Hopkins v Jackson
[2022] NZHC 2649
•13 October 2022
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 https://www.justice.govt.nz/family/about/restriction-on- publishingjudgments/
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2022-485-447
[2022] NZHC 2649
BETWEEN HOPKINS
Appellant
AND
JACKSON
Respondent
Hearing: 10 October 2022 Appearances:
Appellant in Person
A Esera for Respondent S Hughes for Child
Judgment:
13 October 2022
JUDGMENT OF McQUEEN J
[1] This is an appeal by Mr Hopkins against a Family Court decision that determined the care arrangement for the parties’ child, Kara, and directed which school Kara should attend.1
[2] The parties are the parents and guardians of Kara. Kara was born on 20 October 2017 so is imminently due to turn five years old and begin school. Accordingly, the appeal was given urgency.
1 [Hopkins] v [Jackson] [2022] NZFC 5719 [Family Court decision]. The names of the parties and children have been anonymised in light of the suppression orders.
HOPKINS v JACKSON [2022] NZHC 2649 [13 October 2022]
Background
[3] The parties separated in 2020. Mr Hopkins has two other daughters through a previous relationship, Ella (presently nine years old) and Hana (presently six years old). He shares care for Ella and Hana with their mother on an equal care basis, as ordered by the Family Court. Ms Jackson has 14-year-old twin boys through a previous relationship. Ms Jackson cares primarily for the boys, but they have regular contact with their father.
[4] The Family Court has previously been involved in the parties’ care arrangements for Kara. The parties have had a difficult relationship since separation with notable communication difficulties. For the purposes of this judgment, I do not need to canvass in detail the evidence or submissions made on this issue. There is no dispute that Kara’s parents, however, are both committed to her and wish to be extremely involved in her upbringing.
[5] For over two years,2 and until the care arrangement ordered in Family Court judgment under appeal was implemented,3 there was a joint care arrangement of a 2:2:3–day care regime.4
[6] Mr Hopkins sought the continuation of that care arrangement and a direction that Kara be enrolled in Churton Park School.
[7] Ms Jackson sought to significantly adjust the care arrangement to a 9:5 care regime over a 14-day period, proposing that Mr Hopkins have Kara in week one from 10 am on Monday until before school/daycare on the Tuesday and on Friday from school/daycare until midday Monday. In week two, she proposed that Mr Hopkins’s care cease on the Monday at midday and he would have video contact with Kara on Wednesdays and Fridays at 6 pm. Ms Jackson also sought a direction that Kara be enrolled in Papakōwhai School.
2 It was Ms Jackson’s evidence that this care arrangement existed for two and a half years.
3 Implementation of the new care arrangement occurred at the beginning of the third school term.
4 There is disagreement between the parties about how that arrangement came about but I do not need to address that in this judgment. The Family Court Judge noted at [57] that as both parties are now playing a significant role in the child’s life and doing a good job in their parenting of Kara there is no basis for any change by solely on a non-disclosure issue.
Legal principles
[8] It is helpful to first set out the legal principles relevant to the Family Court decision. The relevant substantive law in this matter is found in the Care of Children Act 2004 (the Act). Section 4 of the Act requires the welfare and best interests of the child to be the first and paramount consideration in any proceedings brought under the Act including in relation to day-to-day care of a child. Section 4(2) requires that:
(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
(iii) 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.
[9] Section 5 sets out the principles relating to a child’s welfare and best interests and I set it out in full:
5.Principles relating to child’s welfare and best interests
The principles relating to a child’s welfare and best interests are that:
(a)a child’s safety must be protected and, in particular, a child must be protected from all forms of violence (as defined in sections 9(2), 10, and 11 of the Family Violence Act 2018) from all persons, including members of the child’s family, family group, whānau, hapū, and iwi:
(b)a child’s care, development, and upbringing should be primarily the responsibility of his or her parents and guardians:
(c)a child’s care, development, and upbringing should be facilitated by ongoing consultation and co-operation between his or her parents, guardians, and any other person having a role in his or her care under a parenting or guardianship order:
(d)a child should have continuity in his or her care, development, and upbringing:
(e)a child should continue to have a relationship with both of his or her parents, and that a child’s relationship with his or her
family group, whānau, hapū, or iwi should be preserved and strengthened:
(f)a child’s identity (including, without limitation, his or her culture, language, and religious denomination and practice) should be preserved and strengthened.
Family Court decision
[10]Judge Grace opened his reserved judgment with these words:5
I want to say at the outset that this decision has taken longer than I had indicated. It has not been an easy decision as the factors have been finely balanced. One or both parties will be disappointed with this decision, but the parties abrogated the responsibility for the decision to the Court due to their inability to reach an accord between themselves. There are no winners in these situations. The focus must be on [Kara] and making a decision that will work for her and, in doing that, the interests of the parents take second place.
