Kyle v Bowen

[2016] NZHC 3144

NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN A CT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO 11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER

INFORMATION PLEASE SEE JUSTICE/ABOUT-US/ABOUT-THE-FAMILY-

COURT/LEGISLATION/RESTRICTION-ON-PUBLISHING-JUDGMENTS.

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

CIV-2016-404-001844

[2016] NZHC 3144

BETWEEN

KYLE

Appellant

AND

BOWEN

Respondent

Hearing:	8 December 2016
Appearances:	A E Ashmore for Appellant E N McCabe for Respondent
Judgment:	19 December 2016

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 19 December 2016 at 3.30 pm

pursuant to R 11.5 of the High Court Rules Registrar / Deputy Registrar Date………………………..

KYLE v BOWEN [2016] NZHC 3144 [19 December 2016]

Introduction

[1]                   M and her former partner, A, share the day-to-day care of their five-year-old son, X. M lives in central Auckland and A lives in West Auckland. They cannot agree on where X should go to school. Earlier this year Judge Pidwell held that it was in X’s best interests that he attend B school in central Auckland.1 A wishes to appeal that decision. He needs leave to do so. In this decision I consider both the application for leave to appeal and the substance of appeal together.

[2]                   The proposed grounds of appeal (ordered slightly differently from the way counsel presented them) are that the Judge:

(a)placed insufficient weight on the provisions of s 5(e) and (f) of the Care of Children Act 2004 (CoCA);

(b)incorrectly interpreted the principle in s 5(d);

(c)wrongly treated the fact that A’s brother is a member of the Head Hunter gang as relevant when considering the importance of that man’s daughter attending the school proposed by A;

(d)made findings of fact that were not supported by the evidence;

Leave to appeal

[3]                   Judge Pidwell’s decision was made under s 46R of the Care of Children Act 2004 (CoCA). Under s 143(2) of CoCA an appeal against a decision made under s 46R requires the leave of this Court.

[4]                   The considerations relevant to an application for leave under s 143(2) have been discussed in a number of other decisions of this Court, notably BFW v MPG2 and

1      A v M [2016] NZFC 5985.

2      BFW v MPG [2012] NZHC 1188 at [22].

SFB v JEBH.3 On the one hand it is evident that, by allowing appeals from decisions under r 46R to proceed only with leave, Parliament is signalling the importance of finality in litigation and the fact that not all disputes arising for determination under r 46R will warrant a right of appeal. On the other hand, by allowing leave to be granted for an appeal, Parliament plainly contemplated that there would be some decisions that ought to be amenable to appeal. In previous cases Judges have observed that where the Family Court decision has long-term implications for a child, it is likely that leave will more readily be granted.

[5]                   I accept that where a child is to spend his or her primary school years is a decision that has both medium and long-term implications. The primary school years are very important years in terms of a child’s relationship with his local community and the emergence of his own distinct identity. The choice of primary school may also have longer term implications in terms of that child’s choice of intermediate school and high school. For this reason I grant leave for A to bring his appeal.

[6]                   There is no dispute over the correct approach to the appeal. It is a general appeal, to be conducted in accordance with the approach described by the Supreme Court in Austin Nichols & Co Inc v Stichting Lodestar.4 It is for A to demonstrate an error in Judge Pidwell’s decision. If I am satisfied as to that, A is entitled to a fresh assessment by me. Although I would not be bound to accept any assessment the Family Court Judge made, I do acknowledge that she saw and heard the witnesses and her views may be taken into account to the extent I consider appropriate.

[7]                   The decision to grant leave to appeal means that I will take into account the further evidence that I permitted the parties to adduce for the purposes of the appeal. This evidence was (1) M’s updating affidavit sworn 26 September 2016 together with exhibit D to that affidavit (the other exhibits were excluded) and (2) A’s affidavit sworn 25 October 2016 together with exhibit A to that affidavit.

3      SFB v JEBH [2015] NZHC 2897.

4      Austin Nichols & Co Inc v Stichting Lodestar [2008] 2 NZLR 141, (2007) 18 PRNZ 768 (SC). See also Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [3].

