Evans v Roberts
[2020] NZHC 206
•19 February 2020
NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION,
PLEASE SEE judgments/
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CIV-2019-419-0083
[2020] NZHC 206
UNDER the Care of Children Act 2004 IN THE MATTER OF
an appeal against a decision of the Family Court at Hamilton
BETWEEN
MS EVANS
Appellant
AND
MR ROBERTS
Respondent
Hearing: 26 July 2019
Further submissions received 11, 17 and 18 February 2020
Appearances:
J I Walker for Appellant S A Lister for Respondent
Judgment:
19 February 2020
JUDGMENT OF PETERS J
This judgment was delivered by Justice Peters on 19 February 2020 at 3 pm pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date: ...................................
Solicitors:J I Walker, Hamilton S A Lister, Hamilton
EVANS v ROBERTS [2020] NZHC 206 [19 February 2020]
Introduction
[1] The appellant, Ms Evans, appeals against a judgment of Judge Collin, given on 15 March 2019 in the Family Court at Hamilton.1 The Judge declined Ms Evans’ application pursuant to s 46R Care of Children Act 2004 (“COCA”) to relocate her and the respondent, Mr Roberts’, three children to Florida, in the United States.
Approach on appeal
[2] Ms Evans’ appeal, for which she requires leave, is brought pursuant to s 143 COCA.2 There is no objection to leave, the issue of relocation is important and I grant leave accordingly.
[3] The appeal is a general appeal, and the appellate court must consider the merits of the case afresh.3 The weight I give to the Family Court’s reasoning is a matter for my assessment. Ms Evans is entitled to judgment in accordance with my opinion.4 At the same time, Ms Evans is required to identify the respects in which the judgment under appeal is said to be in error, and to convince me I should reach a different view.5
Background
[4] Ms Evans, who is from the United States, came to New Zealand on a holiday in 2009, aged 24. She met Mr Roberts in June 2010, when he was aged 57. Ms Evans and Mr Roberts married in September 2010 and lived in Ngaruawahia. Ms Evans and Mr Roberts separated in May 2016, in circumstances referred to below.
[5] A significant aspect of this case is the violence Mr Roberts inflicted on Ms Evans, as to which the Judge accepted Ms Evans’ evidence. The first incident of physical violence was in May 2011. Others followed up until May 2016, as did behaviour such as taking Ms Evans’ bank cards and driver’s licence, immobilising her car, taking the home modem and such like.
1 [Evans] v [Roberts] [2019] NZFC 2003.
2 Care of Children Act 2004, s 143(2).
3 Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [31].
4 At [32].
5 Taipeti v R [2018] NZCA 56, [2018] 3 NZLR 308 at [42]; and Green v Green [2016] NZCA 486, [2017] 2 NZLR 321 at [30].
[6] Each of Ms Evans and Mr Roberts’ children were born in New Zealand. The first child, Sally, was born in March 2012.
[7] Ms Evans and Sally returned to Florida for a short period in about December 2012. Ms Evans had lived in Florida from aged 10, and her mother, a school teacher, lives there, as does her sister. Ms Evans and the children have stayed with Ms Evans’ mother on each occasion they have returned to Florida.
[8]Roxanne was born in July 2013.
[9] Ms Evans, Sally and Roxanne returned to Florida in June 2014 for a period before returning to New Zealand.
[10]George was born in October 2014.
[11] At the end of May 2016, Ms Evans returned to Florida with the three children, ostensibly on holiday but intending to remain there. Ms Evans’ evidence was that she did so to extricate herself and the children from the violence Mr Roberts had inflicted or was inflicting on her.
[12] Mr Roberts commenced “Hague Convention” proceedings to have the children returned to New Zealand. He went to Florida in February 2017 and remained until the end of May 2017. For most of this period, Mr Roberts stayed with Ms Evans and the children, at Ms Evans’ mother’s home. As I understand the evidence, Ms Evans had intended to contest Mr Roberts’ proceedings on the ground that he had been violent towards her, but was advised such a defence was pointless as she had permitted Mr Roberts to stay in her mother’s house.
[13] Ms Evans and the children returned to New Zealand in August 2017, staying initially with a friend some distance from Ngaruawahia. When that arrangement ended, Ms Evans returned to Mr Roberts’ house in Ngaruawahia, and he moved nearby. As far as Ms Evans was concerned, and Mr Roberts did not dispute this, the marriage had ended in May 2016, when she returned to Florida. Ms Evans’ evidence was that she was not concerned about living in Ngaruawahia at that time, as numerous
others were in close proximity. When those others began to leave, Ms Evans relocated to Tairua with the children in February 2018.