[11] The Family Court received a psychological assessment prior to the hearing.6 The Judge noted that the report recorded that Kara has a good relationship with each of her parents and with her half-siblings.7 It also recorded that Mr Hopkins and Ms Jackson differed in their views about whether Kara was showing signs of distress at changeovers, but the report writer said that such distress appears “of recent times to have diminished” and she considered it may reflect tensions and conflict in the parental relationship rather than any lack of attachment to either parent.8 The report concluded that Ms Jackson had good parenting skills and there was nothing of concern with those skills.9 It also concluded that that Mr Hopkins presented some parenting behaviour that was of concern although the effect of his parenting skills “is not likely to be seriously harmful to [Kara]”.10 The report writer did express concern with the concept of co-parenting in this case, noting the parties’ conflictual relationship. She considered that most of the hostility is from Mr Hopkins (but the Judge records that Mr Hopkins does not agree with this).11
5 Family Court decision, above n 1, at [1].
6 Counsel for the child was also involved in the hearing. She also spoke with Kara prior to the hearing. That discussion is recorded in a memorandum of counsel dated 26 May 2022 which was provided to me at the hearing of the appeal.
7 Family Court decision, above n 1, at [24].
8 At [23].
9 At [25].
10 At [25].
11 At [26].
[12] The Judge observed that the report writer summarised the three possibilities as to the future care arrangement:12
(a)To maintain the (then) current 2:2:3 shared care regime, offering the advantage of continuity and familiarity, and not requiring any further adjustments from Kara. The disadvantage is that it means a long day in day care for Kara on the days when Mr Hopkins cannot pick her up until about 5.45 pm.
(b)The majority of the care being placed with Ms Jackson, resulting in Mr Hopkins having about 35 per cent of Kara’s time. The report writer identified this is a level at which the benefits of shared care are evident, noting that Kara would spend less time in day care. The report writer also pointed out it offered Kara more contact with her half-brothers while maintaining a reasonable amount of contact with her half-sisters.
(c)To place Kara in the majority care of Mr Hopkins, resulting in three days care with Ms Jackson. The disadvantage of this option was insufficient time with Kara’s mother to support a close relationship and that it would be a significant, and likely difficult, change for Kara.
[13] The Judge focused on the requirement in s 4 of the Act for a decision that would advance the best interests and welfare of Kara.13 The Judge observed that this required him to take account and apply the various principles set out in s 5 of the Act.14 The Judge noted that none of the principles take any precedence or priority over the other. He then reviewed each of the principles in s 5 of the Act and discussed relevant matters relating to Kara in the context of each.15
[14] In relation to s 5(a) (protection from all forms of violence) the Judge said there is no suggestion from either parent that either of them poses a risk of physical harm to
12 At [27]–[30].
13 At [32].
14 At [33].
15 At [33].
Kara.16 He noted that the only risk that prevails in this case is the parties’ attitudes towards each other and their inability to communicate with each other, and how the impact of that may spill over to Kara and her understanding and relationship with each of her parent.17
[15] In relation to the principle articulated in s 5(b) of the Act (parents and guardians having prime responsibility for the care of a child), the Judge noted that Kara’s parents have equal status, and each have played a significant role in her life.18
[16] The principle set out in s 5(c) of the Act relates to the ongoing consultation and co-operation between the child’s parents and guardians. The Judge noted that this is where the difficulties in this case do arise. He observed that neither parent appears capable of making change and, consequently, it seems that the current state of poor communication is likely to continue into the future.19 He cautioned the parties that if they are unable to act civilly to each other, they risk being responsible for irreparable damage to Kara as their behaviour will impact on her as she develops into her teenage years and eventual adulthood.20
[17] Regarding the principle set out in s 5(d) promoting the continuity in a child’s care, development and upbringing, the Judge noted that Kara had almost two years21 now of a continuous care regime and the evidence suggests that Kara has settled and appears to be flourishing with the current care arrangement.22 The Judge observed:23
In my view, there would need to be a significant reason as to why the arrangement needs to change. There is nothing in the evidence that has been produced at this hearing to suggest that there is such a significant reason.
[18] The principle set out in s 5(e) relates to a child’s continued relationship with her parents and her family group, whānau, hapū or iwi and the strength and preservation of such relationships. The Judge observed that both Mr Hopkins and
16 At [49].
17 At [50].
18 At [52].
19 At [58].
20 At [66].
21 As noted earlier, it was Ms Jackson’s evidence that the arrangement was in place for about two and a half years.
22 At [68].
23 At [68].
Ms Jackson have developed their lifestyle and work arrangements around their care of their respective children. The Judge observed that Kara has significant input into the lives of her siblings24 and, likewise, they have a significant input into her life.25 The Judge observed:26
To re-adjust the current care arrangements would result in a diminishing of either her relationship with her step-sisters or her relationship with her step- brothers. If there were to be a reduction with either sets of step-siblings, in my view that would reflect negatively on [Kara] as it would impact on her relationship with them.
