Gull v Smart
[2016] NZHC 2566
•27 October 2016
NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO
11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE
THE-FAMILY-COURT/LEGISLATION/RESTRICTION-ON-PUBLISHING- JUDGMENTS.
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CIV-2016-409-000471 [2016] NZHC 2566
BETWEEN MS GULL
Appellant
AND
MR SMART Respondent
Hearing: 12 October 2016 Appearances:
J H Wren for Appellant
P A Cowey and A J Summerlee for Respondent
J E Graham - Lawyer for ChildJudgment:
27 October 2016
JUDGMENT OF GENDALL J
Introduction
[1] The appellant, Ms Gull (the mother), and the respondent, Mr Smart (the father), are the parents of Thomas Smart (Tom) who is now aged almost five. The mother applied to the Family Court under the Care of Children Act 2004 (the Act) for permission to relocate the child Tom to Brisbane Australia to live with her and for a parenting order granting her day to day care of Tom. The application was declined in the Family Court by Judge Walsh on 6 May 2016.
[2] Judge Walsh’s decision and orders made on 6 May 2016 include the following:
GULL v SMART [2016] NZHC 2566 [27 October 2016]
(a) The mother’s application for permission to relocate Tom to live with her in Brisbane was refused as I have noted.
(b) Tom’s residence is to be Christchurch, New Zealand.
(c) Judge Walsh made a Parenting Order which included provisions for shared care, overseas travel and guardianship relating to Tom.
(d)Judge Walsh also directed that the parents and, at an appropriate time, the paternal grandmother, were to be referred to specialist counselling pursuant to s 46G of the Act, with a minimum of 10 counselling sessions recommended.
(e) The objective of the counselling was to assist the parties in making the parenting orders work and to assist in building relationships as separated parents.
[3] The mother now appeals the Family Court decision to this Court but, in particular, the refusal of her application to relocate Tom to Brisbane. Indeed, before me Mr Wren, counsel for the mother, acknowledged that if the present relocation appeal failed then the mother had no objection to the current parenting order remaining in place, and her appeal regarding that aspect was accordingly abandoned.
[4] At the outset, it needs to be noted that the mother required leave to bring this appeal. There was no opposition from the father to granting of this leave and accordingly I granted leave to the bringing of the appeal. I now turn to outline briefly some of the background to this matter.
Background
[5] The father who was born in New Zealand, and the mother who was born in Australia, met while they were both on holiday in […] in October 2010. When they left […] they started living together in London. After about five months, the mother became pregnant and in June 2011 they moved to New Zealand. After only a month in New Zealand they decided to move to Canberra, Australia, to live with the
mother’s father. Then, on 11 November 2011 Tom was born. It seems the father’s Christchurch-based mother had travelled to Canberra at the time, she was present at Tom’s birth and she stayed for the next three months to provide support.
[6] The couple who had remained in Canberra living with the mother’s father for all this time, in July 2012, moved into their own accommodation in Canberra. Later, in September 2012 the father moved to Brisbane simply to find employment. During this period the mother and Tom travelled to Brisbane to visit the father every few weeks or the father travelled to see them in Canberra.
[7] In March 2013, when the mother and Tom were scheduled to relocate to be with the father full time in Brisbane, the father’s employment ended and he had to move to Northern Queensland for work. There he worked in the mines on the basis of six weeks on and one week off.
[8] During the 2013/14 end of year holiday period the parents and Tom went on a camping trip with the father’s family to Nelson, New Zealand. For some months thereafter the father was unemployed and the mother studied full time with Tom being in child care for two days a week. In February 2014 the mother and the father agreed that the mother would start “exotic dancing” to supplement their income as they were living off savings.
[9] The mother worked for about eight months as an “exotic dancer” in various clubs in Australia until the father obtained new employment. In June/July 2014 the mother also completed a study in Business and Human Resources certificate.
[10] In July 2014, the father was offered employment in Christchurch, New Zealand. According to the mother, by that time their relationship had deteriorated to the point where they were considering separation. The relationship, it seems, had been volatile for some time.
[11] The mother says now she was reluctant to move to New Zealand but eventually agreed to relocate on a trial basis. Upon relocation to Christchurch, the family lived with the father’s parents.
[12] The mother travelled back to Australia for short periods every four to six weeks with the financial support of her family and friends in Australia. Initially, the father would not permit the mother to take Tom to Australia. However, after the mother’s first trip back to Australia on her own, the father agreed that Tom could travel with her. Tom visited the mother’s family in Australia approximately eight or nine times within 12 months.
[13] Around August 2014, the couple finally separated. The mother moved to Brisbane and began to work again as an “exotic dancer”, visiting Christchurch intermittently over the next 10 months staying at the father’s parents’ home. However, she did move back to Christchurch in June 2015, and commenced a shared care arrangement with the father. The parents agreed on the following day-to-day care arrangements for Tom, namely:
(a) Tom was to be in the mother’s primary day-to-day care; (b) Weekends would be shared on an alternating basis;
(c) The father would pick up Tom from pre-school each Wednesday and have him in his care from 5.30pm to 7.00pm and then Tom would be returned to the mother.
