L v B HC Ak CIV 2009-404-005482
[2010] NZHC 53
•22 January 2010
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
IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
CIV 2009-404-005482
IN THE MATTER OF the Care of Children Act 2004
BETWEEN L Appellant
ANDB Respondent
Hearing: 9 December 2009
Counsel: R J Collis and A C Wright for the appellant
A Ashmore and R Gregory for the respondent
J Hunter for the child
Judgment: 22 January 2010
REASONS FOR JUDGMENT OF POTTER J
Solicitors: A C Wright, P O Box 99172, Newmarket, Auckland 1149
A Ashmore, P O Box 56210, Dominion Road, Auckland 1446
J Hunter, P O Box 4385, Shortland Street, Auckland 1140
L V B HC AK CIV 2009-404-005482 22 January 2010
TABLE OF CONTENTS
Introduction [1] Issues on appeal [5] Factual background [6] Approach on appeal [10] The judgment appealed [13] The law [20] Alleged errors of law [31] Alleged errors of fact [64]
Alleged findings with no evidentiary basis/
Against the weight of evidence [73] Discussion and conclusions [96]
Introduction
[1] M is the only child of the appellant and the respondent. He is aged six years having been born on 25 November 2003. M’s parents have separated but both are committed to the care and wellbeing of M and want to continue to be involved in his development and upbringing.
[2] On 5 August 2009 in the Family Court at Auckland Judge Burns issued a reserved judgment in which he made orders under the Care of Children Act 2004 (“the Act”) which placed M in the day-to-day care of the mother (respondent), permitted the relocation of the mother from Auckland to Hamilton, and defined contact by the father (appellant) which reflected that M would be residing in Hamilton with the mother while the father continued to reside in Auckland.
[3] The father appealed from that judgment. On 18 December 2009 I issued a judgment allowing the appeal and making orders that:
[2]The relocation orders made pursuant to s 44 of the Care of Children Act 2004 in [64]i) and ii) of the judgment are discharged. There will be substituted orders that:
a) The child M remain in Auckland;
b) The child M attend school in Auckland.
[3]The parenting order in [64]iii) is discharged and the matter of the day-to-day care for M and contact with M by his parents is remitted
to the Family Court at Auckland for determination.
[4] The reasons for my judgment follow.
Issues on appeal
[5] The issues raised by this appeal are:
a) Did the trial Judge err in law in:
i) failing adequately to take into account M’s views;
ii) failing properly to apply the principles in s 5.
b) Were the decisions the Judge reached supported by the evidence?
Factual background
[6] The appellant and the respondent were married on 3 November 2001. They separated in December 2006 when M was aged three years. Following their marriage the parties resided as part of the extended family of the father in three adjoining houses in an inner Auckland suburb. The houses were occupied by the paternal grandparents of M and other family members. After separation the mother and M continued to reside in the home until February 2008 when the mother sought alternative rental accommodation, also in an inner Auckland suburb.
[7] Subsequently the mother proposed to move to Hamilton. The father did not agree. The mother filed an application in September 2008 in the Family Court for orders permitting her to relocate to Hamilton. The father filed in opposition and also filed an application relating to the school M should attend, which the mother opposed. The parties were able to resolve their differences as to the school following a conference in March 2009, in a consent order which saw M attending a primary school near to the mother’s place of residence.
[8] In March 2009 the father filed an application for shared care of M. He said in evidence that this was in response to his informal contact with M being restricted by the mother following the issue of her relocation becoming the subject of exchanges between lawyers, and the mother’s application to the Court in September 2008.
[9] At the time of the mother’s application to relocate (September 2008), the father’s contact with M involved contact each alternate weekend and one evening per week (Tuesday). The father’s parents were also collecting M one day a week and caring for him until the mother finished work (on Mondays). By consent, M spent week about with his parents during the 2008/2009 summer holidays. There is lack of common ground about the extent of further informal contact, but clearly, following
an initial period of approximately six months after the parties separated there was a
pattern of flexible contact by which the father would visit M where M and the mother were residing on a frequent basis. That flexibility appears to have become less frequent to the point of being discontinued.
Approach on appeal
[10] The appeal is brought under s 143 of the Act which by subsection (4) imports the High Court Rules and ss 73-78 of the District Courts Act 1947. The appeal is by way of rehearing: s 75 District Courts Act. Counsel were in general agreement that the approach on appeal is as analysed by Heath J in Carpenter v Armstrong HC TAU
CIV 2009-470-511, 31 July 2009.
[11] The appeal falls within the scope of the principles for appellate reviews stated
by the Supreme Court in Austin, Nichols & C. v Stichting Lodestar (2007) 18 PRNZ
768. These principles are consistent with the appropriate approach previously stated
by Blanchard J in D v S [2003] NZFLR 81 (CA) at [18] in relation to appeals from the Family Court:
... An appeal to the High Court from the Family Court is an appeal by way of rehearing. Whilst the High Court will naturally give weight to the views of the specialist Court and may in some cases think it best to remit the case for reconsideration, it is fully entitled to substitute its views on questions of fact, including the issue of what is in the best interests of the child or children 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 ...
[12] I must take into account the advantage Judge Burns had in hearing and seeing the witnesses give evidence in the Family Court. To the extent the Judge exercised any discretion in reaching his decisions, I am required to determine whether those discretionary decisions are correct in accordance with the principles in May v May (1982) 1 NZFLR 165 (CA) and Blackstone v Blackstone (2008) 19 PRNZ 40. Otherwise I am free to reconsider the Judge’s decision and to substitute my own view on questions of fact and evaluation, if I am convinced the Judge’s decision was wrong.
The judgment appealed
[13] Judge Burns outlined the mother’s case and the father’s case at [4] and [5] of the judgment. I set out this summary below as it provides helpful background.