[19] The Judge then concluded that the final principle, s 5(f) of the Act, requiring that a child’s identity (including, without limitation, her culture, language, and religious denomination and practice) should be preserved and strengthened “does not have much bearing” in this case.27
[20] Having considered all the principles in relation to Kara, the Judge concluded that either party would be able to parent Kara appropriately.28
[21] The Judge then turned to school dispute. The judgment records that Mr Hopkins wished Kara to attend Churton Park School because his two other children attend that school, and he wishes Kara to attend with her sisters.29 Mr Hopkins is unable to collect Kara until around 5.45 pm due to his work commitments.30 He is able to make arrangements for after school care in the Churton Park area but he would not be able to do the same at Papakōwhai School as he cannot be sure he would be at their after school facility by 5.45 pm. Mr Hopkins can also drop Kara at Churton Park School on his way to work. He would not be able to drop her at Papakōwhai School and then drop his other children at Churton Park School and still get to work on time. On the other hand, Ms Jackson is able to collect Kara from
24 The judgment refers at different points to Kara’s sisters and brothers as both being half-sisters and half-brothers, and step-sisters and step-brothers. I am confident that the Judge’s use of the word “step-sister” or “step-brother” was an inadvertent error and that he clearly understood the biological relationships that exist between Kara and her half-siblings. In this judgment I use “sister” and “brothers” when required.
25 Family Court decision, above n 1, at [69]–[71].
26 At [71].
27 At [72].
28 At [73].
29 At [74].
30 At [75].
Papakōwhai School and the Judge observed that she can adjust her work hours to fit around school hours.31 If Kara were to attend Churton Park School, however, Ms Jackson would have to travel from her place of work to collect Kara and then travel back home.32
[22] The Judge identified that in the normal course of events, a child will attend a school within their neighbourhood, and within their school zone.33 He described that attending a local school along with other children from the local neighbourhood allows the child to interact and form friendships with other children in the area.34 The Judge considered that the friendships formed at school and within the child’s community are important to a child’s development.35 He concluded that a child who is educated out of zone is not likely to form the same connections and friendships, noting that friendships formed when schooling is at a distance are unlikely to be maintainable outside of school hours due to distance.36 Further, he observed that the children at the preschool attended by Kara while in Ms Jackson’s care will likely be attending Papakōwhai school and that she would be unable to continue those relationships if she went to a different school.37
[23] The Judge therefore concluded that he had to balance the advantages of Kara attending the same school as her sisters against the impact on Kara of not being in a position to form friendships with children attending her local school and living within her community.38 The Judge regarded Mr Hopkins’s approach as being based around his needs and wishes and that he was overlooking that this decision must be about Kara and her best interests and welfare.39
31 At [78].
32 At [79].
33 At [80]. The Judge noted that there are exceptions for this, where attendance is required at a religious school or a private school, but those exceptions do not apply in Kara’s case.
34 At [81].
35 At [82].
36 At [81].
37 At [85]. The Judge recorded that Kara has been enrolled at two different pre-school facilities and that this has been dictated by Mr Hopkins based on his work commitments and needs. It was clarified at the hearing before me that this was a misunderstanding by the Judge, and Kara only attends one pre-school, based in Mana.
38 At [82].
39 At [83].
[24] Ultimately, the Judge came to the view that Kara should attend Papakōwhai School as that will allow her to develop and maintain friendships with those students within her school community and within her local community. He found that this decision dictated the care arrangement.40 He said this is because the evidence is that Mr Hopkins cannot alter his work commitments and get Kara to Papakōwhai School and then get to Churton Park School to drop his other children there on the days he has them. Nor can he get back to collect Kara from afterschool care on the days he has her.41 He said that the equal care arrangement sought by Mr Hopkins should not be implemented merely because both parents are equally capable of parenting Kara, rather the arrangement must work for Kara, not just a parent.42
[25] As a result, the Judge concluded that the care proposal put forward by Ms Jackson is appropriate for Kara.43 Thus, he ordered that Kara’s care to be on a two-week cycle as follows:44
(a)In week one she will be in [Mr Hopkins’] care from Monday at 10 am until before school/daycare on the Tuesday, and on Friday from daycare/school until midday on the following Monday.
(b)In week two, [Kara] will be in [Ms Jackson’s] care from midday on the Monday. [Kara] can have video contact, by Facetime, with [Mr Hopkins] on Wednesdays and Fridays at 6 pm, and due to [Kara’s] age, that connection shall be initiated by [Ms Jackson].
(c)At all other times during the school terms [Kara] will be in the care of [Ms Jackson].
[26] The Judge continued on to make other orders relating to public holidays, school holidays and Christmas, which I do not need to address.