[14] Around 5 November 2015 the mother commenced the present proceeding the subject of this appeal in the Family Court seeking permission to relocate Tom to Australia together with a parenting order. Ms Graham was appointed by the Family Court as lawyer for Tom.
Family Court decision
[15] In his judgment in the Family Court refusing the mother’s relocation application, Judge Walsh set out his specific reasons for reaching this decision, which he said was one reached on the basis that he had considered Tom’s welfare and best interests in his particular circumstances as the first and paramount consideration and, in addition, he had taken into account the principles in ss 4 and 5
of the Act.1 In doing so, Judge Walsh then outlined those reasons in the following way:
(i) By Tom remaining in Christchurch, both parents would continue to share the responsibility of Tom’s care, development and upbringing outside of childcare/school hours. If Tom was permitted to relocate to Brisbane, Tom would not have the benefit of two competent and caring parents consistently in his life. In Brisbane, mother would be the sole parent available outside of the childcare/ school hours to care for Tom given mother’s intention to obtain fulltime paid employment in Brisbane.
(ii) I find that mother had only superficially analysed all of the cost/expenses of living as a solo parent in Brisbane and the costs/ expenses of funding Tom’s travel to and from Christchurch. In my view, mother’s evidence on both issues was perfunctory, sketchy and uncertain– in a relocation case such as this I would have expected mother to have provided more detailed evidence of her financial situation and projected expenses… My lingering concern is what Tom’s parents got into financial dire straits whilst together as a couple in Brisbane resulting in their joint decisions that mother would take up ‘exotic dancing to supplement the family finances. Now, mother proposes to be working solo parent in Brisbane. My worry is that, mother may be tempted to return to that line of work.
(iii) By Tom remaining in Christchurch, mother will have the benefit of father continuing to pay for Tom’s swimming lessons, childcare expenses and the additional $100 per week on top of father’s child support payment.
(iv) Whilst mother’s evidence is that she may find it difficult with working and child care responsibilities, mother conceded that she could complete the three months Human Resources Diploma on-line in New Zealand. Although mother’s employment ceases in June 2016, I find that now that she know the Court’s decision she will have the resilience and determination to find other employment in Christchurch.
(v) I find that the family support network is full-tested, stronger and more readily available in Christchurch compared to the situation in Brisbane. Mother’s aunt and uncle will have the responsibility of caring for an infant child and the evidence of mother’s sibling’s proposed relocation from Canberra to Brisbane was tentative.
(vi) Mother wishes to pursue a relationship with […] but, like father and […], their relationship is untested in the sense that she, […] and Tom have not lived under the same roof for
1 Gull v Smart [2016] NZFC 3683 at [158].
any extended period of time. My impression of […] evidence was that he was ambivalent about whether he and the mother would actually commence living together in Brisbane.
(vii) Mother could travel between Christchurch/ Brisbane/ Canberra for extended holidays with Tom and mother could use Facetime and the internet to continue and strengthen relationships between Tom and the maternal side of the family. On the evidence, mother and Tom are well- seasoned trans-Tasman travellers.
(viii) Although mother claims Brisbane is her “home”, the evidence shows that for the first eight months of Tom’s life he and his parents lived with the maternal grandfather in Canberra and then they lived elsewhere in Canberra for about ten months.
(ix) Mother went to Brisbane became father moved there for the purpose of employment. Mother, father and Tom only lived together in Brisbane for about 15 months.
(x) Mother said that she was resistant about attending the round table meeting chaired by lawyer for child as she believed that the primary focus was on relocation and I find that mother’s evidence that she believed that communication with father would improve if relocation was permitted, was naïve and misplaced, given the current almost non-existent communication.
(xi) A major plank of mother’s case to relocate was the extent of the support she would receive in Brisbane from the maternal side of the family. But the evidence is that, since she came to New Zealand in July 2015, her sister […] came to Christchurch once in November 2015 and for the current Court hearing and her two brother only came to Christchurch to give evidence in the Court hearing. The maternal grandfather has never been to New Zealand.
(xii) […], in her further written submissions of 4 May 2016 argued that there was no evidence of the paternal side of the Smart family supporting the mother in Christchurch. With respect I disagree… I have confidence in [the paternal family’s] willingness to rebuild a relationship with the mother.
(xiii) With respect to the issue of furthering Tom’s Croatian identity, the evidence is that mother speaks Croatian and can teach Tom the Croatian language and culture and furthermore, the mother can explore opportunities with the Christchurch Croatian community.
(xiv) Understandably mother is unhappy” (sic) about her situation
in Christchurch without any immediate family support but
there was no medical and/ or psychological evidence for the
Court that she was suffering from depression.
Appellant’s submissions
[16] The appellant appeals on three general grounds, namely:
(a) The Judge erred by making factual findings not supported by the evidence; and
(b)That the Judge also made findings or predictive assessments not supported by the evidence; and that
(c) The Judge erred in his application of the law
Care of Children Act 2004
[17] The key provisions of the Act on this appeal are ss 4 and 5:
4 Child’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.
(4) This section does not—
(a) limit section 6 or 83, or subpart 4 of Part 2; or
(b) prevent any person from taking into account other matters relevant to the child’s welfare and best interests.
