KJA v MBX
[2016] NZHC 1170
•1 June 2016
NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO
11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE COURT/LEGISLATION/RESTRICTIONS-ON-PUBLICATIONS.
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2016-404-688 [2016] NZHC 1170
UNDER the Care of Children Act 2004 IN THE MATTER
of an appeal against a decision of Her Honour Judge BR Pidwell in the Family Court at Auckland dated 7 March 2016
BETWEEN
KJA Appellant/Applicant
AND
MBX Respondent
Hearing: 31 May 2016 Appearances:
AE Ashmore, appearing on behalf of L Soljan, for appellant/applicant
M Headifen for the respondent
D Amodeo, lawyer for the childJudgment:
1 June 2016
JUDGMENT OF TOOGOOD J
This judgment was delivered by me on 1 June 2016 at
Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
KJA v MBX [2016] NZHC 1170 [1 June 2016]
[1] The appellant father has appealed against a judgment of Judge BR Pidwell in the Family Court delivered on 7 March 2016,1 in which the Judge made a final parenting order providing that the child of the relationship between the appellant and the respondent, now aged 5 years 10 months, will be in the day-to-day care of the mother until he reaches the age of 16 years. The Judge made consequential orders for the father to have significant contact with the child.
[2] At the time of Judge Pidwell’s orders, the child was in the day-to-day care of his father. To accommodate the transition in the principal day-to-day care arrangements, the Judge ordered that the new arrangements should take effect from the beginning of the primary school Term 2 2016, that is, 2 May 2016. The father did not comply with the Court’s orders and it was necessary for a Family Court Judge to issue a warrant to uplift the child from his father’s care. The warrant was enforced by the Police on 15 May 2016.
[3] The grounds of appeal advanced by the appellant in the Notice of Appeal filed on 5 April 2016 are set out as follows:
(a) The learned Judge failed to assess or properly assess the ability of each parent to support the child’s relationship with the other parent and family as required by ss 5(e) and 4 Care of Children Act 2004. In particular, the learned Judge failed to give weight or adequate weight to evidence that raised doubts about the mother’s ability to support the child’s paternal family relationships.
(b)The learned Judge failed to assess or properly assess the impact on the child of the separation from his sibling.2
(c) In her assessment of the child’s views the learned Judge:
(i)Failed to assess or properly assess the influences (undue) on his expressed views particularly in light of the dramatic
1 KJA v MBX [2016] NZFC 1662.
2 The child of the father and his new partner, Ms B.
change in his expressed views and the extreme nature of the stated views (all good vs all bad); and
(ii)Gave undue weight to the historical findings of attachment and ought to have obtained up-to-date psychological evidence of the child’s attachment relationships given the change in circumstances that had occurred for the child since the prior assessment;
(iii)Failed to assess or properly assess alternative explanations for the child’s conduct at changeover and, in the absence of necessary psychological evidence, made a psychological finding about the cause of this behaviour.
(d)The learned Judge failed to assess or properly assess the ability of each parent to provide stability and continuity of care for the child. In particular:
(i)The learned Judge gave undue weight to the mother’s evidence regarding her extended absence from New Zealand despite her evidence being contradicted by a third party witness who was not subject to cross-examination;
(ii)The learned Judge failed to give weight or adequate weight to the evidence of numerous changes to the mother’s housing situation whilst in New Zealand;
(iii)The learned Judge’s finding that the mother is in stable accommodation with good family support fails to take into account relevant evidence, in particular the mother’s sister’s sworn evidence in the previous hearing that she would be returning to live in Poland (agreed fact in the 2016 hearing).
(e) The learned Judge failed to take into account relevant considerations and gave weight to irrelevant considerations when making the assessment of each parent’s ability to consult and co-operate in the care, development and upbringing as required by s 5(c) Care of Children Act 2004.
(f) The learned Judge placed weight on irrelevant considerations including the location of a funeral home below the appellant’s residence.
(g)The learned Judge failed to take into account relevant evidence including the uncontested evidence of the child’s paternal grandparents.
(h)In the assessment pursuant to s 5(f) of the child’s culture and language the learned Judge failed to give weight or adequate weight to the child’s Finnish culture. The learned Judge’s finding that spending more time in the mother’s care would mean he would benefit from being fluent in a second language was not supported by the evidence; instead, the evidence supported a finding guilty the child had maintained fluency despite the extended absence from mother’s care.
(i) The cumulative effect of the above was that the learned Judge’s
assessment of what was in the best interests of the child was wrong.