Mother’s Case
[4]That for some time prior to her application in 2008 she had been considering the possibility of moving to Hamilton. She endeavoured
to discuss the shift of the child with the father informally, but this
had failed to result in any agreement between them. That after she had shifted out of the former family home she had shifted to rental accommodation in [a nearby inner suburb]. That she was a school teacher by profession and employed by [a private girls’ secondary school]. Her life was sustainable but it was economically very difficult for her to establish herself, and that she was finding herself isolated from family and other support. She wanted to shift to a suburb of Hamilton known as Rototuma, which is a new area in the north east of Hamilton on Gordonton Road. Her intention was to initially rent a property in the area and then once she established herself to purchase a home. She considered that she would be economically better off in Hamilton, that there was an excellent primary school in Rototuma which was a relatively new school and well thought of. She considered that it had an excellent ERO report. She had been offered employment in that primary school, and so if she was able to shift the child she would be able to have employment, the child would be able to attend the school which would provide for him educationally, and she would be better able to manage financially than living in [...] Auckland with high rent. She considered that she had little prospect in the medium to long term of being able to obtain her own home if she remained in Auckland. She acknowledges that she has entered into a relationship with a man who lives in the Hamilton area. Her new partner has employment with a large New Zealand company in that area. His employment is stable. He has two children himself and has a shared care arrangement with his former wife. He considers that he is unable to shift to the Auckland area. She also says that her sister and her children live nearby in Hamilton, that the child is very close to his cousins and that she is very close to her sister. Both of his cousins will be attending the same school. She considers that with the move that the same level of contact, namely, every second weekend and half the school holidays could be maintained with not too much difficulty with the father. She accepts that it would not be possible for there to be a shared care arrangement, but she considers that the child’s relationship with his father can be fully maintained and cemented in place by him seeing the child every second weekend, and half the school term holidays. She would supplement this by regular phone contact and other forms of communication. That the distance of approximately an hour and a half is not that difficult, and she would be prepared to assist with transport to make the journey not too onerous on the father. Her case therefore is that she will function better as a mother and as a person if she is able to shift to
Hamilton, and this will have a low on beneficial effect to the child. She says that she will be happier because:
a) She will be economically better off; and
b) Will be able to pursue her relationship with her partner; and
c)Be able to provide a good school for the child and with her being able to work in the school she will be able to continue
to maintain employment, get the child to and from school and facilitate all of his day-to-day activities and routine. She contends that a shift will present little disruption to the status quo of the care arrangements prior to, but does accept that the Tuesday nights will not be possible. She would be prepared to increase the amount of time the child spends with his father during school term holidays, and possibly on occasions extend the weekend time.
Father’s Case
[5]Father’s case is that the proposed relocation will not advance the best interests and welfare of the child. He considers that he has a close relationship with the child. That the best parenting arrangements to meet the child’s needs is a shared care arrangement, and seeks to have a week on week about. That he has made arrangements with his employer and that he would be able to facilitate a week about arrangement, and when he is unable to pick the child up or get the child to school he will have the assistance of his mother to be able to do so, who does not live that far away. That he lives on the North Shore, Auckland and is able without too much detriment to the child to get him to [...] school in the morning, arrange to pick him up in the afternoon, and care for him. He does not accept that his application for shared care was brought on a tactical basis in order to try and defeat the application for relocation. He considers that it does meet and advance the child’s best interests. He accepts that he had the care every second weekend, but in addition he points to the fact that for a long period of time after separation mother continued to reside in a flat owned by his parents, that flat was adjacent to what has been called a family compound, where extended members of his family lived in [an inner Auckland suburb], and as a result the child was able to have considerable contact with the paternal family, particularly his paternal grandparents who he is close to. That a relocation to Hamilton would not only make it more difficult for the child to have a good relationship with him, but will also interfere with paternal family who have a diverse cultural heritage, and it is important that all of those relationships be maintained and fostered. He believes that the primary reason mother wants to relocate is to be with her partner. He considers that the partner’s needs and the mother’s adult needs are being placed ahead of the child’s needs, and it is the child’s needs who should take precedence. He believes that mother can cope financially in Auckland and has demonstrated that she is able to, that she had stable employment with an excellent school. He accepts that the child because he is male will not be able to attend [the private girls’ school] (being a female only school) and so
therefore will have to attend a different school than mother teaches at. He considers that mother will be able to maintain her relationship with her partner by remaining in Auckland because her partner regularly comes to Auckland for business reasons, and he points to the fact that they have been able to maintain a relationship for some time with her remaining in Auckland.
[14] The Judge analysed the issue for determination at [10]:
The issue I have to determine in this case is whether the best interests and welfare of this child will be met by him shifting to live with his mother in the Hamilton area, particularly the suburb nominated by her, and see his father realistically every second weekend and half the school holiday plus telephone and other forms of communication, or not shift and remain living in Auckland with mother renting accommodation in [an inner Auckland suburb], continuing to work at [the private girls’ school], with the child attending [primary] school and either seeing his father every second weekend and each Tuesday (continuation of status quo) or varying the
existing parenting arrangements to that of a shared care arrangement.
[15] The Judge considered the relevant law in [6]-[9] of the judgment, referring to
his earlier decision in PH v LH FAM-2005-004-001170, 1 November 2005 reported
on appeal as LH v PH [Relocation] [2007] NZFLR 737. He adopted the summary of the law in relation to relocation set out at [9] of his decision in PH v LH, which took into account particularly the judgment of Priestley J in Brown v Argyll [2006] NZFLR 705, as follows:
(a)In all proceedings under the Care of Children Act 2004 in relation to relocation, the welfare and best interests of the child must be the first and paramount consideration.
(b) The Court must assess a particular child in his/her specific circumstances – it is an individualised assessment.
(c) The Court is to undertake a multifaceted analysis to arrive at a conclusion that will meet the best interests and welfare of each child without giving undue weight to any one factor (no presumptions).
(d) There is no legal onus on either parent.
(e)The principles in s 5 of the Act apply but do not amount to a presumption or any one factor having to be given any more weight than another. In a particular case one principle may assume greater importance than in another case.