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 section 3(2) to (5) of the Domestic Violence Act 1995) 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.
[18] The overarching principles in s 5(b) and (c) provide that the parents and guardians have the primary responsibility for their children’s care and development and that this should be facilitated by ongoing consultation and co-operation between them. As I have noted, it was the mother who had applied to the Family Court to
request the Court to decide the guardianship dispute which she said had developed between them over Tom. This application was one brought under s 46R of the Act.
[19] As to relocation cases like the present, in Kacem v Bashir2 the Supreme Court said that in such relocation cases the Court is not exercising a discretion but rather it is making an assessment and decision based on an evaluation of the evidence. The task of the Judge 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 would best reflect the welfare and best interests of the child/children.
[20] The central issue before the Supreme Court in Kacem v Bashir was whether any of the principles in s 5 are required to be given “any presumptive precedence” over any other principles. The Court held that there is no such presumption, or weighting, in respect of any of the principles. However, the Supreme Court’s decision is now subject to the recent Care of Children Amendment Act (No. 2) 2013, which amended s 5 such that a child’s safety must be protected from all forms of violence.
[21] Some further general observations were also made by the Supreme Court which are of relevance to this case. The first is that in relocation cases, as with all cases under the Act which engage ss 4 and 5, the enquiry must focus on the particular child or children, and his, her or their particular circumstances. The case specific nature of the enquiry is made clear in s 4 of the Act.
[22] Furthermore, the Supreme Court also confirmed that appeals of relocation orders are not an exercise of discretion and must proceed by way of rehearing. The Court held:3
… As we have seen, the court is not in fact exercising 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 assessment which the court 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 judgement as to what course of action will best reflect the welfare and best interests of the children. While the 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.
[23] Thus, being a general appeal, the appellate Court is required generally to consider the merits of the case afresh, in accordance with the Supreme Court’s decision in Austin, Nichols & Co Inc v Stichting Lodestar.4 In a decision delivered earlier this year, Nation J in Red v Red summarises the appellate Court’s role as follows:5
(a) The appellant bears an onus of satisfying the appeal Court that it should differ from the decision under appeal;
(b)It is only if the appellate Court considers that the appealed decision is wrong that it is justified in interfering with it;
(c) The extent of the consideration an appeal Court, exercising a general power of appeal, gives to the decision appealed from is a matter for its judgment; and
(d)On a general appeal, the appeal Court has the responsibility of arriving at its own assessment of the merits of the case.
First ground of appeal
[24] The first ground of appeal relates to the appellant’s challenge to various factual findings made by the Judge.
Past primary shared care
[25] The mother challenged the Family Court’s finding that both parents have been primarily responsible for the child’s care since birth. Mr Wren, counsel for the mother, submits that the father was not primarily responsible for the care of Tom.
Curiously, the mother takes issue with the father receiving assistance in his caring for
Tom from the paternal family.
[26] However, in my view, the evidence clearly establishes that the father has generally been present and been in either shared or primary care of Tom since birth. Judge Walsh outlined the periods in which each parent was responsible for the primary care of the child:
(a) 0 yrs-2.5 yrs (2011-2014) shared primary care (b) 2.5 yrs-3.5 yrs (2014-2015) father primary care (c) 3.5 yrs-4.5 yrs (2015- present) shared care
[27] And further, s 5(e) of the Act addressing principles relating to a child’s welfare and best interests, expressly recognises the importance of strengthening the relationship between the child and his family group, whanau, hapu and iwi. The Act clearly recognises the importance of relationships with the wider family group in the welfare of a child. Therefore, it could not seriously be suggested that assistance from the wider whanau is capable of negating a finding that the father was the primary carer for his child. Even the mother, when asked whether it was reasonable for any parent to raise a child without some family support replied “oh you absolutely need family support”.
Ongoing consultation and cooperation between Tom’s parents
[28] The mother also objects to Judge Walsh’s finding that the inability for the parents to communicate with each other was a factor warranting the requirement for the child to stay in New Zealand. In fact, Judge Walsh held:
[163] In any event, I find that one important and underrated advantage for Tom remaining in Christchurch is the opportunity for Tom’s parents and guardians to both attend and engage in much needed Court-directed counselling to address a number of unresolved issues including strategies for communication as separated parents and guardians. If Tom and his mother relocate to Brisbane after mother’s employment ceases in June 2016, there will be insufficient time for Tom’s parents to attend and benefit from counselling – in my opinion, both parents need independent therapeutic
assistance to address their long festering rankle which has undoubtedly, deepened with the adversarial manner in which this case was pleaded.
[29] On this, Mr Wren before me suggested that the Family Court never turned its mind to any other options. For example, he said counselling could have been completed before or after relocations. However, in my opinion, with his comments at [163] noted above, Judge Walsh was not treating counselling as a determinative factor in declining the mother’s application to relocate. Judge Walsh was simply noting the benefits of counselling for both parents in caring for Tom’s upbringing, and the logistical difficulties of continuing this at distance.