The parties’ circumstances

[8]                   X was born in 2011. His parents separated just over two years later, in late 2013. During their relationship they had lived in West Auckland. In June 2014 M moved to Mount Albert to live with her brother and in early 2016 she moved to central Auckland where she is now living in rented accommodation. She has a permanent part-time job working between 12 and 19 hours a week, depending on whether she has the care of X in any given week.

[9]                   A lives in West Auckland in a family home with his parents and grandmother. He is in permanent full-time employment but has some flexibility in terms of being able to work from home. His parents provide support for him, including in terms of transport for X to and from school.

[10]               Pursuant to a permanent parenting order made in November 2014 M and A share X’s care on a fortnightly basis. In the first week of the fortnightly cycle X is under M’s care on Monday and Tuesday nights and in A’s care Wednesday and Thursday nights, then in M’s care Friday, Saturday and Sunday nights. The arrangement is reversed during week 2 of the cycle.

[11]In relation to schooling the parenting order provided that:

The parties agree that [X] will attend primary school in West Auckland or central Auckland and that the parties will reach agreement between them as [X’s] guardians as to which school is best for [X].

[12]               As the time for X to start school grew closer the parties were unable to agree on which school would be best for him. M proposed B school, which is within walking distance of her rented accommodation and close to her work.5 A considers that X should go to K school, which is closer to his West Auckland and with which there is some family connection. Either school would involve approximately 40 – 50 minutes driving each way by the parent furthest away.6 The Judge regarded the travel time as

5 In the Family Court M also suggested as an alternative another school that was equidistant between her and A’s homes but the Judge did not consider that to be a viable option and it is not pursued on appeal.

6      There was some variation regarding the travel time between the schools but I am satisfied that, taking into account the vagaries of Auckland traffic, it is likely to take at least 40 minutes and possibly longer.

neutral given that, whatever school he attends would involve a level of travel in any given week. For the purposes of the appeal the issue of travel time did not assume much signicance.

[13]               The Judge recorded A’s submission that K school was important for X’s cultural identity in that the school had a kapa haka group with a Ngati Porou tutor (the iwi to which X has links through his whakapapa) and his paternal grandmother is involved in the Matariki celebrations held by the school. A also emphasised the fact that there was a family connection to the school because X’s cousin, who is six months older than him, attends K school and it is likely that his other cousins will also attend in the future.

[14]               The counter-veiling arguments recorded by the Judge were that B school provided a Maori education in terms of the mandated curriculum under the Education Act and have means of extending the Maori culture experience including a kapa haka group. He is making friends amongst the neighbours in his mother’s area who also go to the school.

[15]               On the issues that are significant to the present case the Judge noted as positive that X’s grandmother was involved in K school but did not consider it material in terms of fostering his cultural identity because both schools were able to provide for that. Of the fact that X’s cousin attended K school, she described that as “a two-edged sword” because that child’s father is a patched member of the Head Hunter gang. The Judge then turned to determine the question by reference to the principles in CoCA saying:

When any decision is finely balanced the Courts turns to the guiding principles of the Care of Children Act 2004 to determine what is in the best interests of this child. But even when I turn to those principles they do not provide too much assistance because there is no issue about [X’s] safety, s 5(a); there is no issue that his care, development and upbringing should be the responsibility of his parents, s 5(b), there is no issue that his care, development and upbringing should be facilitated by ongoing consultation and co-operation with his parents, s 5(c), although I acknowledge they are having some difficulties at this point in time in that regard.

There is no issue that he should continue to have a relationship with both of his parents, s 5(e); and that his relationship with his family group or whanau should be preserved and strengthened as there is no suggestion of any current change to the equal sharing. There is no suggestion that his identity should

not be preserved and strengthened by these decisions, s 5(f), and on that issue I consider that his cultural identity in terms of his Maori linkage is preserved and strengthened by the very fact that he is living 50% in his father’s care, immersed in a Maori whanau who are teaching him te rea and tikunga and that his cultural identity will be fostered in that environment irrespective of the school that he attends.