40 At [88].
41 At [88].
42 At [89].
43 At [90].
44 At [91].
Approach to this appeal
[27] The appeal is brought under s 143(4) of the Act. This is a general appeal that proceeds by way of rehearing.45 As the Supreme Court stated in Austin, Nichols & Co Inc v Stichting Lodestar the appellant bears an onus of satisfying the appeal court that it should differ from the decision under appeal, and it is only if the appellate court considers that the appealed decision is wrong that the appellate court is justified in interfering with it.46 However, the appellant is entitled to judgment in accordance with the opinion of the appellate court, even where that opinion is an assessment of fact and degree and entails a value judgment. If the appellate court reaches a different conclusion then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ.47
[28] While the High Court will naturally give weight to the views of the Family Court, it is fully entitled to substitute its views on questions of fact, which includes the issue of what is in the best interests of the child concerned. There is no rule of law requiring the High Court to defer in these respects to the Family Court even in a finely balanced case.48 Any influence the Family Court’s reasoning may have is for the appellate court to assess.49 The appeal takes place on the notes of evidence adduced at the Family Court hearing.50
[29] Under r 20.19(1) and (3) of the High Court Rules 2016, the High Court, after hearing an appeal may:
(a)make any decision it thinks should have been made by the Family Court;
45 Section 143(4) of the Care of Children Act 2004 provides that the High Court Rules 2016, and ss 125–130 of the District Court Act 2016, with all necessary modifications, apply to an appeal under s 143 of the Care of Children Act 2004 as if it were an appeal under s 124 of the District Court Act 2016. Section 127 of the District Court Act 2016 states that appeals must be by way of rehearing.
46 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [4].
47 At [16].
48 D v S [2003] NZFLR 81 (CA) at [86] per Blanchard J.
49 Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [31].50 Unless the record of evidence is not available or has been shown to be inaccurate: Swayne v Lush
[1999] NZFLR 49 (HC). This is not the case in the present appeal.
(b)direct the Family Court to rehear the proceedings concerned;
(c)direct the Family Court to consider or determine any matters that the High Court specifies;
(d)direct the Family Court to enter judgment for any party to the proceedings;
(e)make any further order it sees fit; and
(f)make any order for costs.
The appellant’s submissions
[30]Mr Hopkins appeals on the basis that the Family Court erred:
(a)by determining that the care arrangement for Kara should change as a result of the decision made in respect of the school she is to attend;
(b)by failing to give proper weight to the detriment of Kara of reducing her time with her sisters, when determining the care arrangement.
[31] Mr Hopkins asks this court to cancel the parenting order made by the Family Court and for the care arrangements to revert to those in place prior to the Family Court decision, and to allow Kara to attend Churton Park School with her sisters.
[32] Mr Hopkins submitted that since the Family Court decision, he now has Kara once every fortnight which also means that his older girls and Kara only see each other once a fortnight. He said this has been a long time for the tamariki when they were used to seeing each other as least every few days and has been traumatic for both him and the girls.
[33] Mr Hopkins submitted that the Family Court Judge made the following errors in his decision, notably:
(a)The Judge said there was not a good reason to change the existing arrangement, where Kara was settled and flourishing, but then decided to change it anyway based on what school she should attend.
(b)The Judge did not consider the full impact of changing the care arrangement on Kara’s relationship with her sisters and whānau (as well as her hapū and iwi). Related to this, the Judge did not consider Kara’s identity and culture to be a relevant consideration, even though Kara is Māori and the decision drastically reduces time with her Māori whānau.
(c)Rather than focusing on Kara’s Māori identify and relationship with her whānau, hapū and iwi, the Judge prioritised instead on Kara’s connections to her school and local community.
(d)The Judge criticised Mr Hopkins for not being able to pick up Kara in time from the more distant school (Papakōwhai). Mr Hopkins submits that that should not automatically count against him. He is a working parent trying to provide for his children financially, emotionally, and culturally. The Judge did not give any real consideration to whether Ms Jackson, who has more flexibility, could travel a small distance further to Churton Park School, which would have allowed the equal care arrangement to continue.
[34] Mr Hopkins also submits that the Judge did not properly consider the principles set out in ss 5(d), (e) and (f) of the Act. Mr Hopkins says that the Judge’s decision is inconsistent with Kara’s welfare and best interests in her particular circumstances because it:
(a)drastically reduces the time Kara spends in her father’s care and diminishes her relationship with him;
(b)disrupts continuity of care as it drastically changed the existing arrangement in which the Judge said Kara was “settled and appears to
be flourishing”;
(c)disrupts and diminishes Kara’s relationship with her sisters (who she has closely bonded to);
(d)disrupts and diminishes her relationship with her hapū and iwi (which she connects to through Mr Hopkins);
(e)prioritises tikanga Pākehā over tikanga Māori and as such is inconsistent with tikanga Māori especially whakapapa and the exercise of whanaungatanga;
(f)fails to consider the impact of the changed care arrangements on Kara’s identify as a Māori child.
[35] Mr Hopkins made extensive submissions in support of his case based on tikanga Māori. Mr Hopkins believes that the way the Family Court made its decision shows that it is still blind to Māori culture. The Judge did not seem to consider how his decision would affect Kara’s relationship with her whānau. By not prioritising whanaungatanga, it has taken away the opportunity to thrive as a whānau and Kara’s access to her identify and culture.
