Henderson v Morgan
[2013] NZHC 1957
•5 August 2013
ANONYMISED VERSION AVAILABLE FOR PUBLICATION IN THIS FORM. THE NAMES OF PERSONS INVOLVED AND PLACES ARE FICTITIOUS.
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IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
CIV 2012-412-000141
[2013] NZHC 1957
BETWEEN HENDERSON
Appellant
AND
MORGAN
Respondent
Hearing: 5 August 2013 Counsel:
L A Andersen for Appellant R Cardoza for Respondent
N Williams, Lawyer for the Children A Chan, Lawyer to Assist the Court
Judgment:
5 August 2013
(ORAL) JUDGMENT (NO. 3) OF HEATH J
Solicitors:
Katie Lane Law, PO Box 5592, Dunedin Staley Cardoza, PO Box 5698, Dunedin Counsel:
L A Andersen, PO Box 5117, Dunedin N Williams, PO Box 43, Dunedin
A Chan, PO Box 1424, Dunedin
Introduction
[1] Ms Henderson appeals against a decision of the Family Court at Dunedin which had the effect of changing existing day-to-day care arrangements in respect of the two younger children, Alan and David. At the time of a judgment I gave on day- to-day care issues on 9 May 2013,1 Alan was aged 13 years and David, eight.
[2] The appeal was brought against Judge Coyle’s decision to place the children in the primary day-to-day care of Ms Henderson’s former husband, Mr Morgan. I rejected that appeal in my earlier decision but reserved questions of contact for further argument.
[3] At a hearing, on the afternoon 9 May 2013, after delivery of my substantive judgment that morning, a case management conference was held at which a timetable was established for submissions to be filed on questions of contact. I am grateful to all counsel for the helpful memoranda received. I have heard from counsel today to supplement the submissions that have been made.
[4] In determining the day-to-day care issue in favour of Mr Morgan, I expressed a number of concerns about the quality of the relationship that Alan and David might expect with their father if Ms Henderson were to be granted day-to-day care. Those concerns are also relevant to questions of contact. I said:
[81] There are other aspects of the evidence that cause me concern. All directly or indirectly impact upon the quality of the relationship that Alan and David could expect to have with their father, if they were permitted to live with their mother. They are:
(a)Ms Henderson is not prepared to speak to or communicate directly with Mr Morgan over issues of guardianship or contact. She made it clear, in evidence, that that situation will continue until either Mr Morgan “repents” of allegations that he has previously made against her or God tells her it is time for her to do so. I think it is fair to say that Ms Henderson seems unable to focus discretely on the interests of the children, as opposed to her own. I do not believe there is any malevolent motive on Ms Henderson’s behalf. It is simply that she cannot comprehend that her own best interests could be different from those of the children. In her mind, the two will always coincide. She believes that she
1 Henderson v Morgan [2013] NZHC 1010.
must put her own emotional well-being first, in order to be a good parent.
(b)Ms Henderson’s actions in the period leading up to the appeal hearing demonstrated a lack of transparency on her behalf. Dr Smith’s inability to observe the children in her care in Paihia, in the absence of a third person, meant that a balanced assessment of the boys’ behaviour in the care of each parent could not be given. This was exacerbated by Ms Henderson’s decision not to provide detailed updating evidence in respect of the times when the children had been in her care, something that might have remedied (at least in part) the absence of any comment from Dr Smith on her interactions with the children. It should not have been left to counsel for other parties to extract information orally from Ms Henderson on that subject.
(c)Ms Henderson believes that she does not need the burden of dialogue with Mr Morgan about the care arrangements. She is not prepared to move from her position that she must remain in Paihia. She is not prepared to commit to paying for contact costs, citing the fact that she is on extended leave from her current job and is not yet sure whether (or when) she will return to work. While I do not believe that she means it in this way, the general theme that runs through her evidence is the notion that if I were not to place the children in her day-to-day care, she would lose touch with the children because of financial constraints placed upon her. Ms Henderson’s present lack of earning capacity results from her own choice to take extended leave; whether that choice was made for good or bad reasons is beside the point.
...
[86] I am satisfied that Mr Morgan is more likely to promote a continued and meaningful relationship between the boys and their mother. Nevertheless, his best efforts will count for nought if there were no sign of reciprocity from Ms Henderson. On her evidence, there is no prospect, in the immediate future (perhaps, even the medium term) that she will feel sufficiently safe from Mr Morgan to alter her approach. It is conceivable that the use of dedicated email communications might assist this process, though that cannot confidently be predicted. The best interests of the children favour them living with a parent who will, at least, attempt genuinely to contact the other when important guardianship decisions fall to be made. Sadly, I have no confidence that Ms Henderson would contact Mr Morgan, in such circumstances.