That leaves me with principle 5(d) which is the fact that a child should have continuity in their care, development and upbringing. [X] is at a significant developmental milestone. At the age of 5 his life will change, or should have changed by the fact that he starts school and becomes involved in the education system and is obliged to attend school daily to reach his further developmental milestones in terms of education. …

Ms Surgenor (lawyer for the child) has addressed me on that issue on behalf of [X] and submitted that on balance the continuity of care lies in favour of

[X] attending the [K school] because that is the community where he was raised for the first three years of his life, where his paternal whanau live, where there is security housing in terms of ownership and it is important that that remain. I accept all that.

However, looking forward, what is important for [X] is for his to have continuity in future care. When I consider [M’s] position that she has now secured firm accommodation in a good area, I accept her evidence that it was difficult for her to find that accommodation in her circumstances as a solo parent living without family support in this country. She has found flexible working hours close to her home and close to [B school].  It is important for

[X] that that situation continue. That will provide him with continuity of care.

In my view [M] needs to be supported in every way to ensure that she remains in her current situation, which she has worked hard to get to. I appreciate that she has only been there for a few months but I am satisfied on the evidence before me that there is no suggestion that that is temporary in any way.

[A] has good family support. He is working full-time and his parents are available to assist in every way possible and, therefore, in my view, the burden should be on him to do the hard yards, so to speak, to do the transport and all support should be given to [M] to ensure that her continuity of care is preserved and strengthened. On that basis I consider it to be in [X’s] best interests that he attend [B school].

Grounds of appeal

First ground of appeal: wrongly excluding s 5(e)and (f) from the decision making process

[16]               Mr Ashmore, for A, submitted that the Judge wrongly treated the principles in s 5 as thresholds that could be disregarded if met by existing circumstances, which resulted in the decision being made solely on the basis of s 5(d) (continuity of care).

[17]               The correct approach to the principles identified in s 5 are well established, having been the subject of extensive consideration by the Court of Appeal and the Supreme Court. In Kacem v Bashir Elias CJ observed that:

The s 5 principles are important legislative reminders to decision makers (parents, guardians and courts) of the context in which the paramount consideration of the welfare and best interests of the particular child must be considered. The principles identified are not entirely distinct. Some stress different aspects of themes to be found in other principles and in other provisions of the Act. Within s 5 there are expressions of emphasis as well as identification of matters to be considered.

[18]               As has been emphasised many times, there is no ranking in terms of priority between the five principles. Elias CJ Kacem v Bashir:

… The s 5 principles are not ranked and … no one principle has greater weight than another. There is certainly no basis in the Act for a ranking of principles, although s 5(e) must be fulfilled and so may displace other principles in a particular context …

[19]               Tipping J, giving the majority decision in Kacem v Bashir summarised the approach in the following way:

… The ultimate objective is to determine what outcome will best serve the welfare and best interests of the particular child or children in his, her, or their particular circumstances. In making a determination the s 5 principles must each be examined to see if they are relevant and if they are, must be taken into account along with any other relevant matters. It is self-evident that individual principles may have a greater or lesser significance in the decision making process, depending on the circumstances of individual cases.

[20]               Judge Pidwell correctly identified the principles in s 5(d)(continuity of care), 5(e)(preserving and strengthening family relationships) and 5(f)(preserving and strengthening cultural identity) as relevant in this case. However, it is unclear from the language she used whether she made the decision by taking them all into account in assessing which choice of school would, overall, be in X’s best interests or whether she wrongly gave more weight to principle 5(d). Mr Ashmore argued that, the Judge effectively treated these factors as thresholds which were satisfied by the experience that X enjoyed when in the care of his father and therefore did not require to be taken into account further.

[21] The Judge may not have intended to treat s 5(e) and (f) as not requiring consideration because they were otherwise satisfied by X’s shared care arrangements but I agree with Mr Ashmore that the way she has expressed herself strongly suggests that. This appears particularly from her statement at [40], that X’s currently living arrangements adequately fulfil s (e) and (f) so that there is no need to enquire further into the effect any particular school would have on those aspects, and from the opening words of [41]. I find that the Judge’s expression of the basis for her reasoning suggests that her decision was ultimately made solely on the basis of 5(d) and that was an error. If there were aspects about K school that offered an advantage over B school in terms of the 5(e) and (f) factors then they ought to have been taken into account.