(f)The Court must give the child a reasonable opportunity to express views on the issue of relocation.
(g) The guardians must act jointly and consult each other.
(h)Section 52 of the Act requires the Court, when giving a parent day to day care (with a condition allowing relocation or not), to consider whether and how the other parent should have contact.
[16] The Judge defined a number of questions to be asked by the Court in any particular case to ensure those principles are carried into effect. He said at [9] of the judgment that the purpose of applying the list of factors he identified was to enable him to make a multi-faceted predictive assessment of the children’s life for the foreseeable future if the shift is declined, and similarly if the shift is allowed.
[17] After considering the facts of this case, as he found them to be, against the various factors, the Judge found at [63], that the option of M attending school in Hamilton at the same school at which the mother would teach, seeing the father each second weekend and half the school holidays, best met the interests and welfare of M for the following reasons:
·In addition to all of the observations that I have made I find that mother’s proposal to have her work and parent in Hamilton is viable and workable.
·It allows the continuation of the status quo in terms of the parenting arrangements with the exception of Tuesdays. It allows the continuation of the school holiday arrangements. There is no evidence before me to show that the status quo is not working for the child.
·It enables mother to move on with her life, have a feeling of progress and is likely to have flow on beneficial effects to the child. I predict that mother will function better. I predict that she will not harbour any feelings of resentment towards father for controlling her life, and will thus likely to lessen any conflict from her perspective. She sees him moving on with his life and entering new relationships, and shifting to other parts of Auckland. I have to treat both parents on a level playing field, and she now wants to move on with her life and shift to another part of New Zealand, but without significantly disturbing the parenting arrangements. She will be able to pursue work and relationship options. I reject father’s contention that the child will not cope with a new school and environment. Father shifted post-separation. The child coped with his new environment.
If I accepted his argument then it would mean that neither parent could shift, which is not a reality for either of them.
·Father says his work and relationship commitments prevent him from shifting to Hamilton. I cannot give father’s valid reasons for not shifting any greater weight than mother’s valid reasons for wanting to shift i.e. work, relationship and support. It is a reality of modern life.
·The distance to Hamilton is not that significant, and still allows a continuation of parenting arrangements which provide for the child to continue to cement and build his relationship with his father. It is not that disruptive.
·It allows him to strengthen his relationship with his cousins and aunty without being to the detriment of his relationships with his paternal family.
·The application for shared care was brought for tactical reasons and I question the genuineness of the application. If father had wanted to pursue shared care he would have sought that earlier, and not shifted to North Shore which makes it problematic to implement.
·No persuasive evidence has been provided to me which shows that the status quo is not working for the child in terms of parenting arrangements.
· Father’s family are going to move to Australia for their own reasons.
The child’s reality is going to change in any event.
·Mother has taken the primary responsibility for the child before and after separation. The child has infrequently been away from mother’s care for any period of time. It is probable that the child has a stronger relationship with mother. I have doubts that the child would cope with a shared care arrangement as proposed by father. He is familiar with the status quo and I have no evidence of him not coping with the status quo. In my view, a change in his life from the current parenting arrangements to a 50/50 arrangement is likely to have greater detrimental effects on the child than any change of school and location. When I weigh up the risks of change for the child of those two aspects, I consider that he will cope with a change of school and home provided he is in the day-to-day care of mother better than he will cope with shifting to a 50/50 arrangement.
[18] The Judge made the following orders and directions at [64]:
i) Pursuant to s 44 of the Act I grant consent for the child to shift from
Auckland to Hamilton.
ii) I grant consent for the child to shift schools.
iii) I make parenting orders which provide for the child to be in the day-
to-day care of mother and each second weekend together with half of the school term and Christmas holidays.
iv) I make those orders on the condition that the transport of the child for the purposes of contact with father be shared equally with mother
or any responsible agent of hers bringing the child to Auckland at the beginning of contact, or alternatively meeting father at a half way point and similarly, father taking the child to Hamilton at the conclusion of contact or meeting at a half way point.
[19] He gave directions regarding timing for the implementation of the orders at
[65], essentially that they were to commence at the conclusion of Term 4 2009.
The law
[20] The purpose of the Act is set out in s 3. It is to:
(a)promote children’s welfare and best interests, and facilitate their development, by helping to ensure that appropriate arrangements are in place for their guardianship and care;
. . .
[21] Section 4 of the Act provides that the welfare and best interests of the child must be the first and paramount consideration in all proceedings under the Act. Subsection 2 provides that the welfare and best interests of the particular child in his
or her particular circumstances must be considered. Subsection 3 provides that a parent’s conduct may be considered only to the extent (if any) that it is relevant to the child’s welfare and best interests. Under subsection 5 the Court is required to take into account in determining what best serves the child’s welfare and best interests, the principle that:
(a) decisions affecting the child should be made and implemented within a time frame that is appropriate to the child’s sense of time; and
(b) any of the principles specified in s 5 that are relevant to the welfare and best interests of the particular child in his or her particular circumstances.
[22] The principles relevant to the child’s welfare and best interests in s 5 are:
(a)the child’s parents and guardians should have the primary responsibility, and should be encouraged to agree to their own arrangements, for the child’s care, development, and upbringing:
(b)there should be continuity in arrangements for the child’s care, development, and upbringing, and the child’s relationships with his or her family, family group, whanau, hapu, or iwi, should be stable and ongoing (in particular, the child should have continuing relationships with both of his or her parents):
(c)the child’s care, development, and upbringing should be facilitated by ongoing consultation and co-operation among and between the child’s parents and guardians and all persons exercising the role of
providing day-to-day care for, or entitled to have contact with, the child:
(d)relationships between the child and members of his or her family, family group, whanau, hapu, or iwi should be preserved and strengthened, and those members should be encouraged to participate in the child’s care, development, and upbringing:
(e)the child’s safety must be protected and, in particular, he or she must be protected from all forms of violence (whether by members of his
or her family, family group, whanau, hapu, or iwi, or by other
persons):
(f)the child’s identity (including, without limitation, his or her culture, language, and religious denomination and practice) should be preserved and strengthened.