(footnotes omitted)
[5] I also made it clear when postponing resolution of contact issues that I wanted to put in place workable arrangements that would enable the children to see their mother as much as possible. Those sentiments were expressed in this way:
[93] My intention is to outline various issues that arise and to indicate the type of commitment that I expect from each parent to ensure contact arrangements work well, from both the children’s and their points of view. When I tell the children of the decision I have made on day-to-day care, I will inform them that I am hearing further from counsel at a later date to ensure that each parent has the opportunity to commit to workable arrangements that will enable them to see their mother as frequently as possible.
[94] I summarise the factors that I consider to be important in relation to the definition of contact so that counsel can consider them and make further submissions:
(a)There is a need to ensure that the children see Ms Henderson as frequently as possible, both in Paihia and at a location in close proximity to Levin. I use the term “close proximity” advisedly. Ms Henderson explained that the “shame” she felt at losing primary care of the children means that she cannot bring herself to go out with the children in Levin; though she regards that aspect as subsidiary to her general fear of seeing Mr Morgan on the streets. Ms Henderson should consider carefully whether some of the contact time could be spent in Wellington, or some other place in proximity to Levin. I am anxious to limit the boys’ travel as much as is reasonably possible.
(b)A “travel fund” will need to be established to enable the boys to travel to Paihia, or for Ms Henderson to travel to a place near Levin at which contact can be enjoyed. Both parents should contribute to this travel fund on a regular basis so that, well in advance of contact times, funds are available to pay for airfares at a lower cost than would otherwise be achievable. On occasions, where road travel is considered more desirable, each parent may wish to consider the possibility of driving to Hamilton for change-overs, with one night being spent there to break the children’s journey from one end of the North Island to the other.
(c)It will be necessary to identify no more than three people who will attend to change-overs for contact purposes and for the particular person to be present on a specific occasion to be nominated no less than (say) three days before change- overs occur. It is important that the children not be left to wonder into whose care they will be delivered at change- overs.
(d)Both Ms Henderson and Mr Morgan must focus on the needs of the children, in relation to their communication. That will require the establishment of a dedicated email address at which contact can be made between Ms Henderson and Mr Morgan directly, but solely for the purpose of dealing with issues relating to contact times and guardianship discussions. If Ms Henderson were not prepared to deal directly with Mr Morgan in that way, I will need to be assured that any arrangements for delegation she
may wish to put into place will not impede the ability for both parents to make jointly any urgent decisions about the children’s welfare. Each parent would need to commit to checking the email address on a regular basis.
(e)Both of the children should have the ability to contact their mother by telephone or email when they wish to do so. I envisage that each child should be able to speak by telephone in private to their mother, or to communicate by email. I would prefer to allow that type of communication to take place as and when the children (or Ms Henderson) thought necessary. Skype contact is also to be encouraged. It should be possible to set up a dedicated email address for each of the children to communicate with Ms Henderson. If that address were secure, Ms Henderson is likely to have greater confidence that she can communicate regularly and privately with the children. Similarly, a mobile telephone could be provided to each child, for this purpose.
[95] As no counsel suggested that the condition requiring no contact with Mr Turner be changed, I intend to include that in any contact order.
Analysis
[6] My concerns about Ms Henderson’s attitude have been evidenced in the contact phase of this appeal. In effect, for all practical purposes, Ms Henderson has disengaged from the process and the existing contact arrangements. That has occurred notwithstanding some constructive proposals made by counsel for Mr Morgan to allow for travel to be undertaken by the children from Levin to Paihia to enable Ms Henderson to have regular contact with the children.
[7] When Ms Cardoza, for Mr Morgan, filed submissions on contact issues on 26 June 2013, she raised a number of problems that had occurred subsequent to the conference of 9 May 2013. Ms Cardoza advised:
2.2On the 11th of May 2013 a contact proposal was emailed to Mr Andersen for contact with Ms Henderson up until 5th of August 2013.
2.3Mr Morgan proposed contact occur from 13 July 2013 for an extended time until Wednesday the 24th of July 2013, or thereabouts depending on the cost and availability of flights. Mr Morgan offered to pay for those flights. Mr Morgan asked for confirmation by Wednesday, 15th of May 2013 that the dates suited Ms Henderson so the flights could be booked at an affordable rate.