Court proceedings
[14] Ms Evans made the present application shortly after her return from Florida. Ms Evans wished to return to Florida because, as I have said, her mother and sister are there, as are her friends, and Ms Evans would have support in the children’s upbringing and if she wished to train as a teacher, as she may do. If permitted to relocate the children, Ms Evans envisages living with her mother in the first instance, and find work. Ms Evans’ father is in Colorado but that, plainly, is closer to Florida than New Zealand.
[15] The Court appointed Ms Bogers as lawyer for the children and ordered a psychological report.6 This report, of 1 June 2018, was prepared by Ms Kathy Orr, a clinical psychologist, following a meeting with each of Ms Evans and Mr Roberts and what appears to have been a brief telephone discussion with Ms Bogers.
[16] This brings me to two particular points of concern. First, in response to an enquiry by me, counsel confirmed that that the views of the children were not sought or obtained. It is mandatory under s 6 COCA to give a child a reasonable opportunity to express a view on a matter which affects him or her.
[17] Secondly, neither Ms Bogers nor Ms Orr met the children or observed them with either parent, or with anyone else for that matter. Quite why this should have occurred, and why the omission was allowed to persist, is unclear. The Court had directed Ms Orr to report on, amongst other things, each child’s relationship with or attachment to each parent and any other significant person in their lives.
Statutory provisions
[18] The principal statutory provisions governing determination of Ms Evans’ application are ss 4 to 6 inclusive of COCA, which are as follows:
6 Care of Children Act 2004, s 133.
4Child’s welfare and best interests to be paramount
(1)The welfare and best interests of a child in his or her particular circumstances must be the first and paramount consideration—
(a)in the administration and application of this Act, for example, in proceedings under this Act; and
(b)in any other proceedings involving the guardianship of, or the role of providing day-to-day care for, or contact with, a child.
(2)Any person considering the welfare and best interests of a child in his or her particular circumstances—
(a)must take into account—
(i)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; and
(ii)the principles in section 5; and
(b)may take into account the conduct of the person who is seeking to have a role in the upbringing of the child to the extent that that conduct is relevant to the child’s welfare and best interests.
(3)It must not be presumed that the welfare and best interests of a child (of any age) require the child to be placed in the day-to-day care of a particular person because of that person’s gender.
[…]
5Principles 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 … :
(c)a child’s care, development, and upbringing should be facilitated by ongoing consultation and co-operation between his or her parents… :
(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.
6Child’s views
(1)This subsection applies to proceedings involving—
(a)the guardianship of, or the role of providing day-to-day care for, or contact with, a child; or
(b)the administration of property belonging to, or held in trust for, a child; or
(c)the application of the income of property of that kind.
(2)In proceedings to which subsection (1) applies,—
(a)a child must be given reasonable opportunities to express views on matters affecting the child; and
(b)any views the child expresses (either directly or through a representative) must be taken into account.
[19] As appears from s 4, the welfare and best interests of a child in his or her circumstances is the first and paramount consideration. In considering that matter the Court must take into account the principles of s 5 COCA. As the Judge said, the decision required is highly fact specific, calling for consideration of “these children in his or her circumstances”.7
[20] The gist of Ms Evans’ appeal concerns the weight the Judge gave to principles 5(a), (e) and (f), either too much or too little on Ms Evans’ case.
Decision under appeal
[21] At the time the matter came before the Judge, Ms Evans was aged 34, Mr Roberts aged 67, and the children aged five, six and seven or thereabouts. The children were attending a local school or kindergarten, and were well settled and participating in various activities and/or sports. Ms Evans was working and her evidence was that Mr Roberts had not been physically violent towards her since her return to New Zealand in August 2017. Ms Evans also said Mr Roberts had not been, and she did not expect he would be, physically violent towards the children.
7 [Evans] v [Roberts], above n 1, at [3].
[22] Mr Roberts was retired, living in Ngaruawahia and “actively involved with his hapū” and working hard, not only on behalf of the hapū and others on issues of particular interest to the Māori community but also assisting friends. Mr Roberts was having contact with the children, he and Ms Evans managing this without a formal, fixed arrangement. Mr Roberts has other children including Kate, married, in her 40s, with two children, and living nearby; a son, married, also in his 40s, also with two children, and living in Tauranga; and another daughter, who is in her teens and lives with her mother nearby.
[23] Ms Orr, Ms Evans and Mr Roberts each gave evidence and were cross examined by counsel.
[24] The Judge’s discussion of the various s 5 principles may be summarised as follows.