The mother’s proposed relocation plan
[30] Furthermore, the mother submits that the Judge was wrong in holding that she did not have a sufficient plan in place for her and Tom to relocate to Australia. Judge Walsh held “that the mother has only superficially analysed all of the costs and expenses of living as a solo parent in Brisbane.” The mother argues that “clear and unchallenged” evidence had established a sufficient plan in place for the mother relocation plan.
[31] However, reading the transcript to which I was referred by the mother, I find it difficult to accept that the Judge erred in his observation. The details of the relocation plan provided by the mother contain significant uncertainties, risk, and contingencies. For example, when the mother was questioned about what she will be earning after tax, her answer was:
A: Prob- I would probably get about 13, or 1300 I think a week. So I don’t, oh, maybe 1200, something like that. I don’t know sorry. I don’t know what it would be like.
Q: That seems an impressive tax rate
A: What it would be like after tax, what I would get after tax. I would get about 1200, year, about that, 1100. I would, I don’t know, I would have to check but it would be something around there.
[32] When asked how much rent she would be paying, her reply was:
A: I haven’t read the letter for a while so I can’t exactly quote it but I think it was $380 a week, off the top of my head but on the market I think he said he would get like $500 or so
[33] And, questioned on the cost of full time child care in Brisbane when she was at work, the mother replied:
A: You get a government rebate with childcare over there so con – because I’m a single mum, childcare would only be $20 a week for me. Otherwise if you are partnered, when […] and I were living in Brisbane it was $40 a day but usually I think it was $80 a day.
Q: So even if you’re working full-time your evidence is that you only pay $20 a week
A: Yes. I think. Don’t, I don’t want you to quote me on it but I’m pretty sure that’s how it works from the top of my head when we were doing the whole children thing and trying to get the government rebates and stuff, I think that’s how they explained it but I would need to double-check with them if that’s correct because I would have full-time employment so.
[34] The mother also admitted that she had not done any budgeting for how she would live in Brisbane. Her cross-examination in my judgment clearly demonstrated that the mother had given little detailed thought to the logistics of life as a solo mother in Brisbane.
[35] Generally, the mother’s proposed relocation plan required the support of her family given her full time employment, the amount of time she would spend travelling and the time spent on the on-site study she intended pursuing. Little definitive evidence was before the Court, however, to show that this support would be forthcoming in any significant way. The mother gave evidence that her father lives in Canberra and works seven days a week and her mother, who also lives in Canberra, has no connection with the family at this stage. Both the mother’s brothers, she conceded, also still live in Canberra and are working. Her sister, […], she said might possibly move to Brisbane to live but she eventually wished to join the police force and would probably work full time and study in the evenings, thus not being in a position to provide significant help to the mother.
[36] The mother in her evidence also conceded that she did not really know what her net income in Brisbane might be, that she would have to pay for her study units, that she would have a large petrol bill and she would have to pay for the airfares for herself and Tom’s travel to and from New Zealand. In addition, the mother noted
that she was going to try to save for a home but that overall she had not prepared any budget.
Involvement in previous employment
[37] The mother submits that the concern expressed by the Family Court about her returning to “exotic dancing” was “completely unfounded”. She argues that there was no evidence to suggest that there was a real or unacceptable possibility that this could happen. It is alleged that the mother’s involvement in the “exotic dancing” industry clouded Judge Walsh’s attitude to the possibility of relocation.
[38] However, during cross examination, the mother conceded that “erotic dancing” was not something you would “wish to flash to the world” and that some of the premises at which she danced were “a bit on the seedy wide”. She also agreed that it was “not a nice industry to work in” and in her words you become “degraded and disrespected”. The mother also admitted returning to “exotic dancing” at various times purely to support herself or help out her friends. In light of all this evidence from the mother, it was open as I see it for the Judge to find that there is a real risk of the mother returning to her “exotic dancing” employment if she relocates to Brisbane which, overall, may not be desirable for her life-style as a solo parent of Tom.
Second ground of appeal
[39] With regard to the second ground of appeal, the mother takes issue with what she says are Judge Walsh’s “predictive” findings. She submits that these findings were not based on evidence before the hearing and that such findings can only be made through adducing independent psychological reports. Further, the mother contends that these findings do not reconcile with other aspects of the Court’s determination.
Mother’s degree of resilience and fortitude
[40] The first “predictive” finding that the mother disputes is Judge Walsh’s
comment on her fortitude and resilience. At [164] the Judge held:
Father and his family must appreciate that mother will be devastated with the Court’s decision. It will take time for mother to come to terms with all of its effect and implications. But I predict that mother has the resilience and fortitude to make her ‘life’ in New Zealand work. She is young and healthy. She has the ability to now concentrate on completing her Human Resource Diploma. I implore mother to take advantage of a shared care regime with respect to Tom’s future care to find gainful employment in Christchurch. Tom is a fortunate child in that he has two ‘good’ parents and two ‘good’ and caring extended families in New Zealand and Australia.
[41] It is unclear how the mother’s challenge to this particular finding of fact will in any way assist the final outcome of her application for a relocation order. I would have thought the comments made by Judge Walsh were positive and encouraging. I cannot see how arguing that the mother is not resilient will assist in providing for the best interests and welfare for Tom.