2.4On the 12th of May 2013 (mothers day), boys phoned Ms Henderson four times between 5 and 6.30pm, but calls were unanswered and went to the answer phone.
2.5On 15 May 2013, as no response had been received, a further email was sent following up the offer of travel. No response was received.
2.6On 15 May 2013 a proposal was sent to Mr Andersen regarding phone contact, namely as was already the case the boys were able to call their mother at any time they wish prior to bedtimes, and this would be encouraged to continue. The boys had now been advised they had full privacy for phone calls in their bedroom. It was proposed that Ms Henderson was free to ring the boys prior to 7.30pm weekdays and prior to 9.00pm in the weekends. Ms Henderson was provided a landline and Mrs Morgan’s cell phone number which the boys could answer, or alternatively Ms Henderson could text Mrs Morgan’s phone to give notice she would like to call the boys on the landline, so they can answer the phone.
2.7It was also advised on that same date both boys were happy to have an email account to contact their mother. Alan was also keen to have the Facebook account to communicate with his mother. The offer of Skype on the home computer was available, but as there is a fixed line skype could occur in the home office unless the laptop previously that travelled with the boys could be available to them again so as they could Skpe privately in their bedroom using the wifi. No answer was received to that correspondence.
2.8On the 15th of May 2013, the boys rang Ms Henderson at 5.38pm and 5.48pm. the calls were not answered and went to answer phone.
2.917th May – Follow up email sent to Mr Andersen re contact proposal as no response from Ms Henderson had been received.
2.1017th May – flights booked for boys on 13th July until 24th July.
2.1118th May – Boys called Ms Henderson at 1.40pm, 2.08pm and 6.05pm but not answered went to answer phone.
2.1223rd May – Nicola Williams emailed Mr Andersen re speaking with Ms Henderson re contact.
2.1327th May – Mr Morgan spoke to Nicola Williams with concern as to no contact taking place and about contact proposal.
2.1427th May – David called Ms Henderson 3.25pm but call not answered but went to answer phone.
2.1529th May – Boys called Ms Henderson twice after 5.30pm but not answered, went to answer phone.
2.1630th May – David sent a card to Ms Henderson in the post.
2.176th June – Boys called Ms Henderson’s phone twice but not answered, this time David left a message.
2.1810th June – Email sent to Mr Andersen with flight details and asking for response again.
2.1913th June – four previous email proposals forwarded to Mr Andersen from Ms Cardoza as Mr Andersen advised he had not received them. Apparently Nicola Williams email of 23rd May had been received.
2.2014th June – No response to contact proposal received.
2.2114th June – Boys called Ms Henderson but not answered.
2.2217th June – Boys sent a card to Ms Henderson for her birthday (19th June).
[8] After receipt of that memorandum, I asked Ms Williams, Lawyer for the Children, to speak to the children and Ms Henderson, to verify the instructions that Ms Cardoza had conveyed. Ms Williams reported on 9 July 2013. While both boys were hopeful of contacting their mother, they corroborated the problems identified by Ms Cardoza. Ms Henderson did not respond to telephone calls made by Ms Williams to her. Nor did she answer a letter sent.
[9] Mr Andersen, for Ms Henderson, informed the Court that he has no instructions to make submissions. Recently he received a letter from Ms Henderson. She asked that it be read in Court. Having inquired from Mr Andersen the nature of the letter I ruled that it was inappropriate for that to be done. However, Mr Andersen did, in submissions filed on 2 August 2013, identify the essence of her observations. He wrote:
3.The matters in the letter that I see as being relevant to the hearing are:
(a)She has chosen to have no contact with Mr Morgan or his family members at his home with her reason being that to do so would put her at risk;
(b)She has no available finances so is unable to make any contribution towards travel arrangements or take on responsibilities that require financial support;
(c)She discusses the unfairness of her obligation for maintenance for child support and the review that was held by Mr Morgan when she was overseas and unable to respond;
(d)She hopes that the children will one day return to her fulltime care.
[10] Ordinarily, Ms Henderson’s stance would result in dismissal of her appeal. However, in this case there is a need to adjust the existing orders so that Mr Morgan is not placed in the invidious position of arranging transport from Levin to Paihia, meeting the cost of that and yet having no assurance that Ms Henderson will exercise contact through that process.