Section 5(a)
[25] Mr Roberts’ violence towards Ms Evans was a matter of great concern. Ms Evans did not believe that Mr Roberts would be violent to the children. Mr Roberts lacked insight into the effect of violence on young children. The Judge was reluctant to make an order that Mr Roberts should have unsupervised contact with the children.
Section 5(b)
[26] Ms Evans is the children’s primary attachment figure and there are no significant concerns as to her care of them. Mr Roberts is less involved, “appears happy for that to be the case” and relies on Ms Evans to provide day-to-day care. Mr Roberts wishes to continue with contact on an informal basis and without a set regime, given his other commitments.
Section 5(c)
[27] Ms Orr’s evidence was that, subject to the relocation issue, Ms Evans and Mr Roberts co-operated in the children’s care. Despite this, the Judge was concerned that Ms Evans co-operated as a consequence of the “dominant role” Mr Roberts played as a result of past events, Ms Evans’ isolation, her recognition of the importance of the
children having contact with Mr Roberts, and Ms Evans’ willingness to “just get on” with life.
Section 5(d)
[28] The present arrangements of the children living with Ms Evans and having contact with Mr Roberts would continue whilst all remained in New Zealand.
Section 5(e)
[29] The children’s relationship with Mr Roberts and his family, and particularly Kate and her children — recognised by both Ms Evans and Mr Roberts as important to the children — would continue if they remained in New Zealand, but would wane and be likely to cease, particularly as regards George, if the children were to relocate. Whilst there would be opportunities for visiting, Ms Evans was unlikely to be able to contribute financially to visits, and Mr Roberts does not like the United States and was not sure he would visit Florida, even if the children were living there. “Virtual” contact is no substitute for physical presence for any extended period of time.
[30] On the other hand, the children would be likely to develop a greater, and possibly increasingly important, relationship with Ms Evans’ mother and her sister if they relocated to Florida.
Section 5(f)
[31] Mr Roberts has had extensive involvement in Treaty of Waitangi settlement claims and in making representations to reduce Māori inequality. Tikanga underpins Mr Roberts’ personal and professional life. Mr Roberts is the most likely source of providing the children with an understanding of tikanga. If the children relocate they will not be taught tikanga nor be exposed to Te Reo.
[32] To date, Mr Roberts had taken few steps to encourage the children in their Māori heritage. They had visited marae but nothing more than that. Mr Roberts’ commitment to his hapū and iwi has not been reflected in his commitment to his children. An important opportunity to immerse the children in tikanga had been lost when Mr Roberts’ mother died in 2018. Neither Mr Roberts nor his family contacted
Ms Evans or attempted to make arrangements for Ms Evans and the children to attend the tangi. Although the children’s identity as Māori needs to be preserved and strengthened, Mr Roberts and his wider whānau’s failure to engage the children diminished the importance of the principle.
Other matters
[33] Ms Evans is not in New Zealand by choice and would prefer to return to Florida because it offers family support, more opportunity for Ms Evans’ further education, better job prospects and the possibility she may be happier and more settled. However, there was a lack of evidence that relocation would significantly improve Ms Evans’ happiness or the wellbeing of the children. Ms Evans is not “desperate” to return, and was not sure when, if at all, such would occur. The Judge attributed Ms Evans’ ambivalence to her job, new relationship and better living circumstances.8
[34] Mr Roberts’ age may affect his ability to engage with the children and travel. Mr Roberts’ age also means there is a shortened opportunity to develop a relationship with the children or to re-establish one if lost.
Conclusion
[35] The case was finely balanced. The Judge said he had considered allowing the children’s relocation but postponing it for three years but, ultimately, had decided to dismiss the application because relocation would cause the loss of the important relationship between the children and Mr Roberts and his whānau, in particular with his other children. The opportunity for Mr Roberts and his whānau to introduce the children to their Māori heritage would also be lost.
[36] A further application for relocation might be warranted in two to three years if contact between Mr Roberts and the children were to break down; the Judge’s orders (referred to below) were not honoured; if Mr Roberts and his whānau failed to introduce the children to their Māori heritage; if there was further violence; or the children were exposed to any violence whilst in Mr Roberts’ care.
8 Before me, counsel for Ms Evans advised that Ms Evans wished to have the “option” to return but was not definite that she would if the appeal were allowed. I say more about this below.
[37] The Judge ordered the children were to be in Ms Evans’ day to day care; Mr Roberts was to have contact every third weekend and for greater periods during holidays; Ms Evans was to be allowed to travel overseas with the children for at least four weeks per annum; and the children were not to be physically punished nor otherwise exposed to violence.