[23] Section 6 provides that in proceedings involving the guardianship of, or the role of providing day-to-day care for, or contact with a child:
(a)A child must be given reasonable opportunities to express views on matters affecting the child; and
(b)Any view the child expresses (either directly or through a representative) must be taken into account.
[24] In citing from [7] of LH v PH at [6] of the judgment, Judge Burns cited the statements of Priestley J in Brown v Argyll at [43]-[45] in respect of s 6, that failure
to afford a child the opportunity to express views or failure to take into account any express views of the child could render a subsequent decision jurisdictionally suspect; that the passage of the Act did not affect in any substantive way the approach the Court should take to relocation cases; and that the status quo should not be elevated into a presumption or dominant factor to weigh in the balance.
[25] Counsel were in general agreement as to the principles to be applied in application of the Act to this case. Mr Collis for the father summarised the factors from Brown v Argyll in much the same way as Judge Burns summarised them as set out above, and Mr Collis’s summary was adopted by Mr Ashmore for the mother.
[26] However, Mr Ashmore placed significant emphasis on the requirement that the status quo should not be elevated into a presumption or dominant factor to weigh
in the balance. He stressed that M’s current family situation must not be elevated to
the extent it was “locked in”, with the consequence that the mother was placed in a position of having to overcome any presumption in favour of the status quo.
[27] The point made by Mr Ashmore is supported by the decision of the Court of Appeal in D v S (2001) 21 FRNZ 331. The Court said at [47], declining to follow the English decision of Payne v Payne [2001] 2 WLR 1826:
For reasons apparent from the earlier analysis, presumptive or a priori weighing is inconsistent with the wider all-factor child-centred approach required under New Zealand law. Our law, as stated in Stadniczenko v Stadniczenko requires the reasonableness of a parent’s desire to relocate with the children to be assessed in relation to the disadvantages to the children of reduced contact with the other parent, along with all other factors. There will be no error of law if the decision as to residence is based on the welfare
of the children looking at all relevant factors, including the need of the particular children for a continuing relationship with their father and with their mother (Stadniczenko v Stadniczenko at pp 152-153; p 500-501).
[28] The Court of Appeal also observed that the nature and duration of the existing custodial arrangements are critical. It stated at [35]:
... [C]hoice of residence and relocation may be affected by the nature and duration of the existing custodial arrangements. Usually it would be artificial not to consider them together. But in some cases the duration of the existing arrangements and the greater degree of change proposed may require greater weight to be accorded the status quo.
[29] But, as Priestley J said in Brown v Argyll at [54], that observation is far from being a stipulation that the status quo should be accorded considerable weight. Rather it states the obvious, that the status quo goes into the scale along with the duration of existing arrangements and the degree of change proposed. He noted, however, at [55], that the s 5(b) principle needs to be assessed in the knowledge that a change in arrangements flowing from relocation will inevitably impact to some degree on a child’s care, development, and relationships.
[30] The facts in Brown v Argyll have relevant similarities to the facts in the present case. The mother sought to relocate to a provincial town in the North Island some thirty-five minutes drive away from her existing location, taking with her a seven year old daughter. The Judge at first instance held that the child’s welfare and interests were enhanced by her current living environment and in particular her father’s involvement in her school routine. Relocation would lead not only to a new
school but diminution of week-day contact with the child’s father and the father’s involvement in her schooling. This Court on appeal agreed with the Family Court Judge that, geographically insignificant though the proposed relocation might have been, the assessment of the child’s particular circumstances and interests under s 4 and the s 5 principles, pointed against relocation.
Alleged errors of law
[31] The appellant submitted that the Judge erred in law in:
(a) Giving insignificant or no weight to the child’s views;
(b) Finding that in this particular case none of the principles in s 5
assisted and had “a neutral effect”: [28] of the judgment.
[32] I shall deal with each of these points in turn.
Child’s views
[33] In the judgment the Judge referred to the child’s views being contained in a memorandum filed by Ms Hunter, counsel for the child, dated 7 July 2009. He noted that Ms Hunter was unable to appear at the hearing on 8 July 2009 and that another counsel appeared on her behalf. At [26] he set out the relevant part of Ms Hunter’s
memorandum of 7 July 2009 (“the second report”):
3. On 6 July 2009 I again visited M to obtain his views. 4.
The Court may recall from my previous report that M’s
views,
although clearly stated, were tinged with fantasy (living on a farm in
Hamilton with all sorts of amazing animals which was not, in fact, proposed).
5. M is now older. He is 5 and has been attending school.
6.He is as engaging and articulate as before but has been thinking about the case because he is aware of what each of his parents wants.
7.M told me firstly that he wanted the Judge to decide because it is too hard. It is clear that M does not want to disappoint either of his parents.
8. He then went on to tell me he wants to spend the same time with
Mum and Dad.
9.I explored what he meant by this with M to ensure I understood what he was saying. He had some difficulty in articulating this but made
it clear he wants more time with his Dad in the weeks.
10.M likes the idea of being collected from school by [F] (this is how M refers to his paternal grandmother) and then his Dad picking him up from there, being dropped back at school the next day by Dad.
11.I asked M where he got the idea from and he told me he thought it up. At best as I am able to ascertain that seems the case as M’s way
of describing what he wanted was consistent with his age.
12.When I asked M what each of his parents would think he told me his Dad would be happy because his Dad said he could stay anytime and Dad did not want him to go to Hamilton but he did not know how his Mum would feel (while displaying body language that made it clear he knew she would be unhappy).