[36] Mr Hopkins noted that in the Family Court he was not asked to talk about the place of te ao Māori in the lives of himself and his daughters. He submitted:
I did not know that I could do that. I wish I had been asked. I don’t think I should be disadvantaged now by the fact that no one in the courtroom was conscious of how important these things are to Māori. I now know these things could have been raised. My hope for other Māori is that Judges will raise this issue when the lawyers do not — that Judges will make sure their courtroom is not monocultural.
[37] Regarding the importance of Kara’s kin relationships and her connection to her culture, Mr Hopkins quoted the following whakatauki to explain the place and significance of tamariki to the whānau, hapū and iwi in tikanga Māori:
Hutia te rito o te harakeke Kei hea te komako e ko?
[If the new grown of the flax bush is stripped out then where will the Bellbird sing when it returns in summer?]
[38] He submitted that Kara should not lose access to her Māori heritage because he did not know to raise it in the Family Court. He also said that tikanga does not just drop away when it is not discussed. It exists whether someone raises it or not and as a framework and set of rules for living our lives as Māori. Mr Hopkins believes that whanaungatanga should be understood and applied automatically by the Family Court when judges are deciding Māori children’s lives, and that is what he is seeking.
[39]Mr Hopkins explained that everything he does is for his daughters. He says:
They are my life. I organised my working life around them. I am a working professional and so that means I do have less flexibility. But I do not believe being a working parent should be held against me — I am trying my best to support my daughters, to be a part of their lives as much as possible. That is whanaungatanga.
[40] Mr Hopkins totally rejected that his preference for care arrangements is in his own interests. He also submitted that it is not right to assume that more time for Kara at home after school with her mother is more important than Kara’s time with her sisters and him. Mr Hopkins submits that the Judge did not understand that closeness of the relationship between Kara and her sisters, including their closeness in age.
The respondent’s submissions
[41] Ms Esera, counsel for Ms Jackson, relied on her written submissions and said that the Family Court Judge appropriately assessed Kara’s welfare and best interests as required by s 4 of the Act and considered the relevant principles in s 5, having regard to the evidence before him. Ms Esera submitted that the Judge was at liberty to find that Mr Hopkins’s desire for Kara to attend Churton Park School was, at least in part, due to convenience when Kara is in her father’s care, and that the Judge carefully considered the benefits to Kara of attending a school in her local area.
[42] Ms Esera submitted that just because the Judge’s consideration of Kara’s relationships with all of her siblings did not produce the outcome sought by
Mr Hopkins, this does not equate to the Judge failing to give proper weight to the effects of the care arrangement of reducing Kara’s time with her sisters, as seen in paragraphs [69] and [70] of the judgment.
[43] Ms Esera submitted that the reality for Kara’s parents is that her mother is more available than her father. As a result, Kara being in her mother’s care will result in less time at before and after school care and shorter days for Kara, which is significant for a child of her age.
[44] Ms Esera said that no arguments relating to Kara’s identity as a tamaiti Māori were advanced by Mr Hopkins in the Family Court and none of his evidence across the course of the proceedings (seven affidavits) addressed these matters. Ms Esera objected to Mr Hopkins providing evidence by way of submission where no leave has been sought to file new evidence. She noted particularly that no other evidence was filed with the Family Court nor any tikanga arguments advanced in the hearing under appeal. As a result, Ms Esera submitted that it is not open to Mr Hopkins, having been unsuccessful in the Family Court, to change tack on appeal.
[45] Ms Esera pointed out that Ms Jackson is of Tahitian/Chinese and Italian descent and thus, together with Mr Hopkins’s Māori heritage, Kara is a young person of rich cultural heritage. Ms Esera submitted that the Family Court decision allows Kara’s identity to be preserved and strengthened and that there is no legal assumption that a child with a particular cultural heritage should therefore spend more or less time in that parent’s care.
[46] Ms Esera submitted that the order made by the Family Court provides for Kara to have regular predictable and certain time with her father and sisters, and her mother and brothers. No pre-enrolment steps have been taken at Churton Park School, but some have been undertaken at Papakōwhai School and therefore a shift to Churton Park School would be disruptive for Kara.
[47] Ms Esera submitted that Mr Hopkins has not identified any error in the Family Court judgment to support his appeal. She submits that the Court is only justified in
interfering with a decision if that decision is wrong and the Judge has erred, and that as this is not the case here the Family Court decision should stand.
Submissions from counsel for the child
[48] Ms Hughes, counsel for the child, provided the Court with a copy of her most recent memorandum dated 26 May 2022, which summarises the meeting Ms Hughes had with Kara to discuss with her about Kara’s views, as far as counsel could ascertain them given her age and stage, in relation to the care arrangements for Kara and which school she is to attend. Ms Hughes noted that Kara’s views, as expressed in the memorandum, could not be determinative in this case.
[49] Ms Hughes informed me that based on publicly-available information, Ms Jackson’s home is in zone for Papakōwhai School and neither Ms Jackson’s home or Mr Hopkins’s home are in zone for Churton Park School. Kara is able to attend Churton Park School because her sisters are already students there.