[42] In any case, it was proper for Judge Walsh to draw the “predictions” that he did with regard to the mother’s resilience and fortitude. His Honour was in a proper position to make such findings, as I see it, in light of her own account of “doing what is best for Tom”. Previously, she was able to find employment in Canberra, London, Brisbane and Christchurch. Her past dedication to provide for Tom is a good indication that she is capable of adapting to new environments in order to care for her child. Indeed, I agree with Judge Walsh’s observation that Tom is fortunate to have a caring and supportive family and extended family.
The attitude of the mother towards the father as a factor in denying the relocation
[43] The mother argues that there was no evidential foundation to support the “prediction” that she has real potential to become unaccommodating and recalcitrant if relocation is approved and she is based in Brisbane as Tom’s primary caregiver. The Judge expressed the view that he was “left with a measure of unease about the mother’s future attitude towards the father if relocation occurred”. Counsel for the mother suggested that these findings were made because the mother refused to agree for Tom to have an additional night of contact with the father, and the mother refused to attend a “round table discussion” as to Tom’s care arrangement. I do not accept on all the evidence before Judge Walsh, and in light of all the comments in his judgment, that this was the case however.
[44] The mother does go on to say however that she is supportive of the father’s role in the care and upbringing of Tom and that Judge Walsh’s “measure of unease” is unfounded. Before me, Mr Wren referred to what he said were several examples supporting the mother’s “encouraging attitude”. By way of example, Mr Wren referred to evidence adduced during the mother’s cross examination:
Q: And tell me what are […]’s attribute as a father? A: He’s a really good dad.
A: He loves Tom a lot and he, Tom loves […] as well. He’s a good dad.
Even though I don’t necessarily like […] because of the way he treats me, the way he speaks to me, the way he speaks to me in front of Tom and the way he treats me and show me no respect, he still Tom’s dad and at the end of the day the only person that’s going to suffer if I don’t allow that relationship is Tom and that’s the last thing that I want. I don’t want Tom and […] to not have a relationship because I think it’s really important that they do have a relationship but I also believe that it’s really important for me to have a good relationship with Tom and be shown respect and not to be spoken to like that in front of Tom because he picks up on those traits.
[45] I do agree with Mr Wren that Judge Walsh did place some weight on the mother’s refusal to attend a round table discussion as supporting a future prediction of her becoming unaccommodating and recalcitrant.
[46] However, by the mother’s own account, there are unresolved issues between the parties that are becoming a possible impediment to their previous cooperative efforts in caring for Tom. As the Judge suggests, counselling may well help in resolving these issues, failing which there may be a real risk that either or both parties become unaccommodating and recalcitrant in their care arrangements for Tom.
The alleged support network of the paternal family available to the mother
[47] The mother further takes issue with the Judge’s apparent prediction that the paternal family, in particular Mrs Smart, is willing and able to “build bridges” with the mother. The mother maintains that this finding on the ability to “build bridges” is contradictory to other findings made by the Court. I take issue with this however.
[48] In my view, it is simply wrong to say that the judge erred in finding there was a willingness from the father’s family to rebuild a relationship. Extensive evidence was given by the father’s family about their willingness to restore relationships with the mother. As one example, even after the mother brought the present application to relocate, she was still invited to a Christmas party held by the father’s sister.
[49] The finding that Mrs Smart could rebuild a relationship with the appellant is not contradictory to the adverse comments Mrs Smart made against the mother. As the respondent submits, these comments were made uniquely to specific events, such as Mrs Smart’s criticism of the appellant’s sibling brining home girls for sex and her description of the appellant’s family as ‘dysfunctional’. Such comments do not contradict Mrs Smart’s willingness to amend relationships with the appellant after the proceeding. Indeed, as Judge Walsh notes, much of the animosity between the parties are inevitably caused by the present proceeding, and the criticism made by both parties are a cathartic exercise of providing psychological relief for the parties’ separation.
[50] On an end note, I make the observation that many of the appellant’s challenges to Judge Walsh’s predictions and factual findings do not assist the Court’s ultimate determination of the best interest and welfare of Tom. Even if there are merits to the appellant’s challenge, which I have found there to be limited, this does not assist the appellant’s case that relocation should be granted for the best interest and welfare of the child.
Third ground of appeal
[51] The mother submits that Judge Walsh made errors in his application of the law here. First, she says he erred by incorrectly applying a presumptive approach not favoured in Kacem v Bashir secondly, by not correctly assessing the factors as outlined in S v O,6 and thirdly, by not giving sufficient weight to, or placing
insufficient weight on, the principle in s 5 (f) of the Act.
6 S v O [2006] NZFLR 1, (2005) 25 FRNZ 259 (HC).
The alleged presumptive approach by Judge Walsh
[52] In emphasising as he did the importance and relevance of s 5(a), (b), (c) and (e) of the Act, Judge Walsh held “the importance of maintaining and fostering a relationship between Tom and both parents is central to the determination of the case”. Mr Wren argues that this statement demonstrated a presumptive approach in the Judge’s decision. In prioritising these matters, he argues that the Judge was wrong in principle.
