Ives v Reza

[2018] NZHC 2318

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.

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CIV-2018-443-6

[2018] NZHC 2318

IN THE MATTER OF

the Care of Children Act 2004

BETWEEN

IVES

Appellant

AND

REZA

Respondent

Hearing:	27 August 2018
Appearances:	A R H Laurenson and N E W Walden for the Appellant C A Gelston for the Respondent
Judgment:	4 September 2018

JUDGMENT OF COOKE J

[1]    Mr Ives1 appeals against the decision of the Family Court determining the terms and conditions of a final parenting order. That order involved equal periods of care of the parties’ two children over holiday periods, but more limited care by Mr Ives during school term time. Mr Ives says that there should be equal care arrangements over term time as well.

1      Fictitious names have been adopted for the parties to protect the identities of the children. The citations for the District Court decisions have been edited accordingly.

IVES v REZA [2018] NZHC 2318 [4 September 2018]

Background

[2]    The  background  is  described  in  the  judgment  of  Judge  Barkle  dated   15 December 20172 and an earlier judgment of his Honour dated 3 April 2017, which he indicated should be read to provide a full understanding of how matters concerning the parties and their children had unfolded.3

[3]    The parties have two children, a daughter who is presently ten, and a son who is presently eight. The parties’ relationship began some time in 2006. They separated on 25 April 2015 when Ms Reza moved out of the family home. The children remained living with Mr Ives, although Ms Reza filed an application with the Family Court on 14 May 2015 asking the Court to address the care arrangements.

[4]    On 8 June 2015, Judge Courtney put in place interim care and contact arrangements with the children spending nine nights with Mr Ives and five nights with Ms Reza, with school holidays on a week about basis. His Honour raised an issue at this stage that has become one of ongoing significance. He indicated that the children should not be involved in any adult issues, and the issues between Mr Ives and      Ms Reza should be kept between them as the children had enough to deal with without being burdened by them.

[5]    Unfortunately, that is not  how  matters  developed.  On  11 January  2016, Ms Reza made an application for interim parenting and temporary protection orders. These were granted by Judge Otene, with her Honour also ordering that Mr Ives’ contact with the children was to be supervised. Judge Barkle heard evidence about the events that led to these orders at the hearing leading up to his 3 April 2017 judgment.  He accepted that domestic violence had occurred, and he recorded that  Mr Ives’ counsel had accepted that this was the case. These events can broadly be described as intimidating behaviour, involving threats of violence, abusive language and physically intimidating conduct taking place in the presence of the children. Part of the explanation for Mr Ives’ behaviour was that Ms Reza had formed a new

2      [Reza] v [Ives] [2017] NZFC 9875.

3      [Reza] v [Ives] [2017] NZFC 2495.

relationship with another man, which Mr Ives found very difficult to deal with. I note that by the time of the hearing before this Court Ms Reza has married her new partner.

[6]    In addition to establishing the interim care arrangements in June 2015, the Court commissioned a psychological report under s 133 of the Care of Children Act 2004 from Mr Patrick Coyle, whose first report was later provided in May 2016. In the meantime, in February 2016, weekly contact of two hours under supervision took place. It was reduced to fortnightly contact of two hours in August 2016. In October 2016, the supervising company said it was no longer prepared to supervise the contact, and Mr Ives was unable to see his children.

[7]    The matter then came before Judge Barkle for the first time on 29–31 March 2017 where the full background was traversed. By the end of the hearing on 31 March 2017 the parties agreed on a way forward allowing Mr Ives to recommence contact when Mr Coyle indicated he was ready to do so.

[8]    In Judge Barkle’s judgment of 3 April 2017, his Honour put in place interim parenting orders “… in a manner that does not undermine the more positive and forward looking position that had been arrived at by the parties at the conclusion of that hearing”.4 Under these orders Ms Reza would have day to day care of the children, with Mr Ives having supervised contact with the children under general supervision, which  would  involve  Mr  Coyle,  counsel  for  the  child  (Ms L  Manning)  and  Mr Sylvester, a counsellor that Mr Ives was required to see as a condition the arrangements.