Grounds of appeal
[38]Ms Evans’ grounds of appeal are:
(a)The ... Judge erred in fact and law by giving excessive weight to sections 5(e) and (f) [COCA] in finding that the children needed to maintain cultural identity and a continued relationship with Tikanga Māori when it appeared from the evidence that there was very little or no involvement with the children in Tikanga Māori.
2. The ... Judge’s decision to dismiss the [application] erred in law by minimising the domestic violence while simultaneously placing significant weight on sections 5(e) and (f), resulting in an assessment of the children’s welfare that is disproportionately inconsistent with all other applicable legal principles.
[39] In making her submissions, Ms Walker, counsel for Ms Evans, also contended the Judge had placed too much weight on the relationship between the children and Mr Roberts, Kate and Mr Roberts’ other children. Ms Walker submitted that, although the Judge had described these relationships as “important”, there was no evidence the relationships were important as a matter of fact.
Discussion
[40]I shall address the second ground of appeal first.
[41] Ms Walker submitted the Judge ought to have given greater weight to the history of serious domestic violence on Mr Roberts’ part. The essence of the submission for Ms Lister, counsel for Mr Roberts, was that there was no concern of physical violence against the children themselves, and no reported concerns arising from Mr Roberts’ unsupervised contact with the children.
[42] Section 5(a), which is mandatory, requires that a child be protected from all forms of violence from all persons. Any evidence of ongoing violence on Mr Roberts’
part, even if not directly against the children, would have been a compelling, if not determinative, factor in favour of the application.
[43] However, there was no such evidence. As Ms Lister submitted, Ms Evans’ evidence was that Mr Roberts had not been violent towards her since her return from Florida in August 2017, and that she did not consider Mr Roberts likely to be violent to the children. And Ms Evans did not seek relocation because she and/or the children were at risk, but for other reasons. Accordingly, I do not consider the Judge made any error in his consideration of the issue given the evidence before him.
[44] The first ground of appeal raises the issue of whether the Judge had attached too much weight to the children’s relationship with Mr Roberts and his whānau, and to the maintenance of their Māori heritage, given the evidence before him. Ms Walker submitted there was no evidence that the relationship with Mr Roberts or his whānau was important to the children, or that Mr Roberts and his whānau would in fact foster the children’s Māori heritage, important and desirable though that might be. Ms Walker submitted that the evidence before the Court did not warrant any expectation that they would do so in fact.
[45] Ms Lister submitted to me that it is essential the children continue to be exposed to their Māori whakapapa and tikanga Māori, and that it is necessary for them to remain in New Zealand for that opportunity to persist. Ms Lister also submitted Mr Roberts exposes the children to tikanga Māori “by his very actions and way of life when they are in his care”.
[46] I accept Ms Walker’s submission that such evidence as there was regarding the children’s relationship with their parents was inadequate. I also accept Ms Walker’s submission that, on the evidence to date, there is no cause for optimism that Mr Roberts or his whānau will instil tikanga Māori principles in the children.
[47]There is also the failure to comply with s 6 referred to in [16] above.
[48] I have considered whether I should dismiss this appeal given that, subject to these omissions, the Judge’s decision is considered and well-reasoned. Moreover, the
Judge clearly had in mind Ms Evans might make a further application in two or three years. Ultimately, however, I have decided to remit the matter back to the Judge, for reconsideration in light of the expert psychologist evidence that was ordered at the outset of the proceedings in the Family Court and which should now be provided; any views the children express; and having regard to such other evidence or matters as the Judge sees fit. This is not to pre-judge the outcome in any way, which is entirely a matter for the Judge. His decision may well remain the same. However, it is in the best interests of the children to address the issues now, rather than wait another two or three years.
[49] This direction, however, is subject to the following proviso. Ms Walker advised me that Ms Evans had not definitely decided to return to Florida even if I allowed the appeal, but rather that Ms Evans wished to have the “option” of doing so. This is consistent with the Judge saying Ms Evans had not definitely resolved to return, even if she were successful. I do not wish to take up the Family Court’s or anyone else’s resources if Ms Evans is not fully resolved, which she may not be. For that reason, by no later than 20 March 2020, Ms Evans is to advise the Family Court whether or not she intends to relocate the children if permitted to do so. No further steps are to be taken on the application if Ms Evans does not so intend. In that event, she will, of course, be entitled to make another application if and when she sees fit (subject to s 139A COCA).
Costs
[50] It appears from the Judge’s decision that both parties are legally aided. Given that, I make no order for costs although the parties may make submissions if they wish.
Peters J
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