[53] Mr Wren for the mother refers to the approach taken by the Supreme Court in Kacem v Bashir where, in considering the best interests and welfare of the child, Tipping J held:7
[18] The relocation issue raised in this case clearly comes within the reach of s 4(1). Hence the court must regard the welfare and best interests of the two children involved as the first and paramount consideration. By its references to “particular child” and “particular circumstances”, s 4(2) underlines the case-specific nature of the inquiry. That inquiry must focus on the particular circumstances of the individual case with no presumption of what the welfare and best interest of the child may require or what influence the s 5 principles may have on that question section 4(5) makes it mandatory for the court to take into account, in a case-specific way, those of the principles specified in s 5 that are relevant…
[19] It can therefore be seen quite clearly that the ultimate objective is to determine what outcome will best serve the welfare and best interests of the particular child or children in his, her or their particular circumstances. In making the determination the s 5 principles must each be examined to see if they are relevant, and if they are, must be taken into account along with any other relevant matters. It is self-evident that individual principles may have a greater or lesser significant in the decision-making process, depending on the circumstances of the individual cases.
[54] The result therefore seems to be that no s 5 principle inherently holds greater weight than any other. As Tipping J observed, “there was no basis in the Act for any kind of presumptive approach to determine what outcome would best serve the interest and welfare of the child”.8
[55] As I see it, however, the comment made by Judge Walsh here did not give priority to any particular s 5 principles. As expressly required under s 4 of the Act,
7 Above n 2, at [18]- [19].
8 At [29].
the welfare and best interests of the child must be determined “in his or her particular circumstance”. In my view, Judge Walsh did tailor the relevance of the Act to Tom’s individual circumstance. I do not accept the mother’s submission that the judge took a myopic approach.
[56] I also do not accept the mother’s submission that Judge Walsh failed to properly consider s 5(f), which relates to the preservation and strengthening of the child’s identity, including his or her culture, language, religious denomination and practice. The Judge held that the mother can teach Tom about the Croatian language and the Croatian culture while living in Christchurch and can maintain contact with a vibrant local Croatian community there. The practical effect of preserving and strengthening Tom’s identity, in my view, is likely to be virtually the same whether the relocation order sought is granted or not. This is in part because of uncertainties over whether any of the mother’s family members would be moving to Brisbane with her. Even if a relocation order is granted, the exposure which Tom would have to Croatian culture in Brisbane could be not entirely dissimilar to that which he could currently experience in Christchurch.
The assessment factors in S v O
[57] The mother then went on to suggest that, while Judge Walsh listed the assessment factors set out in S v O, His Honour failed to apply the list to the particular circumstances here.9 That list of factors in S v O are:
a)the relocating parent’s capacity to value the input of the other parent, and to facilitate and encourage access by the other parent.
b) The non-moving parent’s capacity to demonstrate continued interest
in the children after relocation.
c)The extent and focus of conflict between the parents, either underlying or resulting from a decision to relocate.
d) The practical consequences of relocation.
e) The distance between the two parents’ homes.
f) The impact of granting or declining relocation on the child’s family
and social support networks.
9 Above n 6.
g) Cultural, social and spiritual considerations.
h)The child’s previous living arrangement (i.e. number of previous moves) and the suggested new living arrangements.
i) The merit and reasonableness of the parent’s wish to relocate.
j) The extent to which the child’s relationship with the non-moving parent will be affected.
k) The wishes and needs of the child or children
l) The impact of granting or declining relocation on the child.
[58] At the outset, I note that to some degree the S v O factors are at times repetitive in their application to the current circumstances.
(a) The mother’s capacity to facilitate contact with the other parent
[59] If a relocation order is granted, the mother says she will be willing to facilitate contact between Tom and the father. However, as Judge Walsh found, there are some real unresolved conflicts between the parties that ultimately could have the possibility of leading to unaccommodating and recalcitrant behaviour. And the not inconsiderable cost to this family of regular accompanied trans-Tasman travel to maintain the contact could well create some future impediment here.
(b) The father’s capacity to demonstrate continued interest in the child after
relocation
[60] In the course of evidence, the father argued that his relationship with Tom would be detrimentally diminished if he was relocated to Brisbane. Although the mother endeavoured to submit that there is no evidence to suggest that the father could not continue to have an interest in or contact with his son and his on-going development, as I see it, if a relocation order is granted, the father’s involvement in the upbringing of Tom would be greatly lessened. Currently, Tom sees both parents
11 out of 14 days a fortnight. If Tom moves to Australia, as the mother conceded during cross examination, the opportunity for the father to play a significant role in Tom’s life would be substantially reduced.
(c) The extent and focus of conflict between the parents
[61] The mother in her evidence suggested that presently there is extensive conflict between the parties. She says she is concerned about the manner in which the father deals with her.
[62] On this aspect, however, I make two general observations. First, in most civil proceedings before the courts, a degree of animosity is normally present between the parties involved. Unlike most general civil proceedings, however, parties involved in family proceedings, especially in proceedings involving care and contact related to children, are required afterwards to mend their differences to ensure the best interests and welfare of the child or children are met. In my view, Judge Walsh was correct in placing little weight on the conflict between the parties here brought on by the present litigation.