[9]    Judge Barkle also made a final protection order in favour of Ms Reza. He summarised the reasons for the latter orders in the following terms:5

In summary since separation and despite the temporary protection order being in place there has been:

(a)Serious and ongoing psychological violence by Mr [Ives] towards Ms [Reza].

(b)That psychological violence has often taken place with the children being present.

4      [Reza] v [Ives], above n 3, at [14].

5 At [63].

(c)Confrontational behaviour with the employees of the independent contact supervisor Linking Kin Limited. Sometimes that has occurred in the presence of the children.

(d)As far as Mr Coyle was concerned no discernible move in Mr [Ives’] behaviour or thought patters had taken place.

(e)No insight or understanding had been shown by Mr [Ives] until giving evidence last Friday of the impact  of  his  domestic  violence  on  Ms [Reza] and the children.

(f)A number of alleged breaches of the temporary protection order have been noted. The latest and most serious was seeing the children at their school in February 2017.

(g)There was non-completion of the required domestic violence programme.

[10]   The parties came back before Judge Barkle on 1 December 2017. By judgment dated 15 December, his Honour dealt with the final care and contact arrangements. This is the judgment that is now under appeal. At that stage, the Judge had:

(a)a report from Mr Sylvester in relation to the contact Mr Ives had with his children under his supervision, which was positive concerning   Mr Ives’ contact. This included advice that he was able to put the best interests of the children first, and that there was a deep emotional connection and secure attachment between the children and their father;

(b)reports from counsel for the child, Ms Manning, confirming the desirability of unsupervised contact, as well as further advice from  Ms Manning on the terms of the final parenting orders; and

(c)further reports from Mr Coyle on the issues that arose, including his views relevant to the final parenting order, which I will deal with in more detail below.

[11]   The evidence of Mr Coyle, and the views of Ms Manning, can be said to have provided support for Mr Ives to obtain more extensive care of the children.

[12]   The breakdown of the relationship between the parties means that what was proposed is what is referred to as a parallel parenting arrangement – that is where the

children have two separate parenting arrangements with minimal interactions between the parents. Following a detailed assessment of the various issues emerging and the stance taken by the parties, the Judge reached the conclusion that there should be week-about sharing of the care of the children during school term and summer holidays, but he determined that during the term Mr Ives should have more limited care of the children. The terms of the order on this issue were as follows:6

Term Time

(a)In week 1, the children will be in the care of Mr [Ives] from Wednesday after school until Friday before school.

(b)In week 2, the children will be in the care of Mr [Ives] from Thursday after school until Monday before school.

(c)At all other times, the children will be in the care of Ms [Reza].

[13]   Counsel explained to me that these arrangements roll over for every fortnight during term time. There are other detailed terms and conditions set out by his Honour, but they are not challenged on appeal.

[14]   The key reasons for these arrangements were summarised by his Honour in the following way:

[76]      I do not intend to provide for a seven day, shared care arrangement during term time as sought by Mr [Ives]. The reasons for that are as follows:

1.     such length of time is, as Mr Coyle suggested in evidence, a stretch for the children, especially [the son], away from both parents; and

2.     it does not allow for the primary caregiving role that has been successfully undertaken by Ms [Reza] since January 2016, as a consequence of Mr [Ives’] conduct, to be given sufficient recognition; and

3.     I am not certain that Mr [Ives] has made the real and genuine progress in his behaviour, beliefs and parenting attitudes, that would support his desired proposal being put in place. My reasons for that conclusion are set out at paras [53] to [64].

[77]      But for Ms [Reza] remaining supportive of an 8/6 split of fortnightly term time care, Mr Coyle’s evidence that shared care on a parallel parenting basis was achievable, and Ms Manning’s submission on behalf of the children that either a 5/5/2/2 or 8/6 division should be put in place, I may well have

6 At [80].

provided for the children to spend less time in their father’s care than is the outcome.

Approach on appeal

[15]    The statutory provisions relevant to the decisions to be made here are set out in the Care of Children Act. Under s 4, the child’s welfare and best interests in his or her particular circumstances must be the first and paramount consideration, which are to be assessed in the manner set out in ss 4 and 5. Considerations relevant to considering the best interests of the child are set out in s 5(a)–(f), and under s 6 the child must be given a reasonable opportunity to express views on the matters affecting him or her, and those views must be taken into account.