[11] I raised with counsel whether there was jurisdiction to make an order varying the existing contact arrangements even though Ms Henderson’s appeal would otherwise be unsuccessful. I received a helpful submission from Ms Williams on jurisdiction.
[12] This Court’s jurisdiction on appeal from the Family Court on parenting issues is governed by s 143(1) and (4) of the Care of Children Act 2004, s 76(3) of the District Courts Act 1947 and r 20.19 of the High Court Rules. The appeal is conducted by way of rehearing and this Court may make any order it considers should have been made in the Family Court based on the evidence actually before the High Court.
[13] In my view, adjustments to the contact orders are required to meet changed circumstances that have arisen both as a result of additional evidence heard on the appeal and the position taken by Ms Henderson on the contact issues. In my view, it would be wrong in the circumstances of this case to subject (particularly) the children to yet another round of litigation in the Family Court to resolve an issue that I can deal with today.
[14] Ms Cardoza proposed a contact order in her submissions of 26 June 2013. Subsequently, both Ms Williams and Ms Chan, Lawyer Assisting the Court, have expressed broad agreement with those proposals. The intention is that Ms Henderson would be entitled to exercise contact in Paihia both during particularised school holidays and the summer vacation. Telephone contact was to be permitted. Up to three mid-term contact visits were to be undertaken. The possibility of Skype and email contact with the boys was suggested, particularly with Alan who now has a dedicated email account for the purpose. An email account could be set up for David also in that regard. Mr Morgan is willing to meet costs of the children
travelling to and from Paihia. Particular suggestions were made in that regard. Other proposals were made for arrangements on changeovers, to alleviate concerns raised in my substantive judgment.
[15] A further issue discussed today is the need to give a degree of certainty to the boys about when they will travel to Paihia to see their mother. That is the primary driver of my desire to see something incorporated into the order which will require Ms Henderson to confirm contact arrangements no less than four weeks prior to the proposed visits. However, there is a secondary concern arising out of the need for Mr Morgan to expend money that might be wasted if contact visits were not undertaken. Counsel believe that appropriate wording can be agreed to accommodate those concerns, within the structure of the proposal made by Ms Cardoza. I have not sought submissions from Mr Andersen on these issues as he is without instructions on them.
[16] I propose to dismiss the appeal but in doing so to vary the contact arrangements. A draft order giving effect to that intention will need to be prepared by counsel and submitted for my approval. Once that order has been approved, it can be sealed and proceedings in this Court will then be at an end.
Result
[17] I dismiss Ms Henderson’s appeal, subject to variation of the contact order. To meet the changed circumstances, contact arrangements shall be varied to meet the goals identified in Ms Cardoza’s memorandum of 26 June 2013 and the need for the boys to have certainty about the times they will be travelling to see their mother.
[18] Ms Cardoza, Ms Williams and Ms Chan shall confer over the terms of a draft order which shall be submitted no later than 5pm on 12 August 2013. If there were any differences as to precise terms of the order, the competing proposals shall be put before me in a joint memorandum and I will then rule on the appropriate wording in a final decision. Deliberately, I have left Mr Andersen out of the process for agreeing the draft order given his current position and absence of instructions.
[19] Having provided input into the draft order and advised the children of the outcome of the contact part of the hearing, Ms Williams’ role as Lawyer for the Children will cease. Her costs and disbursements shall be paid out of funds appropriated by Parliament for the purpose. The Court thanks Ms Williams for her considerable assistance in this appeal.
[20] Ms Chan’s role as Lawyer Assisting the Court will also terminate after her input into the draft order. I thank her also for her assistance. Ms Chan’s costs and disbursements shall be paid out of moneys appropriated by Parliament for the purpose.
[21] Mr Morgan has been in receipt of legal aid for this appeal. Ms Cardoza has made an application for costs on his behalf, as she is obliged to do.
[22] I am not prepared to make an order for costs. There has been lengthy and difficult litigation over recent years in both the Family Court and this Court. If there were anything left that could inflame the position more it would be by making an order for costs against Ms Henderson. I do not consider that to be appropriate.
[23] Having said that, Ms Henderson must realise that the orders that are now in place are intended to provide stability for the boys over the coming years. Unless there were genuine grounds, based on a material change in circumstance, I consider it likely that Ms Henderson would be at risk for costs should she bring any further proceedings to affect the parenting arrangements in the foreseeable future.
[24] I also thank Ms Cardoza and Mr Andersen for the constructive way in which they presented their respective clients’ cases to the Court on the appeal.
P R Heath J