Second ground of appeal: incorrectly interpreting s 5(d)

[22]Section 5(d) provides that:

A child should have continuity in his or her care, development and upbringing.

[23]               Mr Ashmore argued, essentially, that the Judge had wrongly treated the concept of continuity as equivalent to stability and, as a result, had focused on X’s future arrangements rather than past arrangements. He acknowledged that, because the decision regarding schooling would involve a change of some kind, the argument was not one over maintaining status quo but rather recognising the unsettling effect of disruption and to avoid that to the extent possible.

[24]               I agree that the Judge’s discussion regarding s 5(d) seemed very much weighted towards the effect on M of X attending K school and the desirability of M being supported to ensure that she remained in her current work and accommodation arrangements which had been difficult to reach. The fact that a parent has accommodation and employment arrangements in place is, of course, a fact that may be relevant because those things impact directly on the shared care arrangements that affect the child. However, I think that the Judge fell into error in placing such significant weight on M’s needs without any corresponding consideration of whether those arrangements were in X’s best interests.

Third ground of appeal: treating uncle’s gang affiliation as relevant

[25]               One of M’s objections to K school and, conversely, one of the reasons that A promotes K school, is that X’s cousin attends the school. The cousin’s father, A’s brother, is a patched member of the Head Hunter gang. M expressed concern about  X spending too much time with this man’s children. A asserted that his brother, although a gang member, had no criminal convictions and that his children were high achievers at K school.

[26]               Mr Ashmore submitted that the Judge’s statement that these circumstances raised concerns for the Court, without more, was an error because the Judge treated contact with X’s cousin as undesirable solely on the basis of her father’s gang affiliation, thereby negating a factor that the Court would otherwise take into account. Mr Ashmore also pointed out that there is no constraint on the parenting order that would prevent X from spending time with his cousin and her family outside school hours so that there is no logical basis on which to object to him spending time with his cousin during school hours.

[27]               I am not satisfied that there was any error made in relation to this point. The effect of [35] of the Judge’s decision was to treat the fact that A’s brother is a Head Hunter member as neutralising the benefit of his daughter being at the school. The only evidence about A’s brother came from A himself. He asserted that his brother was not a drug user, had no convictions, had never been arrested and does not participate in criminal activity. But he also said in cross-examination and in response to questions from the Court that he did not support his brother’s decision regarding gang life or the doctrine followed by the gang. The natural inference is that even A considers that there aspects of his brother’s choices that are undesirable.

[28]               A also said that his brother was only ever at home with his wife and children or at work and that K’s wife would not permit Head Hunter associates in their home. It is difficult to see how these assertions can all be correct because that would mean that he would not spend any time with the gang of which he is a member. I note that M put in evidence a photo of A’s brother with other patched members of the gang.

[29]               It was plain from an early stage that this was a matter of concern to M and, had A wished, he could easily have put forward affidavit evidence either from his brother or from his parents to support his assertions. Indeed, the issue was known at the time A’s mother (X’s paternal grandmother) swore an affidavit and no comment was made.

[30]               In these circumstances, it was for the Judge to assess the extent to which X’s cousin’s presence at the school would, in all the circumstances, advance X’s relationship with his wider family group. On the one hand X’s cousin’s presence at the school was offered as a positive means of advancing that aspect. On the other, that family connection brought with it potential elements of concern. In the circumstances, I see no error in the Judge’s assessment that, essentially, the family connection with K school through X’s cousin was a neutral factor.

Fourth ground of appeal: findings not supported by the evidence

[31]               Mr Ashmore’s final ground of appeal was that the Judge made factual findings that were not supported by the evidence. He submitted that the Judge’s finding that “all support should be given to [M] to ensure that her continuity of care is preserved and strengthened” was based on an erroneous assumption that travel time to K school would place an undue burden on M. This assumption was wrong because, on the evidence, M’s hours were sufficiently flexible to accommodate the travel time and that the travel time was “a simple 30 minute drive”. It is correct that M’s hours are flexible. I do not accept that the drive is “a simple 30 minute drive” as Mr Ashmore characterises it. The evidence indicated that, in reality, the traffic meant that the drive was probably closer to 40 and possibly 50 minutes.