[63] Furthermore, in my opinion, we are not directly concerned in this case with mending the relationship of the parties. Rather, the task is to work out the best way forward in caring for the upbringing and development of their child Tom. The reality is that the parties have separated. No one is expecting them to reunite. What is relevant is their willingness to rebuild a supportive relationship for the benefit of Tom.
[64] Fortunately, in this case, it appears that both the mother and the father mutually respect and care for the other’s role in the upbringing of Tom. By way of example, the mother has deposed:
I have always been extremely supportive of maintaining contact with […] while Tom and I visit Australia. I am also very supportive of Tom’s time with […] while we are in New Zealand. I have agreed to […] having contact on my weekends with Tom so they can do special things together. There is no replacement for Tom’s relationship with his dad– it is very special.
[65] The father also accepts that the mother is a good mother and values her role in Tom’s life. In light of the mutual respect both parties have for each other in the upbringing of Tom, it was open for Judge Walsh to conclude that there is a real possibility for the parties to mend relationships enough for the benefit of Tom.
(d) The practical consequences of relocation
[66] As already noted at [31] and following above, there are serious concerns as to the practicality of the mother’s possible plan to relocate Tom to Australia. The Judge found that the mother had only superficially analysed all of the costs and expenses of living as a solo parent in Brisbane and the costs of funding Tom’s travel to and from Christchurch. I agree with Judge Walsh’s view that the mother’s relocation plan is vague and it can only be described as “perfunctory, sketchy and uncertain”.
(e) The distance between the two parents’ homes
[67] This factor speaks for itself. The parents currently live in Christchurch close enough to properly share Tom’s care and for him to have a regular relationship with his paternal aunt/s and cousins. The mother plans to move to Brisbane while the father plans to stay in Christchurch which would, of course, preclude shared care continuing. As I have mentioned, there are concerns too as to whether the mother can afford the cost of allowing Tom to visit his father if a relocation order is granted.
(f) The impact on the child’s family and social support network
[68] As the mother correctly observes, there is likely to be a possible impact on both the maternal and paternal family whatever the determined outcome is here. She takes issue with the Judge’s preference of giving greater weight to the paternal family linkage.
[69] However, it is not disputed that the paternal family has almost daily contact with Tom. The evidence showed they are actively and intimately involved in Tom’s daily life. If the relocation order is granted, Tom’s relationship with the father and the extended paternal family would be detrimentally affected while, in my view, there are no guarantees that his relationship with the maternal family would be enhanced to any major degree. Evidence was given that the maternal grandfather and one of the mother’s brothers would remain in Canberra. It is uncertain too whether the mother’s sister or her other brother will return to Brisbane. Evidence was also given that Toms’ contact with the maternal family has been often through visits to Australia and visual technology. This can continue to be done irrespective
of whether he stays in New Zealand or moves to Brisbane. Accordingly, I am satisfied the Judge here did not err by putting particular weight on the established and significant relationship that Tom has with his paternal family.
(g) Cultural, social and spiritual considerations
[70] Tom was born in Australia with New Zealand and Croatian heritage. The mother submits that the child’s link with his Croatian and Australian heritage would be impacted if the relocation order is not granted. The mother, as I have noted, is Croatian and she gave evidence that Tom is learning the language and about his heritage. Tom however was only two and a half when he came to New Zealand and this education and learning on Croatian matters has been able to take place while he has been living in Christchurch.
[71] And, as the father argues, a denial of a relocation order does not forbid Tom from trans-Tasman travel. Declining the relocation order also does not prevent Tom from attending family events where he would be in the company of family members speaking Croatian. The mother suggests too that there is a limited Croatian community in Christchurch. However when asked whether she had enquired or looked into this, she replied “No I haven’t”.
(h) The child’s previous living arrangements
[72] The mother refers to the fact that the parties and Tom had lived in Australia (Canberra and Brisbane) before. The shifts within Australia as with the move to Christchurch were related to the employment of the father. The mother submits that “there was no evidence to suggest however that a physical location to Brisbane for the child was something that would be demonstrably detrimental to his well-being”.
[73] To this point, as I see it, the mother may to an extent have lost sight of the principles and purposes of the Act. The paramount consideration here must be to provide for the best interests and welfare of the child Tom in his particular circumstance. The test therefore is not whether a living arrangement is “demonstrably detrimental” to Tom’s well being, but rather whether it is in the best interests and welfare of the child.
[74] As Judge Walsh noted, by Tom remaining in Christchurch, both parents would continue to share the responsibility for his care, development and upbringing outside of childcare/ school hours. Tom’s current living arrangement has been in place for some time, it is fully-tested, with strong and readily available family support in Christchurch. This must be contrasted with the uncertain and vague situation proposed for his life in Brisbane. And, as I see it, Tom will also have the benefit of continuity in his care, development and upbringing if he is to stay in Christchurch.