[16]    There is no material difference between the parties on the appropriate approach on appeal. It is as set out in Austin, Nichols & Co Inc v Stichting Lodestar.7 Its application to decisions such as the present was described by the Supreme Court in Kacem v Bashir in the following terms:8

[31]      The Court of Appeal discussed the application of the decision of this Court in Austin, Nichols & Co Inc v Stichting Lodestar to the present kind of appeal. The Court correctly observed that on a general appeal of the present kind the appellate court has the responsibility of considering the merits of the case afresh. The weight it gives to the reasoning of the court or courts below is a matter for the appellate court’s assessment. We should add here that if the appellate court admits further evidence, that evidence will necessarily require de novo assessment and consideration of how it affects the correctness of the decision under appeal. The Court of Appeal was right to say that Courtney J had rather overstated the effect of Austin, Nichols when she indicated she should approach the appeal to the High Court “uninfluenced” by the reasoning of the Family Court. The High Court was required to reach its own conclusion, but this did not imply that it should disregard the Family Court’s decision. What, if any, influence the Family Court’s reasoning should have was for the High Court’s assessment.

[32]      But, for present purposes, the important point arising from Austin, Nichols is that those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion involves an assessment of fact and degree and entails a value judgment. In this context a general appeal is to be distinguished from an appeal against a decision made in the exercise of a discretion. In that kind of case the criteria for a successful appeal are stricter: (1) error of law or principle; (2) taking account of irrelevant considerations; (3) failing to take account of a relevant consideration; or (4) the decision is plainly wrong. The distinction

7      Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.

8      Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 per Blanchard, Tipping and McGrath JJ (Elias CJ and William Young J dissenting in part, but not on these matters) (footnotes omitted).

between a general appeal and an appeal from a discretion is not altogether easy to describe in the abstract. But the fact that the case involves factual evaluation and a value judgment does not of itself mean the decision is discretionary. In any event, as the Court of Appeal correctly said, the assessment of what was in the best interests of the children in the present case did not involve an appeal from a discretionary decision. The decision of the High Court was a matter of assessment and judgment not discretion, and so was that of the Family Court.

[17]   Before me counsel for both of the parties made reference to the Family Court exercising a discretion in the present case. The above passage indicates that this is not a correct characterisation of the role of the Family Court. The Court is involved in evaluating the circumstances, and forming a judgment in the context of reasonably detailed statutory requirements. As the Supreme Court said, with reference to Professor Henaghan’s view that the application of ss 4 and 5 involved Judges using their discretion, which had led to a lack of clarify and predictability:9

[35]  These and other concerns identified by the Professor are inherent in   the exercise in which judges administering ss 4 and 5 of the Act are involved. Lack of predictability, particularly in difficult or marginal cases, is inevitable and the so-called wide discretion given to judges is the corollary of the need for individualised attention to be given to each case. As we have seen, the court is not in fact exercising a 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 assessments which the courts 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 judgment as to what course of action will best reflect the welfare and best interests of the children. While that 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.

[18]Against that background three grounds of appeal were advanced:

(a)That the Family Court erred when taking into account the views of the children. These were in favour of shared care on a week-about basis during term time as well as holidays. This was said to be a clear case where the children’s views should have been decisive, and the decision of the Judge not to place significant weight on these views was wrong.

9      Per Blanchard, Tipping and McGrath JJ (footnote omitted).

(b)Second it was said that the Court erred by giving insufficient weight to the views of Mr Coyle who was ultimately supportive of shared care in term time. The Judge erred in not following Mr Coyle’s view on the best interests of the children.

(c)Finally, it was argued that in all the facts and circumstances of the case the Judge was wrong not to make such an order.

[19]   In many respects, the last of these grounds may be the key ground of appeal, as the other two grounds really address considerations in the overall evaluation exercise. If an error in the first or second ground of appeal was identified, it would still be necessary to go on to consider the ultimate outcome of the case. This requires a consideration of all the circumstances. Ultimately this Court needs to assess the case for itself and determine whether it accepts that the Family Court was wrong in the orders that it made.