[50] Ms Hughes expressed her view that Kara needs to be protected from ongoing conflict between her parents, of which there is plenty of evidence. The arrangement put in place reduces the need for as much communication as has been occurring under the previous care arrangement.
[51] Ms Hughes also noted that she had pointed out to the Judge at the Family Court hearing that Papakōwhai School goes to Year 8 while Churton Park School only goes to Year 6.
Discussion
[52] The key issue in this appeal is whether the Family Court Judge properly applied the principles in s 5 of the Act to ascertaining what care arrangement and attendance at what school would best promote the welfare and best interests of Kara. I consider that he did not do so.
[53] In reaching his decision the Judge canvassed the principles contained in s 5 of the Act as they related broadly to the care arrangements and concluded on that basis
that Kara was “flourishing” under the 2:2:3 arrangement and that either party was fit to parent. However, the Judge then made his decision on schooling, relying primarily on the importance of local friendships, which then ‘dictated’ that the care arrangements regarding Kara had to change. The effect of this conclusion is that the Judge’s assessment as to the importance of the local community and local friendships outweighed the s 5 considerations he had earlier assessed.
[54] In my view the Judge placed insufficient weight on the application of the principles found in s 5(d), (e) and (f) of the Act. These principles are set out earlier in the judgment, but I summarise them here as relating to continuity of care, the child’s relationship with parents and wider family and the child’s identity.
[55] I consider the Judge erred in giving insufficient weight to the principle relating to continuity as set out in s 5(d). Mr Hopkins has had a significant role in caring for Kara in her life to date, as he has in caring for his older daughters. The Judge emphasised the importance of continuity for Kara’s care, going so far as to say that there was nothing in the evidence that suggested a change to the (then) current care arrangement was required, as Kara was flourishing, but for his conclusion that the schooling decision was determinative.51 While as noted earlier, there is some dispute as to how the 2:2:3 care arrangement came about, the fact is it has been in place for at least two years and Kara was doing well under the arrangement.
[56] It is also important to note that at this time, the (now) current arrangement as proposed by Ms Jackson has now been in place for the entirety of School Term 3. I am mindful that, to some extent, Kara may have adjusted to this as a new routine for her. However, I do not consider that these last weeks outweigh the stability of the routine over the last two years or so, particularly when taking into account the principles discussed below.
[57] I also consider that the Judge erred in failing to give sufficient weight to the preservation and strengthening of Kara’s relationship with her whānau as required by s 5(e) of the Act. In particular, the Judge does not give adequate consideration to Kara’s relationship with her father and her sisters.
51 Family Court decision, above n 1, at [68].
[58] The Family Court Judge recognised the implications of being away from one parent for a period. In the context of considering video contact with Kara while she is away from a parent for a week or more, the Judge said that:52
Kara is a young child and the parties have a responsibility and a duty to her to ensure that he life goes as smoothly as possible. Anything that can be done to make her life as normal as possible should be implemented. I consider that for Kara to be away from either parent for more than a week could be concerning for her, despite what the parents may think.
[59] However, it is the import of the decision that Kara will be away from Mr Hopkins for almost exactly a week at a time, every second week—from Monday midday to the following Monday at 10 am (although having Facetime contact twice during this week). I accept that this will undoubtedly have an impact on the strength of their bond and the bond between Kara and her sisters.
[60] As noted above, in assessing where Kara should go to school, the Judge balanced the “advantages of attending the same school as Kara’s [half]-sisters against the impact on Kara of not being in a position to form friendships” within the community.53 In my view, given the Judge’s position that the school decision necessarily dictated the care arrangements, the Judge was required to consider the impact that the proposed care arrangement would have on the relationship of Kara with her sisters in light of the contact that they also have with their each other outside of school.
[61] Kara’s sisters are, respectively, one year and four years older than her. This is much closer in age to Kara than Kara’s brothers, who are nine years older than her and attending high school. The evidence confirms that Kara has a good relationship with all her siblings. Nonetheless, Mr Hopkins’s evidence is that she has a close bond with her sisters, and it is reasonable to assume that this is enhanced by their relative closeness in age. It seems likely that the most significant day-to-day sibling relationship Kara will have is at home with her sisters. In any event, the return to equal care does not diminish the opportunity to maintain a relationship with her brothers.
52 At [102].
53 At [83].
[62] Churton Park School takes students to Year 6. This means, regarding Mr Hopkins’s older daughters, Ella will remain at Churton Park School until the end of 2023 and Hana for four more years. I consider it difficult to hypothesise whether Kara will play with her sisters at school when they are in a different year group and have their own friends. However, I prefer instead to place weight on the significance of Kara building strong relationships with her sisters as a result of her presence at Mr Hopkins’s home at the same time as her sisters, as well as being able to travel to and from school together with them.
