the lawyer for the children in meetings with Thomas in April 2022, and with Thomas and Olivia on 8 May 2023.
[41] It is not at all clear from the report of the lawyer for the children dated 12 May 2023 whether Thomas’s advice that he wanted a “week about care arrangement with each parent” was uninfluenced by Mr Evans.
[42] The lawyer for the children, Mr Headifen, filed submissions in the appeal before me. For this purpose, he met with the children at their school on 11 October 2023. Thomas said he was sad that his proposal for a week about care arrangement had not been made. He said he thought his mother was trying to punish his father because his father had taken him for a four week period after the incident in March 2022. Thomas then suggested that he could have two consecutive weeks with his mother, and one week with his father.
[43] Thomas said that the reason he wanted more time with his father was that his grandfather is 80 years of age and Thomas was worried he would not have long to live.
He also said he wanted to see his Uncle Silas more and he thought it was his mother who did not want him to see his grandfather and his uncle.
[44]Mr Headifen concluded:
13. [Thomas] did not appear to have any concerns about the care arrangement apart from his proposal not being implemented and not being able to see his grandfather and his uncle. He indicated that he had no worries in either home and apart from what he had told me things were “pretty good” for him.
[45] Olivia was spoken to by Mr Headifen at her school. She was five years old. Olivia told Mr Headifen that her father would like a seven days each care arrangement. When asked what she would like, she responded that she would like seven days each. She agreed with a suggestion that this would be fair. Mr Headifen concluded:
22. In respect of the children’s stated views, it is difficult to ascertain whether these are the children’s own views or whether they are simply reflective of their father’s views. It is accepted that all children’s views will be influenced by their parents and all children’s views will contain reflections of a parent. In this case I am uncertain of the extent that the children’s views are their own. The children had no difficulty in telling me what they perceive their father’s views are. Apart from the discussion with [Thomas] of two weeks and one week care arrangement the children’s views were similar to that of what they told me were their fathers views. They did not express to me what their mother’s views were.
[46] I find that the Judge gave sufficient weight to the views of Thomas given his age and the overall situation which the Judge had found. I see nothing in the further report of Mr Headifen that would cause me to take a different view.
[47]The next ground of appeal is:
9.The Family Court Judge made critical findings against the appellant without him being heard and cross examined. In particular:
(a)opportunity to respond to the 11:3 care proposal;
(b)opportunity to respond to the respondent’s oral evidence that she spoke with slurred speech when she had a migraines throughout the marriage;
(c)he engaged in a ‘gas lighting exercise against’ the respondent;
(d)his clear wish to dominate;
(e)he subjected her to an onslaught of emotional and psychological abuse.
[48] There is nothing in this point.
[49] In his oral submissions, Mr Eggleston urged me to take a stricter approach to what he referred to as natural justice because his client did not appear at the hearing and nor did his witnesses. But that was the choice of Mr Evans. He had the opportunity to appear and be represented. He could have called witnesses. In any event, the Judge took into account the affidavits that had been filed by and on behalf of Mr Evans.
[50] The Judge was required to decide the case on the evidence before him. The standard of proof was the balance of probabilities. He was not constrained against making findings critical of Mr Evans.
[51]The final ground of appeal is:14
10.The Family Court Judge was wrong in awarding costs to the respondent in the amount of $31,515 (decision of 4 July2023). In particular the Family Court Judge:
(a)erred by finding that he did not pursue a genuine or responsible argument during the proceedings;
(b)failed to consider that a determination on the parenting arrangements had to be made regardless including safety findings on a number of matters not just related to alcohol issues.
[52] The background is set out in the submissions of counsel for Mrs Evans:
127.On 2 June 2023, [Mrs Evans] filed submissions setting out why an award of scale costs of $31,515 was appropriate. Those submissions outline [Mrs Evans’s] position as to why [Mr Evans] did not advance a “genuine or responsible argument” and why costs in respect of preparation for a week long hearing were appropriate.
128.Counsel relies on the content of the costs submissions dated 2 June 2023 in support of [Mrs Evans’s] position that the order as to costs made by Judge McHardy on 4 July 2023 was correct.
14 This is an “overarching” ground.
129.[Mr Evans] had opportunity to respond to [Mrs Evans’s] submissions as to costs and put forward his position as to why a different order would be appropriate. Paragraph [169] of Judge McHardy’s judgment directed [Mr Evans] to file a reply memorandum within a further seven days after receipt of [Mrs Evans’s] submissions, being 9 June 2023 (three weeks after the Family Court hearing on 19 May 2023). [Mr Evans] failed to comply with this direction.
[53] The costs award made by the Judge was orthodox, to scale, and appropriately directed to preparation for what was anticipated to be a five day hearing. It was cut short because Mr Evans did not appear.
[54]I see no error on the part of the Judge.
Outcome
[55]The appeal is dismissed.
[56] Mrs Evans is entitled to costs on the appeal. She must file her memorandum no later than 19 April 2024. Mr Evans is to file his memorandum (if any) no later than 10 May 2024.
Brewer J
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