(i) The merits and reasonableness of the parent’s wish to relocate
[75] The mother asserts that presently she is unhappy in Christchurch, and relocation is reasonable on grounds of existing family links, social relationships and her possible employment opportunities in Australia. However, as I have already noted, there must be some serious concerns over the mother’s plan for relocating to Brisbane. Since the family moved to New Zealand in July 2015, it seems the mother’s wider family made few visits to the mother and Tom (other than attending the Family Court to give evidence). If the mother is to move to Brisbane, there must also be some doubt as to whether maternal family members will move to Brisbane to be near her and Tom. This is in contrast with the current arrangements where Tom has strong extended family support in Christchurch, from the paternal side of the family. Furthermore, as I have already noted, there must be concerns here as to the practicality of the mother’s plan to move to Brisbane and, given her circumstances, to care for Tom as a solo parent.
(j) The effect on the child’s relationship with the non-moving parent
[76] As I have already noted, the parents currently have a shared care arrangement (under which the time Tom spends with each parent is about equal). Granting a relocation order would significantly decrease contact between the father and Tom. Given the strong relationship Tom has with each of his parents, it was open to Judge Walsh, in my view, to find that it would be detrimental to Tom to lose the care of either parent.
(k) The wishes and needs of the child
[77] All parties have agreed that Tom, being aged not yet five, has not been asked nor has he expressed any preference as to relocation.
(l) The impact on the child
[78] The ultimate question for any application under the Act is whether relocation is in the best interests and welfare of the child. The mother submits that:
It was [the mother’s] position that the impact of allowing the relocation of reducing the time spent between the child and [the father] would be countenanced by regular frequent periods of contact that would be of a lengthy and quality nature. This impact would be further supported by her emotional well-being being enhanced and the support of family.
[79] I do not accept that reducing the time spent with Tom would improve the nature and quality of the relationship between the father and Tom. As s 5 of the Act states, a child’s care, development and upbringing should primarily be the responsibility of the parents. By limiting the father’s contact to school holiday visits and online video calls, the father would be deprived of the responsibility to be part of Tom’s developing and upbringing.
The weight given to the s 5(f) principle
[80] Section 5(f) of the Act includes as a principle to be taken into account relating to a child’s welfare and best interests the child’s identity including his culture, language and religious denomination and practice and the need for this to be preserved and strengthened.
[81] Effectively I have dealt with this aspect at para [56] above. Suffice to say also that, from her oral evidence it seems the most significant aspects of Tom’s Croatian heritage identified by the mother was the fact that she was teaching him to speak Croatian and understand his background. This, of course, can continue whilst he remains living in Christchurch. In addition, declining relocation does not prevent Tom and his mother attending Croatian family events in Australia, particularly in light of what has been acknowledged as the extensive trans-Tasman travel which has occurred in the past and the acceptance of this in the current parenting order.
Role of lawyer for the child on appeal
[82] As I have noted above, before me Ms Graham appeared as lawyer for the child, a role she undertook before the Family Court.
[83] Section 9(b) of the Family Courts Act 1980 confirms that a lawyer for the child can be appointed in the High Court to act for the child in those proceedings in a way that the lawyer considers promotes the welfare and best interests of the child.
[84] In undertaking this role, advocacy of the position and welfare of a child such as Tom could frequently coincide with the litigation stance taken by one of the parent parties. As the decision in Tanner v Edgehill10 notes, however, such coincidence is not seen as “partisanship”.
[85] I accept too that there is no qualitative difference between the role played by a lawyer for the child in the Family Court and on appeal. If, on an appeal, the lawyer for the child considers that the welfare and best interests of the child are best served by supporting or opposing the appeal in whole or in part, then the statutory and ethical role of counsel in acting in saying so is clear.
[86] In the present case, Ms Graham as lawyer for Tom confirms that she attended the three day fixture in the Family Court in May 2016 and she has read and carefully considered Judge Walsh’s judgment and the notes of evidence. In addition, Ms Graham confirms that she has reviewed the law on this appeal and considered the submissions advanced by counsel for the mother and counsel for the father.
[87] In doing so Ms Graham submits that in his judgment Judge Walsh properly considered all aspects as he was required to do so by law, and there was sufficient evidence to support all the findings he made. Indeed, Ms Graham concluded in her submissions before me that all the evidence before the Court here was overwhelmingly in support of the relocation being declined and the current shared
care arrangement for Tom in Christchurch continuing.
10 Tanner v Edgehill [2008] NZFLR 262 (HC).
Conclusion
[88] For all the reasons I have outlined above, I reach the clear view that the mother has been unable to discharge the onus on her of satisfying this Court that a different decision to that reached by Judge Walsh in the Family Court should be made. I do not consider that Judge Walsh in the Family Court erred in any way such that his decision could be considered as wrong. Even considering the merits of this case afresh, I need to say here that I would have reached the same conclusions as Judge Walsh did in his decision under appeal.
[89] I also accept the view of Ms Graham, counsel for Tom here, that the evidence in this case was overwhelmingly in support of the relocation being declined.
Result
[90] This appeal is dismissed. The current care arrangements for Tom are confirmed.
Costs
[91] Costs are reserved. If they are in issue between the parties and costs cannot be resolved by counsel, they may file memoranda on the question (sequentially) and I will decide the question of costs on the memoranda and all material then before the Court.
...................................................
Gendall J
Solicitors:
Parry Field, Christchurch
Copy to
Jason Wren, Barrister, Christchurch
Julia Graham, Barrister, Christchurch
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