[20]   I will nevertheless address the three grounds of appeal separately, albeit on the basis that the third ground of appeal will involve assessing all of the relevant considerations.

Views of the children

[21]   Mr Laurenson emphasised that both children had expressed the view that they wanted a 50:50 care arrangement. It was argued that the Court had fallen into error by not giving this substantial weight. Mr Laurenson put it in the following way in the written submissions:

The commentators of Westlaw NZ at paragraph CC6.37 discuss the weight that should be given to children’s views. The commentators observed that if a child can articulate the reasons for the views they hold and those reasons appear to be based on their own personal experiences and the views are likely to be accorded greater weight. It is submitted that is and should be the position adopted in this case. Furthermore they observe that if views expressed by a young child are obviously second-hand views prompted or influenced by a party or some other person they will be given less weight although they must still be taken into account. Again it is submitted that there was no evidence that there was any overt pressure on the children at least from Mr [Ives] in expressing these views. These are the views and wishes that the children have always had on their own. Even if there is some pressure on the children the commenters agree that the views still deserve respect.

It is submitted that this is a clear case where the children's views should be decisive. The learned Judge specifically chose not to place significant weight on the children's views, and the decision not to is wrong.

[22]   The views of the  children  were addressed at [65]–[69] of  Judge  Barkle’s  15 December judgment. His Honour explained the reasons why he was not prepared to place significant weight on the views of the children. Having reviewed the reasons set out for this view by the Judge, and the underlying evidence, I agree with this assessment.

[23]   As Mr Coyle said in evidence, the age and maturity of the children counts against their views being given significant weight. Mr Coyle was asked:

Q.  [The daughter] is nine years six months now. How much weight - what  is her level of maturity to understand what she is saying?

A. As a child of that age, she is not making an adult representation of affairs in that it is a consideration of there are pros and cons and weightings and all that sort of stuff. She is articulating a view, I am sure it is a held view, but it is not, given her age, it is not a considered, weighted view. She is not running through all the pros and cons of both possibilities.

Q. Were you able to detect any influences acting on the children in preparing your reports?

A. I believe a primary driver is to be fair, in their words, to their father which is a concept that children of their age are kind of familiar with, from about five on, they get this idea about what’s fair and want everything to be nice and even and fair. So it is a child conceptualisation of how things should be but I believe that they are, having their father in mind, they’re wanting it to be fair for their father as a primary motivation.

[24]   The same point was made with even more substance with respect to the son who is younger. I accept the accuracy of this assessment.

[25]   This point is reflected in how the children expressed their views. In the memorandum of counsel for the child dated 16 November 2017 the children’s views were described in the following way.

When I asked [the daughter] about the time she spent in each parent’s home, [she] told me that she wanted 50/50 care. One week in each house because she is sticking up for Dad and because that is what Dad wants, that’s what she wants. [She] feels that if she spent seven days in her Mum’s care and then seven days in her Dad’s care she will be able to see her friends more and be able to do more girly things at Dad’s house. [She] also wants to have weekend

time with her Dad. [She] feels that if she spends a week at her father’s home she will have more time available to spend with her friends after school.

…

[The son] ended our meeting by saying that he has liked the two nights but it’s not fair on his Dad, fair to his Dad would be spending the same amount of time with Mum and Dad.

[26]   The son’s views represent the views of his father. The factor mentioned first by the daughter is also fairness to her father. That is significant, and consistent with Mr Coyle’s evidence, although I accept that the balance of the recorded views addressed things from her own perspective.

[27]   This is also related the ongoing concern that has been present throughout these events – that the children have become involved in the disputes between their parents, including in relation to the parenting arrangements. It is quite clear that Mr Ives has made considerable progress in his approach to these issues. But it is also apparent that the children are well aware that their father views the current arrangements as unfair, and that he is seeking a 50:50 arrangement. The Judge recorded that it was apparent from Mr Ives’ cross-examination that he had been discussing with the children what they wanted in terms of outcome, and that the children were accordingly appraised of what their father wanted. When challenged in cross-examination that there was no evidence of any overt pressure from Mr Ives, Mr Coyle responded that repeating verbal statements made by Mr Ives came pretty close to evidence of overt pressure, and that the children’s views were very “father referenced”.