[32]               In my view, the issue regarding the burden of travel was a legitimate factor to take into account because, even allowing for the flexibility of hours, the travelling is burdensome and, in terms of continuity of care, it is desirable for X that the living arrangements that his mother has put in place can be maintained. Because A has significant family support, including from his father who is prepared to do some of the driving, A’s ability to maintain the continuity of the care arrangements he has in place is much greater.

[33]               I do accept that, in saying that “[M] needs to be supported in every way to ensure she remains in her current situation” could be read as conveying that the factor given most significance in the reasoning process was M’s needs. But read in context, particularly with the concluding comment that “all support should be given to [M] to ensure that her continuity of care is preserved and strengthened” makes it clear that the Judge’s concern was to maintain the continuity of X’s current care arrangements. That is, of course, a proper consideration.

[34]               Mr Ashmore also criticised the Judge’s failure to adequately address the temporary nature of M’s accommodation. It is evident from the trial transcript that A was challenged on the nature of her accommodation. The Judge described the accommodation as “secured firm accommodation” but Mr Ashmore submitted that the evidence as to the real nature of the accommodation was vague and showed no more than some form of rental agreement, it being unclear whether it was fixed or long- term.

[35]               M gave evidence that she had “a permanent flat”. She produced a letter from her landlord in which the landlord said that “[M] was looking for a long-term rental and we were looking for a long-term renter”. The landlord’s letter also referred to the fact that M’s requirements for a flat included that X could have a pet and that he now has two cats. M has now been in that flat since February 2016.

[36]               M was cross-examined about the nature of the tenancy, whether it was fixed term or periodic. It was evident from her answers that she simply did not understand the difference and could only describe it as permanent. The Judge found that M’s living arrangements were “secured firm accommodation in a good area”. I consider that the Judge was entitled to make this finding on the evidence; the nature of the accommodation evident from photographs and the landlord’s description and the general description of the tenure from both M and her landlord provided an adequate evidential basis for that finding. I note, too, that the landlord provided three telephone numbers with the offer that any person who wished to enquire further could make contact. If A had genuine doubts about the nature of the accommodation it would have been a simple matter to have telephoned the landlord to find out more.

Re-assessment

[37]               I have found that the Judge did make errors in her treatment of the principles in s 5 (e) and (f). I therefore turn to re-assess the question of X’s schooling afresh. I do so taking into account two important matters. First, K school has now confirmed that, although A’s address is out of zone, a place would be made available for X to attend if the Court made an order to that effect. Secondly, X has completed two terms at B school and I have an email from that school dated 22 August 2016 (about a month after X started) and a letter (undated but apparently provided in the first week of December 2016) which provide a helpful snapshot regarding X’s time at the school so far.

[38]               The email identifies the (unsurprising) fact that at the beginning of his time at B school X found separation in the morning difficult but noted that he was starting to make friends in his class. The subsequent letter indicates that by the end of the year the difficulties of morning drop-off were beginning to ease and that X was reading well. He is having some challenges in terms of socialising. Specific behaviour was identified as being dealt with by the school, with M and A’s support.

[39]               As the Judge did, I also identify s 5(d), (e) and (f) as the principles that have particular relevance to the issue before me. Looking first at 5(d), the desirability of continuity in X’s care, development and upbringing, the important factors that I see are the settled shared care arrangements that have been in place for some three years, more than half of X’s life. Under this arrangement he has spent half of his time with A and his paternal family in West Auckland. The other half of his time he has spent with M (and for some of that time M’s brother) in Mount Albert and, for the last ten months, in central Auckland. There is no reason to think that these arrangements will alter. M has steady employment and long-term rented accommodation in central Auckland. A has steady employment and long-term accommodation provided by his family in West Auckland.