[34] The Judge then said at [27]:
I have to consider the weight to be given to the child’s views. He is five. He has not been at school that long. He has an increasing awareness and reality
of the options that are to be considered by the Court. I consider that he is aware of his parents’ feelings about the situation. It would be very difficult
despite their best endeavours to totally shield him from the significant decision which the Court has in this case. That is no criticism of his parents, but it is a reality of the situation. I do not consider that I can give any significant weight to the child’s views in view of his age and level of maturity. I take them into account but in the context of this case cannot be given much weight.
[35] Mr Collis noted that the Judge made no reference to the earlier report of counsel for the child dated 17 December 2008 (“the first report”), which summarised M’s wishes as follows:
4.M tells me he would like to relocate to Hamilton so that he can live on a farm with assorted farm animals. M was clear however that if he was unable to live on the farm he did not wish to go.
5.Subsequent discussion with his mother made it clear that living on a farm was not in fact part of the proposal.
6.M also told me that he would see his dad every weekend although he could not tell me how often he saw his father at present.
7. From my perspective as Lawyer for Child I submit that M’s wishes are too unclear. It is hardly surprising given his age and stage and the fact that he has no real experience of what living in one place or another might mean.
[36] Counsel noted that between the two reports by counsel for the child, M had been enrolled at primary school in February 2009 pursuant to a consent order of the parents. Counsel submitted that while the first report made clear that M had no real appreciation of what living in Hamilton would mean, by the time of the second report in July 2009, M had the benefit of some three and a half to four months of schooling, was more articulate and displayed a greater understanding of the concepts under consideration:
· he wants the Judge to decide, because “it is too hard”,
·“he wants to spend the same time with Mum and Dad”, meaning “... he wants more time with his Dad in the weeks”;
·he wants to be collected by F (paternal grandmother) from school (as she had been doing on Monday and Tuesday afternoons).
[37] Counsel noted that the lawyer for the child had probed these views, concluding at paragraph 11 that M was describing what he wanted in a way consistent with his age.
[38] Further, that M also understood much more about the implications of the proposed move to Hamilton in practical terms, describing as reported in paragraph 12 of the second report, his perceptions of how his respective parents would feel about it.
[39] Counsel submitted that M’s views had matured significantly over the six month period in which he started school and his level of understanding enabled him to see the consequences if his views were adhered to.
[40] Counsel noted that the Judge chose not to interview M, and the evidence before the Judge as to M’s views was limited to the content of Ms Hunter’s two
reports and the submissions of counsel for trial. He submitted the Judge had no solid basis for assessing the child’s age and maturity and was wrong in law in “disenfranchising” M by giving little or no weight to his views.
[41] The submissions of counsel for the appellant were strongly supported by counsel for M.
[42] Ms Hunter submitted that the Judge did not adequately address M’s wishes or views. She submitted M made it clear in the second report that he wished more time with his father and he wished more time with his paternal grandmother.
[43] Counsel reported at the appeal hearing that in preparation for the hearing she again met with M, on this occasion at his school. She said that M told her his views were the same as those set out in the second report, namely that he wished to have the same time with both his mother and father and wanted F to pick him up from school and have him until his father called to fetch him. She said M made it clear that nothing had changed from his point of view. She said she checked with M to see if he had been told by anyone to tell her any particular thing and that he had replied “No”. She considered she had clarified with M that the views he expressed were his own.
[44] She said that while the Judge dismissed M’s views because of his “age and level of maturity”, he also stated that M has increasing awareness and reality of the options that are to be considered by the Court: at [27]. Counsel submitted that would
be a reason to place more weight upon what the child was saying rather than to dismiss his views as not being entitled to any significant weight.
[45] Mr Ashmore disagreed with the submissions of counsel for the appellant and the child. He noted there are two aspects to the requirement under s 6 of the Act, the first being the right for the views of the child to be ascertained, the second being how those views are to be taken into account. He said that the views of M had been ascertained by way of a thorough report by an experienced lawyer for the child and there was no requirement for a judicial interview, which indeed might be inappropriate. He noted that although in written submissions the appellant referred
to the Judge failing to properly ascertain the child’s views, this aspect was not pursued at the hearing. Rather, the contention of the appellant was that the Judge failed properly to take account of the views expressed by M.
[46] Counsel noted:
a) The age of M – five years (at the date of hearing);
b)M’s views have changed over a relatively short period of time (a reference to the difference between the first and second reports);
c) M was aware of the parents’ expectations;
d) M (as could be expected of a five year old) had limited understanding
of temporal concepts, such as shared care.
[47] Counsel submitted that against this background it was completely appropriate
for the Judge, who is an experienced Family Court Judge, to consider not to place weight on the views of a child such as M. He submitted this approach is consistent with decision making in this area: F v P Relocation (2005) 24 FRNZ 182; Carpenter v Armstrong at [84].
[48] Counsel said that the Judge was required to ascertain the views of M which
he did. The Judge was then required to turn his mind to those views in making his own decision, which he did. He submitted that to elevate M’s views to providing “the answer” to a complex issue involving the weighing of multiple factors was not
the intention of the legislation and is not correct.
Section 5 principles
[49] The Judge said at [28] and [29]:
[28] I take the s 5 principles into account but in this particular case none
of the principles assist me in making a judgment and have a neutral effect. I take into account the principles, particularly the principles
in 5B relating to continuity of arrangements, principle 5C of
consultation and co-operation between guardians and principle 5D of promoting the relationships between the children and members of their family and whanau.
[29]Each of the parents’ extended family have cultural diversity, and each can offer aspects of their culture. I do not consider that either extended family should be given precedence over the other.
[50] The general submission was made by the appellant that the Judge erred in deciding that none of the principles in s 5 assisted him in making a judgment and had
a “neutral effect”. This submission was addressed by the appellant in the context of factual findings to which I shall turn shortly.
[51] The Judge clearly did not disregard the principles. He specifically referred to those he considered relevant, s 5(b), 5(c) and 5(d), but obviously concluded that in considering the child’s welfare and best interests, these considerations balanced out.