[28]   The precise details of the care and contact arrangements, and the best interests of the children, are matters involving a degree of subtlety and complexity. They involved an appreciation of the relevance and impact of the past events, as well as the likely impact of the arrangements for the future. The ultimate terms and conditions arrived at were very carefully tailored by the Court in light of the relevant considerations. These features underscore the point made by Mr Coyle that children aged ten and eight could not realistically be expected to fully comprehend and assess the factors involved. Their views reflected their love and support for their father at a more fundamental level. They had been made aware of what their father wants. The fact that Mr Ives has developed a strong and loving relationship with his children is to

be commended. But I agree with the Judge that the views of the children do not carry significant weight when addressing the more sophisticated questions relevant to the details of the care and access arrangements in this case.

[29]   The Judge recognised these issues, and made reference to the judgment of this Court in Brown v Argyll where similar observations about the weight to be given to the views of the child were made.10 So I do not accept that there was any error in the manner in which the Judge assessed the relevance of the views of the children.

Mr Coyle’s assessment

[30]   The second ground of appeal focuses on the views of Mr Coyle. He has been involved with the parties and their children for some time and has provided a series of reports in terms of the position. It was argued that the Court had erred in failing to adopt a 50:50 arrangement as that had been supported by Mr Coyle. Mr Coyle’s views were summarised in the following way in Mr Laurenson’s written submissions:

There is no evidence of advert pressure from Mr [Ives] on the children. The children’s views were just as likely to be influenced by their mother.

The Respondent still holds a “jaundiced” view of Mr [Ives] and this is not helpful. This was a concern for Mr Coyle.

Mr [Ives] had made substantial and profound change. The change was fundamental.

Mr [Ives’] changes were genuine.

Mr Coyle could not identify any reasons not to adopt a 50:50 shared care arrangement.

Mr [Ives] was now able to leave his “baggage at the door” which went a long way to making a 50:50 care arrangement now available to the Court.

The parties were able now to shield the children from any conflict. They had adopted an appropriate approach of parallel parenting and thus the best approach for these children was to move toward a more parallel parenting structure. The parties had gone someway to achieving that themselves over the months between March 2017 and November 2018.

[31]Mr Laurenson further submitted:

10     Brown v Argyll [2006] NZFLR 705 (HC) at [49].

Mr Coyle’s evidence was clear that any outcome needed to end any dynamic that there is something to be concerned about Mr [Ives] that it is important to no longer sustain a dynamic that the children could be aware of and be disruptive to them.

Mr Coyle was clear that in balancing the best interests of the children it was better to draw a line in the sand, accept that both parents had moved on and that the parents are well able to parallel parent. They should have equal time and get on with it. That is the better approach.

[32]   In addressing those matters in oral submissions, Ms Walden emphasised the long-standing involvement Mr Coyle had with the matter, and accordingly the weight that should be given to his views.

[33]   With respect,  I  do  not  think  the  above  summary  completely  captures  Mr Coyle’s approach. It is quite correct that Mr Coyle recognised that there had been a fundamental change in Mr Ives’ approach, and that it was much more positive in terms of the appropriateness of the relationships that are necessary for the parenting of the children. That led to Mr Coyle providing his view that changing the arrangements so that the children spent more time under Mr Ives’ care was open to the Court. In his most recent report of 3 November 2017 he put the matter in the following way:

There appears little to impede a development of the children having more time with their father, even up to and including a 50:50 arrangement.

[34]   Under cross-examination Mr Coyle was asked whether he was suggesting there was little if anything preventing the shift to 50:50 care, he replied “largely yes”, and he was further asked:

Q. And you’re saying that anything up to a 50/50 care arrangement is available to the Court today?

A. Ah, yes, obviously there is other factors to consider in making that call, but to me it just seems a clear potential.

[35]   It is true that later in the cross-examination he responded in the following way to questions:

Q. So, balancing the best interests of the children, it is better that we draw a line in the sand, both parents have moved on, both parents can parallel parent. They will have equal time and they will get on with it. That is probably a better approach, isn’t it?