[63] Given the importance of the relationship between Kara and her sisters, I also consider that the evidence does not support the Judge’s conclusion that Mr Hopkins was simply promoting his own interests in his proposal that the 2:2:3 care arrangement continue, and that Kara attend Churton Park School along with her sisters.
[64] Mr Hopkins complies with another Family Court order in relation to his two older daughters. This order prescribes a 2:2:3 care arrangement (as was previously in place in relation to Kara) and, amongst other things, requires him to collect them from after school care at Churton Park School when they are in his care. I accept Mr Hopkins’s submission that he is a working parent who is trying his best to support his daughters and be part of their lives as much as possible. This means he prefers Kara to attend Churton Park School. But the reasons for that are to have his three daughters attending the same school and so that he can continue to care for Kara on an equal care basis as he has done for some time.54 I consider that it is unfair to cast those reasons as Mr Hopkins being self-interested.
[65] Mr Hopkins’s arguments about the relevance of tikanga Māori were not before the Family Court Judge so he could not address them. However, I consider it is appropriate for me to address the points made, albeit in a limited way given the short timeframe I have had for delivering this judgment.
54 Mr Hopkins’s evidence was that he would prefer Kara to attend Churton Park School even if the care arrangement was changed, to continue Kara’s connection with her sisters.
[66] It is well established that tikanga is part of the common law in Aotearoa New Zealand.55 It is also the case that the Courts may assume that Parliament intends legislation to be interpreted in keeping with te Tiriti o Waitangi |Treaty of Waitangi unless Parliament expressly indicates otherwise.56 In the very recent judgment of the Supreme Court in Ellis v R, Glazebrook J observed that in “simple cases where tikanga is relevant and uncontroversial, submissions may suffice”, recognising that expert evidence may not always be required.57
[67] In response to my questions to her, Ms Esera, counsel for Ms Jackson, accepted that tikanga does not necessarily have to be the subject of expert evidence and also that the principles in s 5 of the Act may be understood as consistent with tikanga. Ms Esera also submitted that the Family Court decision itself is not inconsistent with tikanga.
[68] I consider that despite Mr Hopkins not explicitly bringing the fact that he and his tamariki are Māori to the attention of the Family Court, it would be wrong for me not to recognise this fact in considering the appeal. Kara is a tamaiti Māori and this is an important part of her identity. Accordingly, although it was not the Judge’s fault as no express information was before him, the judgment was wrong, based on what is now known, to conclude that the principle in s 5(f) “does not have much bearing”.58 It does have bearing on a decision about the most suitable care arrangement for Kara.59
[69] Accordingly, from a tikanga Māori perspective, it seems to me that the full impact of changing the care arrangement on Kara’s relationship with her sisters, her father and whānau (as well as her hapū and iwi) has not been properly accounted for in the new care arrangement.
55 Ellis v R [2022] NZSC 114 at [19].
56 Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2021] NZSC 127, [2021] 1 NZLR 801 at [8].
57 Ellis v R, above n 68, at [125].
58 Family Court decision, above n 68, at [52]. I do not accept Mr Hopkins’s submission that the Judge should have known he and his tamariki are Māori, based on their appearances and names.
59 I note for the avoidance of doubt that this conclusion does not diminish the contribution to Kara’s identity made through her connection to Ms Jackson and her wider family. I also note Ms Hughes submission that she did not accept that the Family Court takes an entirely Pākehā view and that the Court considers every child’s cultural background. However, I do not consider reverting back to the 2:2:3 arrangement negatively impairs Kara’s ability to connect to her family and cultural identity on her mother’s side of the family.
[70]In any event, I am satisfied that application of the principles in s 5(d), (e) and
(f) to the assessment of Kara’s welfare and best interests requires her spending substantial time with Mr Hopkins and her sisters (therefore providing the potential for time to be spent with her extended family) and this is not met by the current care arrangement. I do not consider then that I need to also reach a final view on the separate application of tikanga to Kara’s care arrangement for the purposes of this judgment.
Do the benefits of Papākowhai school outweigh the above?
[71] The Judge considered that the benefits of attending Papakōwhai school to the welfare and best interests of Kara outweighed the s 5 principles he took into account and thus supported a change in the care arrangement. I turn to consider those benefits.
[72] First, Papakōwhai School appears to be in the local neighbourhood for both parties.60 The Judge focused on the benefit of attending a school in the local community being the maintaining of friendships in her local area and that members of her preschool will also be attending.
[73] While I accept that the friendships formed at school are important to a child’s development, I am not persuaded by the Judge’s suggestion that friendships a child forms when schooling at a distance are unlikely to be maintainable out of school hours due to distance. There are so many factors that may influence how relationships are developed and maintained that I find this to be conjecture rather than a matter of fact. Mr Hopkins and Ms Jackson will have ongoing obligations to promote Kara’s friendships. I do not accept Churton Park School is so far away such that the ability to maintain friendships with children from school is not plausible. Mr Hopkins reports that Churton Park School is approximately 12 kilometres from Ms Jackson’s home and 14 kilometres from his home.