[52] However, Ms Hunter submitted that the Judge failed to apply the principles
he deduced from the judgment in Brown v Argyll that:
(i) in relation to relocation the welfare and best interests of the child must
be the first and paramount consideration;
(ii)the Court must assess the particular child and his/her specific circumstances – it is an individualised assessment;
(iii)the Court must undertake a multifaceted analysis to arrive at a conclusion that will meet the best interests and welfare of each child without giving undue weight to any one factor (no presumption);
(iv) there is no legal onus on either parent.
[53] She submitted that Judge Burns failed to make the individualised assessment
of M in his specific circumstances, and that the Judge drifted too far into consideration of the parents’ issues and failed appropriately to consider M as a child
in his circumstances. She noted that s 4(2) of the Act is mandatory and that under
s 4(3) a parent’s conduct may be considered only to the extent (if any) that it is
relevant to the child’s welfare and best interests. She submitted this was an error of law that, on its own, provided a proper basis for the appeal to be allowed.
[54] Counsel referred to the Judge’s assessment at [24] of the judgment that if relocation were allowed, the father would have M in his care for about 20% of the child’s life and the mother 80%, whereas the status quo provides for about a 75/25% split, particularly with the father having the child on Sunday night and taking him to school on Monday morning. (The “75/25% split” is presumably the Judge’s arithmetical assessment of his description at [3] of the judgment of the parenting arrangements as at the date of hearing, that the child was in the father’s care every second weekend and for a number of hours each Tuesday with term holidays being shared.)
[55] Ms Hunter submitted that this assessment misses important points from M’s perspective. First, it does not take into account the additional time the father was accepted to have been spending with M, so the 25% assessment, she submitted, is flawed. She referred to the evidence that while the mother continued to live in the family compound following separation there was considerable flexibility, the mother’s own evidence being that the father would see M on Monday, Tuesday and Wednesday after work and on Saturday, and that after the mother moved to live separately there continued to be a good deal of flexibility in the father’s contact with M. The mother said:
When I first moved Monday and Tuesdays he (the father) would be at his mum’s house with M and so after he dropped him off on Tuesday he would stay for dinner and sometimes on a Wednesday.
The mother agreed that M often stayed extra nights with his father in addition to father having him on Friday, Saturday and Sunday nights every second weekend.
[56] Secondly, the Judge’s arithmetical assessment does not take account of the opportunity for the father to be a “functional parent” and involved in the day-to-day life of M. She submitted there is a significant difference from the child’s perspective when functionality and flexibility are substituted by weekend and holiday contact only, and that there was no assessment in the judgment of the effect of the inability
of the father to continue involvement in M’s extracurricular and schooling activities
as he has been able to do.
[57] She also submitted that the Judge’s finding that the father’s application for shared care filed in March 2009 was brought for “tactical reasons”, was unwarranted. Rather, she submitted, the father’s application responded to the circumstances that
his contact with M had been significantly reduced, as the mother had accepted in answer to cross-examination. The mother denied she had “relentlessly eroded M’s contact” with the father. She said she had not done that until 2009 and the reason she stopped the father coming to the house was:
... once legal things started, it started being an uncomfortable situation and saying things that weren’t very kind to each other and I didn’t want M to be
in that environment.
She accepted that a lot of flexibility went when M started school and also accepted that in the past she had always encouraged extra time for the father to have contact with M.
[58] Counsel further submitted that the Judge erred in his assessment of M’s relationships in equating all his extended family as having the same importance. She noted that in the particular circumstances of M, he was accustomed to a close and warm relationship with his paternal grandparents which was something the child himself clearly wanted to maintain and strengthen. She noted the Judge seemed to be influenced by the suggestion that the paternal family may move to Australia on some unspecified date. She said that if that proved to be the case in future, it may be grounds to revisit a fresh relocation application. But it was not a reason for M to be deprived of the significant and close relationship with his paternal grandparents that he has had in the past and presently enjoys,.
[59] Ms Hunter said that as M’s counsel, she did not understand the Judge’s reasoning that an increase in the important relationship with the cousins in Hamilton would outweigh the value of the relationship M has with his paternal grandparents and indeed all of his grandparents, all of whom are currently based in Auckland. Counsel did not accept the Judge’s finding at [63] that the relocation to Hamilton:
... allows him to strengthen his relationship with his cousins and aunty without being to the detriment of his relationships with his paternal family.
[60] She noted that while the Judge appeared to equate the Hamilton extended family with the Auckland extended family, M singled out F, his paternal grandmother, as a person with which he wanted to spend time. She noted that the majority of M’s extended family, and those of particular significance to him at his age and stage, are in Auckland, and the result of the relocation would be to diminish those relationships which the child himself identifies as important.
[61] She submitted that M’s continuing to live in Auckland would allow both parents to be involved in the most meaningful way in the child’s whole life, which would be in his best interests and welfare, and that a shared parenting order was appropriate which would reflect M’s wish to spend “the same time with his mother and father” and his desire to have close and regular involvement with his F after school.
[62] She submitted that the mother’s reasons for wishing to relocate were of questionable benefit for M. The relocation would impact negatively on the continuity in the arrangements for M’s development and upbringing and his relationships with his extended family, and in particular his continuing relationships with both his parents.
[63] In summary, Ms Hunter submitted that the Judge erred in his assessment of
M’s circumstances by:
(a) Not giving adequate consideration to the effects of the changes the relocation would have for M; and
(b) Failing adequately to weigh M’s wishes or views.
Alleged errors of fact
Care arrangements
[64] The appellant, supported by counsel for the child as I have recorded above, submitted that the Judge wrongly recorded the current care arrangements and in doing so diminished the extent of the father’s historical and current contact with M.
In turn that led to the Judge not adhering to the principles in s 5(b) and (d) of the Act
in relation to continuity of care and continued involvement of the wider family.