[4] The father’s principal ground for seeking a stay of orders made by Judge Pidwell is that the appeal would be rendered nugatory if the stay was not granted and the child returned to his primary care. The father argues that, because the new parenting regime has only recently been put in place, it would not be unduly disruptive or contrary to the child’s interests if the status quo at the time of the Family Court hearing was restored so as not to unfairly disadvantage the father when the appeal is heard. Mr Ashmore submitted that, if the appeal is not heard for some time, it would be more difficult for the father to persuade an appellate judge on an
appeal by way of rehearing that the best interests of the child required a reversion to primary care by his father.
[5] Unsurprisingly, the application for a stay is opposed by the mother who says that, although the current parenting arrangements have only recently been put in place, the child is well settled both in his mother’s primary day-to-day care and at his new school. She argues that it would not be in his best interests for the Court to return him to his father’s primary care at this point with the prospect that, if the appeal fails, he will have to suffer yet another change of circumstance, reverting to the primary care of his mother.
[6] The father has also applied for an order under s 133(5) of the Care of Children Act 2004 requesting the preparation and provision of a written psychological report on questions of:
(a) How current arrangements for the child’s care are working for the
child;
(b) The child’s relationship with each party, including, if appropriate, the
child’s attachment to each party;
(c) The child’s relationship with other significant persons in the child’s
life;
(d) The effect or likely effect on the child of each party’s parenting skills;
(e) The effect or likely effect on the child of the parties’ ability or
otherwise to co-operate in the parenting of the child;
(f) The advantages and disadvantages for the chid of the options for the care of the child; and
(g) The child’s views and any undue influences on those views.
[7] That application is also opposed by the mother on the grounds that the appellant cannot satisfy the Court that the information that the psychological report will provide is essential for the proper disposition of the appeal.3
[8] Mr Amodeo, the lawyer for the child, has provided the Court with an up-to- date report in which he says that he met the child at his new school and was told:
(a) that the child liked the school better than his old school; and
(b) that he thought it was better going to that school and being his mother. Mr Amodeo reported also that the principal of the school advised that the child had
settled in well.
[9] The merits of the intended appeal are particularly relevant to the determination of the stay application. They are, as in almost all appeals for determination under this legislation, fact-dependent. However, I do not consider it is necessary to restate the background facts in any detail. In a considered reserved judgment following a two-day hearing, Judge Pidwell determined that the principal factors favouring a restoration of principal day-to-day care to the mother were:
(a) The mother has managed principal care of the child since the parents separated in February 2011, apart from a period of 15 months during which the mother returned to Poland and then returned to New Zealand. The Judge was satisfied that the mother had good reason to return to her homeland. She was not permitted to take the child with her and she returned only so that she could be with the child.
(b) The child’s care arrangements have been unstable since
November 2014 and stability is desirable.
(c) The child has moved from expressing a wish to spend time with each parent to a wish to spend more time with his other mother, an opinion
3 Care of Children Act 2004, s 133(6)(a).
supported by his actions and his responses to changeover between parenting when that occurs. The child’s primary attachment is to the mother.
(d)There is no need for concern about the child’s safety; the parents have managed to maintain a consultative relationship most of the time and that, although they are mistrustful of each other, there is evidence that the positive aspects of their parenting relationship will prevail when litigation is concluded.
(e) There is agreement between the parents that positive relationships with each parent and with other family members should continue.
(f) There is benefit to the child’s continuing to spend a sufficient amount of time with his mother to continue developing fluency in the Polish language.
[10] Crucially, in determining which parenting proposal was preferable as best meeting the child’s interests, the Judge noted that the father works long hours and could not undertake direct responsibility for the child’s care before and after school. The father’s proposal would repose in his new partner principal responsibility for the child’s day-to-day care while he was living in his father’s household. The Judge recorded that she refused to read an affidavit provided by the partner in support of the father’s application for parenting orders, because the partner was unable to make time available to attend court for cross-examination. That may be understandable because she has her own infant to care for as well.
[11] Although the Judge did not say so, I consider a reasonable inference may be drawn, from the fact that the partner appeared to have other priorities, that she was less than fully committed to the considerable responsibilities for the child’s care which the father’s proposals would place on her shoulders.
[12] On the other hand, the mother’s proposals would enable her to have direct personal responsibility for the child’s care most of the time before and after school,
with assistance from her sister. The Judge concluded that in fact the mother’s proposals would provide the father with more opportunities to spend time with the child than if he was awarded principal day-to-day care of the child.
[13] It is also relevant that the Judge was not entirely comfortable with the proposed living arrangements for the child if his father retained principal day-to-day care responsibilities.