[40]               In terms of continuity of care, X is settled in his local community in West Auckland. He is out of zone for K school and if he attended that school his classmates may not live within his immediate neighbourhood. On the other hand, because the K

school zone is relatively small, it is to be expected that he would be able to establish friendships with other children at K school. In addition, because X’s extended paternal family live in West Auckland, he will have the opportunity to establish broader connections in his local community.

[41]               In comparison, the major source of potential community connections in central Auckland will be X’s school. Significantly, X has settled into B school that is within walking distance of M’s home and, clearly, has a comfortable lifestyle that includes pets of his own. Remaining at B school would allow him to continue to establish himself in the neighbourhood and make friends locally, which is an important consideration when he is spending half his time in M’s care. For that reason and because he is currently settled into B school, I consider that B school provides the best opportunity for X in terms of overall continuity of care.

[42]               As against this are the factors that A strongly advances under s 5(e) and (f). In terms of s 5(e) A emphasises that X’s relationship with his whanau will be preserved and strengthened by his attending K school. To this end he points to the fact that X’s cousin, who is quite close in age, attends the school and the fact that X’s grandmother has some involvement at the school. I agree that these are relevant factors. However, their significance seems to me more apparent than real. Because X and A share a house with A’s parents, X has close and constant connection with his grandmother whenever he is in A’s care. It is that connection that will provide the real and ongoing strength in the relationship between X and his extended paternal family. Likewise, the fact that his cousin is at the same school provides a connection but there is no suggestion that X will be in the same class as his cousin or likely to be in the same friendship group as his cousin at school. Rather, his closeness to this cousin will be fostered through normal family gatherings. Whilst A’s family connection to K school would contribute to the strength of family relationships more than B school, it is not an especially powerful factor.

[43]               This brings me to the last consideration, the preservation and strengthening of X’s identity. For X, this is focused on his cultural identity. X has a mixed cultural heritage. M’s family is American and X is an American citizen. A’s father is part- Samoan and part-Chinese but A identifies as Maori (presumably as a result of his

mother’s ethnicity). A strongly emphasised his (and X’s) Maori identity and it is evident that this aspect of X’s heritage is nurtured while he is in A’s care. A holds the view that because K school offers much in the way of Maori cultural experience such that would be the better school in terms of fostering A’s Maori cultural identity.

[44]               On the other hand, there was unchallenged evidence from M that B school also recognises and supports Maori culture in its teaching and extra-curricular activities. In terms of preserving and strengthening X’s Maori cultural identity both schools seem to me capable of offering a similar level of knowledge and experience in that regard. K school does, of course, have an advantage in terms of X’s grandmother being involved in Matariki celebrations but I regard that as only a slight advantage.

[45]               One aspect which M raised but appears not to have been addressed by the Judge is the fact that A’s recognition of X’s other cultural identities seems, from the evidence, to have been rather lukewarm. He made it clear that he does not identify with his Samoan or Chinese heritage. It is to be expected that X will absorb that view. A also seemed dismissive about X’s American cultural identity. Although X has regularly visited his family in America, A seemed to place no value on that aspect of his son’s identity. In comparison, M placed some emphasis on the fact that B school was very much a multi-cultural school that, she felt, would recognise and support all aspects of X’s cultural identity.

[46]               Looking at all of the relevant factors, I have reached the same conclusion as Judge Pidwell did. It is important that X maintains and strengthens his wider family relationships on both sides and all aspects of his cultural identity. The circumstances that his paternal family enjoys in terms of an extended family living arrangement and the clearly close relationship he has with his father means that his Maori cultural identity and the relationships with his father’s whanau will be preserved and strengthened regardless of the school he goes to. However, remaining at B school, where he is now settled, provides an opportunity for him to explore and establish other aspects of his cultural identity and to maintain the continuity of the care arrangements that he has enjoyed over the past year and, particularly, the past two terms at his school.

[47]               For these reasons I find that, although there were errors made in the Judge’s approach, the result is the same.

Result

[48]Leave to appeal is granted.

[49]The appeal is dismissed.

[50]This decision may be cited as Kyle v Bowen.

P Courtney J