[65] I have previously referred to the Judge’s finding at [3] of the judgment as to the parenting arrangements that applied at the date of hearing: M was in his father’s care every second weekend and for a number of hours each Tuesday; term holidays were being shared.
[66] The appellant submitted that on the evidence, following separation the father’s contact with M included inter alia:
a) Alternate weekends from Friday to Monday with the father delivering
M to school on Monday;
b)Monday and Tuesday after day care or school at the paternal grandparents which included a traditional family meal on Mondays when father would be present;
c) Father visits M at the mother’s home to play with M, bathe him, read bedtime stories and participate in occasional meals;
d) Father visits M at the day care centre;
e) Father takes M to swimming lessons, M staying overnight with father afterwards on such occasions;
f) Once M starts school the frequent flexible contact continues, though the father’s visits to M at the mother’s home become less frequent;
g) Following the father’s application for a parenting order in March 2009 contact on alternative weekends and Monday and Tuesday evenings continued, but other flexible and frequent contact ceased.
h)M spent week about with each parent during the 2008/2009 summer holidays.
[67] Counsel for the mother accepted that the above summary is “strictly correct”, but said it might be misleading, suggesting that contact in this form had occurred since separation when the description is effectively an amalgam of all contact that had been occurring between 2007 and the date of hearing.
[68] The Judge’s summary of the parenting arrangements as at the date of hearing,
at [3] of his judgment, was inaccurate only to the extent that it omits reference to the paternal grandparents collecting M on one day a week after school until the mother completed work (which Mr Ashmore pointed out, may not necessarily be an error in fact because this was not necessarily contact with the father). This description of the status quo then informed the Judge’s arithmetical assessment of the split in shared parenting as 75/25% in favour of the mother.
[69] I consider that such an arithmetical approach, taking on board the reservation noted by Mr Ashmore in relation to the appellant’s description of the father’s contact with M as set out in [68], ignores the reality of the care arrangements for M. From approximately six weeks after separation at the end of 2006, until disagreement over the relocation issue and the commencement of legal proceedings in the latter part of
2008 and the father’s application for shared parenting filed in March 2009, which soured the spirit of co-operation and consultation that had existed between the mother and the father, a situation that enabled frequent and flexible contact by the father with M, had existed and been supported by both parents. This had facilitated a meaningful and close relationship between father and son. I accept that the Judge’s assessment failed to reflect this reality.
Grandchildren
[70] Under the heading, “The Child – the strength of existing and future attachments”, the Judge found at [42] of the judgment that M’s primary relationships are with his mother and father. He continued:
He has good secondary relationships with his paternal grandparents, aunty and cousins. He has some peer relationships. He also has further but less significant relationships with extended family on both sides. I understand that paternal grandparents have a number of grandchildren. It is difficult for them to place the interests of one particular grandchild ahead of another.
[71] This is clearly an error of fact by the Judge, as counsel for the mother accepted. There was no evidence to this effect. The evidence was that M is the only grandchild of the paternal grandparents. Counsel for the mother submitted that how many grandchildren are in the wider family is not strictly relevant and is not a basis for rendering void an entire decision.
[72] It is difficult to understand why the Judge would have made this observation and finding in the absence of any evidence to support it. Its relevance is as part of the mix contributing to the way the Judge assessed M’s relationship with his paternal grandparents and wider family.
Alleged findings with no evidentiary basis/against the weight of evidence
[73] The appellant criticised the following findings by the Judge: (a) At [12]:
It is probable that mother’s relationship is stronger with the child than father’s because of the extra time she has spent with him.
[74] The appellant submitted that while the evidence supported that M had spent more time with his mother, the inference drawn by the Judge should not support a relocation decision. It was submitted the evidence shows that M has a strong relationship with both parents.
[75] The context of this finding needs to be considered. The Judge found at [12] and [44] that both the mother and father have an excellent relationship with the child and that the relationship with his father is important (notwithstanding the inference he drew that the relationship with the mother was stronger because of the extra time she spent with M).
(b) Similarly a finding at [44] that:
... the child obtains his primary sense of belonging in the day-to-day care of his mother
was criticised on the basis that there was insufficient evidence to found such an inference in the absence of expert evidence from, for example, a psychologist.
[76] I do not accept that submission. The Judge heard lengthy and detailed evidence from the parents about family relationships and the caring arrangements in respect of M. It is not an unreasonable inference that a young child would bond primarily with the party with whom he spent the majority of time, in the absence of evidence to the contrary, as Mr Ashmore submitted.
(c) The finding at [63] that the father’s application in March 2009 for shared care “was brought for tactical reasons”, and at [31] that the father’s attendance at M’s school in recent months arose:
... out of a tactical decision made by him that he needed to demonstrate and show to the Court that he was able to do so and prioritise that for the sake of the child ... I consider that father has re- prioritised the child in his life as a result of the [relocation] application before the Court.
[77] The appellant submitted that the Judge misinterpreted the reasons for his application for shared parenting rather than accepting that it demonstrated a desire to spend more time with his son. He denied re-prioritising the child in his life as the result of the relocation application. Counsel noted that this was contrary to the appellant’s affidavit evidence and was not put to him.
[78] Mr Ashmore accepted that “speculative” rather than “tactical” might better describe the father’s application for shared parenting. He submitted that the
evidence in support of the application was insufficient and it was open to the Judge
to say that the application was “not serious” and thus “tactical”.
[79] The Judge heard the parties give evidence. He formed a view as to the father’s motives in applying for shared parenting which was available to him, although as the appellant submits, another interpretation is available. Ultimately, however, the Judge dealt with the proposal on its merits, finding at [61] that the mother’s proposal for future parenting arrangements is workable and that:
Father’s proposal of a seven/seven arrangement is workable but is going to cause some logistical issues.
[80] He dealt in some detail with those logistical issues as he assessed them, at [61] of the judgment.
(d) The finding at [36] that no evidence had been placed before the Judge which required him to give greater weight or significance to paternal or maternal families.
He found:
Both are equally important.