[74] Regarding the fact that friends from Kara’s preschool are going to attend Papakōwhai School, I do not accept that that can outweigh the importance of
60 It was unclear to me on the evidence whether the school is in zone for one or both parties and the parties seem to hold differing views about what constitutes a local neighbourhood. Papakōwhai School can nonetheless be described as local in the broad sense of being in the Papakōwhai/Aotea area, where the parties both live.
strengthening and maintaining her relationships with her sisters and her father, both of which I consider at risk of being significantly impaired by the current arrangement.
[75] I turn then to the distance. While Churton Park School is further away, I do not consider this distance to be particularly significant. It is not apparent from the judgment that the Judge considered whether Ms Jackson, who has more flexibility, could travel the further distance to Churton Park School, which would have allowed the equal care arrangement to continue. In any event, Ms Hughes confirmed that while the judgment refers mainly to concerns about Mr Hopkins having to travel through peak traffic to Papakōwhai School, it would be just the same for Ms Jackson if she was the one picking up Kara from Churton Park School. Although Ms Esera submitted that Ms Jackson did regard the travel as a negative factor for Kara, Ms Hughes submitted that it is a neutral factor. This was reinforced by the psychologist relied on in the Family Court who said in response to a question about whether being caught in peak hour traffic more than Kara needs to be might amount to a pressing routine for her:
I don’t think it’s a matter of great importance. Children often have to wait in traffic with their parents when they are going to school.
[76] I accept Ms Esera’s submission that the new care arrangement results in less time at before and after school care and shorter days for Kara, which is significant for a child of her age. The new care arrangement, along with Kara’s attendance at Papakōwhai School, reduces the need for travel and changeovers.61 While that does reduce the opportunity for Kara to be exposed to acrimony between her parents, I do not accept that this in itself is a sufficient justification for a care arrangement that deprives Mr Hopkins of substantial time caring for Kara.
[77] While it is not disputed that Ms Jackson could adjust her work hours to fit around school hours and would collect Kara from school every day after school, I think it unrealistic to imagine that this will mean she will always spend that time with Kara.62 The opportunities for children to be involved in social or other activities after
61 I do not place significant weight on the point relating to travel, given my earlier discussion.
62 Ms Jackson acknowledged in her evidence in the Family Court that she may need to use afterschool or other care if she has to work late or otherwise “but she has a good support network around her”.
school are extensive and pressures on working parents can arise unexpectedly. I raise this because care must be taken in making comparisons between what parents can offer. It is correct that Mr Hopkins would place Kara in after school care when she is in his care because of his work commitments. But in my view there is no evidence that allows a judgment to be made that such care is better or worse than what might take place after school when Kara is in Ms Jackson’s care.
[78] In any case, I am not convinced that the prospect of longer school days for Kara outweigh the proper application of the s 5 principles, namely the continuity of care, importance of strengthening family relationships and her cultural identity.
[79] Finally, I understand that steps have been taken towards Kara’s enrolment in Papakōwhai School. I also understand that those same steps have not been taken at Churton Park School. As Ms Esera submits, I acknowledge that there will be some disruption in now shifting tack. Ultimately, however, given Kara is yet to start at either school, I consider this disruption to be relatively minimal and overall to be outweighed by the correct application of the s 5 principles.
Conclusion
[80] I am satisfied that, upon the proper application of the s 5 principles, it is in the welfare and best interests of Kara for the 2:2:3 care arrangement to resume. I note that it appears the view of the Judge was that the care arrangements are wedded to the school that Kara attends and vice versa. There was little discussion as to the flexibility of the parties and I do not consider that it is appropriate on the materials before me to consider different (but potentially available) options.63 On the material before me I do not consider that any benefits in Kara attending Papakōwhai School outweigh the resumption of the 2:2:3 arrangement. Under this arrangement, given the constraints on Mr Hopkins, it is therefore also in the welfare and best interests of Kara to attend
63 Mr Hopkins’s evidence was that he would prefer Kara to attend Churton Park School even if the care arrangement was changed, to continue Kara’s connection with her sisters. I also note that the evidence before the Family Court was that Mr Hopkins would contemplate a different care arrangement such as a 2:2:5 model (meaning each parent would have either Monday/Tuesday or Wednesday/Thursday with the weekends alternating) but this was not considered in great detail.
Churton Park School with her sisters. I do not consider that the benefits of attending Papakōwhai school outweigh this position.
Result
[81] The appeal is allowed. The Family Court decision that Kara attend Papakōwhai School and the order that Kara’s care arrangements are to be the proposal put forward by the respondent is quashed. I direct that:
(a)the 2:2:3 care arrangement in place prior to the Family Court decision be reinstated; and
(b)Kara is to attend Churton Park School.
Costs
[82] Leave is reserved to the parties if there is any issue as to costs. If there is, memoranda should be filed by the end of November 2022.
McQueen J
Solicitors:
Family Law Specialists Ltd, Porirua for Respondent
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