A.    That is my opinion. I may well be wrong, but –

Q.    But it’s, you will have to agree, an informed opinion, isn’t it?

A.    I hope so.

[36]   This last answer by itself might suggest that Mr Coyle thought a complete 50:50 arrangement was the preferable approach. But looked at as a whole it seems to me that Mr Coyle was maintaining the appropriate distinction between his views as an expert psychologist provided for the benefit of the Court, and the final decision that needed to be made by the Court. He recognised that the final question was ultimately for the Court – hence the reference to the “other factors to consider” in his earlier answer.

[37]   It is that distinction that is important when responding to this ground of appeal. It is ultimately for the Court to make the decision in accordance with the statutory criteria and the circumstances of the case. The decision is not made by the psychologist. The psychologist’s opinions, which are in his or her area of expertise, are provided for the Court’s assistance. Properly analysed, Mr Coyle was doing no more than saying that a range of outcomes involving greater parenting by Mr Ives were open to the Court from his expert psychological point of view. On his evidence, the outcome actually reached by the Family Court was also one that was open. In my view, the result actually reached is not inconsistent with Mr Coyle’s evidence.

[38]   It is clear the Judge gave significant weight to Mr Coyle’s views. Indeed, he indicated he would have reached a different view but for those views, and those held by counsel for the child and Ms Reza.11 It is plain he has given Mr Coyle’s views significant weight. But I agree with the Judge that there were clearly other factors to consider when making the final decision. For that reason, I do not accept that there has been an error by failure to implement a 50:50 arrangement on the basis of one of Mr Coyle’s answers in cross-examination. As a stand-alone point, I reject this ground of appeal.

11     [Reza] v [Ives], above n 2, at [77].

[39]   As indicated, the assessment of the first two grounds of appeal really lead to the most important ground, which is whether the Family Court was wrong in the overall assessment that it made.

Was the Family Court wrong?

[40]   As indicated the real question is whether the Family Court was wrong in deciding on the terms and conditions of the final parenting order. Consistent with the approach expressed in Austin, Nichols & Co Inc and in Kacem v Bashir, this Court can review the decision reached making its own assessment of the relevant matters, according such influence to the Family Court’s reasoning as it thinks appropriate.12

[41]   As is apparent from the factual background of the case, the evidence referred to above concerning the views of the children, and Mr Coyle’s evidence that there are clearly additional factors of significance in the present case. These were also articulated by counsel for the child who referred to the fraught relationship between the parties, and who expressed a concern about indirect contact between the children and the non-care parent. Counsel indicated that a 6/8 division of care over each fortnight was an option for the Court against that background.

[42]   The Judge dealt with these issues in two places in the judgment – the discussion at [72]–[78], and the earlier analysis arising from Mr Ives’ evidence at [53]–[64]. Having reviewed the reasons set out by the Judge in those paragraphs, and the factors emphasised by Ms Gelston in her submissions, I am not persuaded that the final parenting orders decided upon by the Family Court were wrong.

[43]   His Honour identified a number of matters of concern, and the unease he felt about the evidence of Mr Ives both in terms of its content and how it was given. The first factor mentioned is that Mr Ives had not completed the mandated non-violence programme as a result of the final protection order on 3 April 2017. The Judge did not accept Mr Ives’ evidence that he did not understand what was required, but rather concluded that Mr Ives did not accept the utility of the programme. His Honour

12     Austin, Nichols & Co Inc, above n 7; and Kacem v Bashir, above n 8.

acknowledged that there had been no service of the protection order, but concluded that he had no doubt that Mr Ives understood what was required.

[44]   The Judge also indicated that Mr Ives had struggled in his evidence to accept responsibility for his previous poor actions, or articulate how they had impacted detrimentally on the children. In my view that demonstrates that, whilst Mr Ives has made considerable progress, there remain lingering concerns. As Judge Courtney concluded some three years ago there was a problem with the children being involved in adult issues. The lingering concerns are perhaps reflected in the fact that the children were aware of what Mr Ives sought by way of parenting arrangements.