[14] The principles to be applied in considering an application for a stay pending the hearing of an appeal under the Care of Children Act 2004 against a parenting order were succinctly summarised by Brewer J in CAM v SRM.4 I respectfully adopt and apply them, and the authorities cited. It is convenient, therefore, to repeat them:
[10] Rule 20.10(2) of the High Court Rules permits the Court to order a stay of proceedings in relation to a decision appealed against.
[11] The basic question, usually, is whether appeal rights would be rendered nugatory if a stay were not entered.5 The balance sought to be struck by the Court in examining the positions of the parties to an application for a stay has to be made in the context of the rights at issue. In cases involving families and the Care of Children Act 2004, the issues to be considered can be taken as set out by Priestley J in Crosby v Crosby,6 as ratified by the Court of Appeal in WAH v WTW.7 The principles are:
(a) The overriding consideration is the welfare of the children;
(b) Whether or not the appeal will be rendered nugatory if a stay is refused will be a highly relevant consideration;
(c) The arguments in favour of a stay will be stronger if a decision under appeal has the effect of totally changing the status quo;
(d) The Court will have regard to any evidence of lack of bona fides in the filing of an appeal and the application for stay as a consequence;
(e) Each case will turn on its facts. The length of time before the appeal is likely to be heard, the current circumstances of the parties and the children, and the consequences of delay pending the hearing of the appeal will be relevant.
[12] I accept [the lawyer for the children’s] submission that in addition the views of the children concerned can have relevance….
4 CAM v SRM HC AK CIV-2012-404-6774 [18 December 2012, at [10]-[12].
5 Philip Morris (NZ) Ltd v Liggett & Myers Tobacco Co (NZ) Ltd [1977] 2 NZLR 41 (CA).
6 Crosby v Crosby HC Auckland AP124-SW01, 21 December 2001.
7 WAH v WTW [2010] NZCA 344.
[15] It is clear to me, as it was to the Family Court Judge, that both parents love their child and they both want what is best for him. Because they cannot agree what is best, the Court must determine that. Although Mr Ashmore sought to argue that it was not clear what is in the child’s best interests because the new arrangements have only just been put in place, I am unable to agree. On the basis of the evidence, Judge Pidwell had a clear view that the mother’s proposal represented the best of the two options, not least because, for reasons which are understandable, the father could not devote as much of his time to the direct day-to-day care of the child as can the mother. There is no reason to doubt that the child’s preferences as expressed to Mr Amodeo, are genuinely held and although the child is not yet six years old, his views are both relevant and important.
[16] In a case such as this where there have been several changes in the parenting arrangements over the child’s relatively short life, stability becomes a particularly important consideration.
[17] Having regard to the carefully expressed view of the Family Court Judge, I am firmly of the view that it is important that finality be achieved. The father is entitled to exercise his right of appeal and the Court should facilitate that. In that regard, I am by no means persuaded that it is essential that a psychologist’s report should be obtained. There is nothing in the evidence to suggest that the child has suffered any psychological disturbance, and the matters which the father seeks to have addressed by way of a psychological report are matters which the Court is capable of addressing on the basis of the material available to the District Court and on appeal. No benefit would be achieved by directing a psychologist to investigate those matters and the disadvantage of such an appointment would be continued delay in getting the matter on for hearing. The Court can accommodate a relatively early fixture for a half-day on 11 August 2016. The appointment of a psychologist is likely to push out a hearing until sometime in October.
[18] Having regard to the carefully expressed views of the Family Court Judge, and making my own assessment of the decision in the light of the grounds of appeal, I do not rate the father’s prospects of success as high. Like so many breadwinners in disputes of this kind, the father’s position is compromised by the need to work to
support his family. He is by no means to be criticised but the inevitable consequence is that the mother is best placed to have the primary care of the child until the appeal is disposed of.
[19] The application for the appointment of a psychologist to report under s 133(5) of the Act is dismissed.
[20] I dismiss the application for a stay.
[21] This appeal is set down for a half-day hearing on Thursday, 11 August 2016. In accordance with the discussions between counsel at the hearing, the appellant is to file and serve his submissions by 21 July 2016. The respondent’s submissions shall be filed and served by 28 July 2016. Submissions of Mr Amodeo as lawyer for the child, including an update report if he considers that necessary, shall be filed and served by 4 August 2016.
[22] Mr Ashmore has said everything that could possibly be said on behalf of the appellant.
[23] The respondent is entitled to costs and disbursements which shall be fixed on a Category 2B basis. If there is any dispute between the parties as to the quantum they may file memoranda.
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Toogood J
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