[45]   Reference has also been made to certain incidents during Mr Ives’ care. By themselves they might not have much significance. There is a reference to the children having contact with an associate of Mr Ives in breach of the conditions of the parenting orders, an event where the daughter did not attend the second night of a school production, and also to the children returning to the care of Ms Reza in a very tired state. Mr Ives has explanations for all three of these matters, and I accept that they should not be blown out of proportion. But they do add some weight to the feelings of unease that the Family Court Judge expressed.

[46]   Most importantly, however, is that the background of family violence cannot be ignored. The concern is that the lingering effects of the quite inappropriate prior behaviour can still be identified in the current circumstances.

[47]   None of this should be taken to unduly qualify the progress Mr Ives has made. He is to be commended, and encouraged for taking the path that he has followed. And it may well be that further progress can be made.

[48]   Under s 4(1) of the Care of Children Act, the welfare and best interests of the children are the first and paramount consideration. The Judge identified that Ms Reza should continue to have a more prominent role in dealing with the day to day care of the children during term time. I do not accept the submission that this involves a form of punishment of Mr Ives. Rather it reflects the strengths of each of the parents, leading to parenting orders reflecting the overall best interests of the children.

Ms Reza has the ability to deal appropriately with the day to day care of the children during term time. But it is recognised that Mr Ives plays an extremely valuable role in this parenting. The terms of the order allow him to see the children every week to continue to develop his relationship with them. The specific terms of that order – with him having care from Wednesday after school until Friday in the first week, and then from Thursday after school until Monday before school in the second week – have been specifically tailored with the activities that the children engage in with Mr Ives in mind, including karate after school on Thursdays. The terms and conditions have also been tailored in light of the view that having more than seven days away from either parent is not appropriate given the fundamental importance of their relationships with each parent. Structuring the care arrangements in this way was intended to address the best interests of the children, and the strengths that each parent can bring to bear on their upbringing. It also is significant that the children will spend time on  a 50:50 basis with each of their parents in all school holidays, with other provision made for special days and occasions.

[49]   I can understand at one level why Mr Ives objects to this. But in the end, it is not the quantity of time that he spends with his children that is key, but the quality of it. The arrangements have been structured so that Mr Ives has quality time with both of his children, and will continue to have a significant role in their care and upbringing. To my mind these orders are in the best interests of the children. They have been appropriately tailored in light of the views of both parents, the views of counsel for the child, and the expert opinion of Mr Coyle. I agree with them.

[50]   Ms Walden emphasised that these were final parenting orders, and that the ability for them to change later was limited as there would need to be a change in circumstances before final parenting orders are varied. I accept that a Court is unlikely to alter the terms of a final parenting order under s 56 in the absence of such a change.13 In my view it is important that the parties now have a period of settled arrangements without the stresses that continued litigation of issues in the Family Court can bring. Having said that it needs to be remembered by both parties that the orders can be varied. For example, if there are any concerns about how matters are operating, the

13     See U Patel and S van Bohemen (eds) Brookers Family Law (looseleaf ed, Thomson Reuters) at [CC 56.05(1)].

Court could vary the orders. It is also possible that as the children get older matters could be reassessed. I would not think that that would be appropriate to consider that until the son is at least ten himself, and even then, the more appropriate course would be for the parties to perhaps reach some agreed variation of the orders after the passage of time rather from further proceedings being involved.14 I do not want to promote the potential for the orders being varied precisely because further proceedings may create a potentially disruptive atmosphere. But it is always possible that the orders can be changed with the fullness of time, or if there are other changes in circumstances.

[51]   In any event I am not persuaded that the Family Court Judge was wrong to reach the decision that he did.

Result

[52]For the above reasons, the appeal is dismissed.

[53]   As to costs, I understand that Mr Ives is legally aided. But if there are any issues as to costs the respondent may file a memorandum within 14 days of the release of this judgment, with any response seven days thereafter.

Cooke J

Solicitors:

Govett Quilliam, New Plymouth for the appellant Legal Solutions, New Plymouth for the respondent

14     Care of Children Act 2004, s 57.