[81] The appellant submitted this finding ignored the extensive evidence from members of the father’s family about their considerable involvement with the child.
[82] The Judge also said at [36]:
Father’s family is made up of two very established long term European cultures. Similarly mother’s family involves significant cultural heritage. I accept that the child has had significant contact with paternal family. Those relationships are cemented in place. I have no reason to doubt that whatever scenario the Court chooses, his relationship with both sides of his family and heritage will be maintained.
[83] Members of both families gave extensive evidence. Witnesses from neither side were called for cross-examination. The Judge’s observations confirm his appreciation of the significant contact the child has had with the paternal family.
(e) The finding at [34] that the father’s family had made a decision on a long- term basis to shift to Australia, and by inference, that their influence and significance
for the child M would be diminished. It was submitted that this finding was contrary
to the weight of evidence.
[84] The Judge said at [34] and [35] of the judgment:
[34]There is however, a significant issue with respect to the choice of residence which emerged during the hearing. Mother’s evidence was that father’s family had made a decision to shift to Australia. This was following the sale of a family business. I understand they own property in New South Wales. Father in his evidence under cross-examination acknowledged that members of his family, particularly his parents, had made a decision to shift to Australia, but this was not immediately on the horizon, and there was no suggestion that this was likely to occur in the near future. The properties in Sandringham had not been placed on the market for sale.
[35] In my mind this raises a significant factor. The reality in modern life
is that people shift. They are doing so on an increasingly frequent basis. Some New Zealanders often go to Australia and return. They
also go to other countries. Modern life is affected by increased
mobility. I accept that father’s family no doubt have many and genuine reasons for wanting to leave Auckland and go to Australia. There may be historical reasons for this. They may simply want to try a new a new way of life or to explore other avenues or options. No doubt his family would have considered any impact such a shift would have on the child, but I detected from father’s evidence that there had been a decision made on a long term basis to shift to Australia, so it was not a question of if but when. Accordingly, his own family for their own reasons were seeking to relocate. It is therefore difficult for father and his family to be critical of mother wanting to do the same.
[85] The mother gave evidence about the possibility of the paternal grandparents relocating to Australia. This was put to the father in cross-examination. He replied:
There has been talk of my family relocating to Australia, yes, for a long time, for about ten years around the dinner table. Dad recently bought his sister’s share of the farm, the family farm over there. They have tenants on it in a little house, they have no concrete plans to move there in the foreseeable future especially with the economy the way it is, and it would be wrong to think that there was a clear timetable sequence of events that was going to take them over there, it’s been just very much speculation. I think they’d like to do it, but they haven’t done anything concrete really to bring that about.
[86] The father subsequently confirmed in re-examination that he personally had
no plans to relocate in Australia, and that his partner and he were quite happy to live
in New Zealand and travel across to Australia to visit family.
[87] The father submitted the evidence established that there were no concrete plans to move to Australia and that he had no plans at all to relocate. It was submitted that no weight should have been given to this allegation at all.
[88] The mother submitted that the father’s evidence in this respect was far from unequivocal and it was open to the Judge to conclude that “there had been a decision made on a long term basis to shift to Australia, so it was not a question of if but when”.
[89] However, Mr Ashmore submitted that the Judge’s remarks were merely observations, illustrative of social trend and leading to his rationalisation, in the final sentence of [35], that it was difficult for the father and his family to be critical of the mother wanting to relocate. He submitted that the observations about the paternal grandparents relocating to Australia were not essential facts or findings.
[90] I do not agree with those submissions. If the Judge’s statements at [34] and
[35] can be categorised as mere observations, they nevertheless provided one of the reasons the Judge gave at [63] for selecting the relocation option proposed by the mother as best meeting the interests and welfare of M:
Father’s family are going to move to Australia for their own reasons. The child’s reality is going to change in any event.
[91] This matter clearly weighed heavily with the Judge. In [34] he describes the paternal family’s decision to shift to Australia as “a significant issue” and in [35] as raising “a significant factor”.
[92] The only evidence on this matter was given by the mother and the father. The paternal grandparents were not cross-examined on this issue or their evidence generally. Their evidence referred to M’s very strong and loving bond with F and to his paternal grandparents’ home as a “second home” for M, where he enjoys sleeping over and often asks if he can stay longer; and that:
Since his birth M has been a member of a close knit family unit.
[93] On the other hand, at [42] the Judge said he accepted the evidence of the mother:
... that maternal grandmother will relocate to Hamilton in due course.
[94] The mother’s evidence on that point was that her mother is:
... intending to move to Hamilton upon her retirement.
[95] In answer to cross-examination she said that her sister, who lives in
Hamilton, and her mother are probably her major support and:
... my mum would one day like to be in one place with all her grandchildren and to retire there.
She said she hoped her mother could eventually retire to Hamilton.
Discussion and conclusions
[96] The starting point is s 4 of the Act: the welfare and best interests of the child must be the first and paramount consideration.
[97] The welfare and best interests of the particular child in his or her particular circumstances must be considered: s 4(2). A parent’s conduct may be considered only to the extent (if any) that is relevant to the child’s welfare and best interests: s 4(3).
[98] In determining what best serves the child’s welfare and best interests the Court must take into account any of the principles in s 5 that are relevant to the welfare and best interests of the particular child in his or her particular circumstances: s 4(5)(b).
[99] However, subsection (5) does not limit s 6 (child’s views) or prevent the Court from taking into account other matters relevant to the child’s welfare and best interests: subsection (6).
[100] The Judge held at [28] of the judgment that none of the principles in s 5 assisted him in making a judgment and had a neutral effect. He referred to the principle in s 5(b) as one he took into account: that there should be continuity in arrangements for the child’s care, development and upbringing and the child’s relationships with his or her family group should be stable and ongoing and in particular that the child should have continuing relationships with both his parents. However, the Judge developed his reasoning against an unduly limited analysis of the parenting arrangements as at the date of hearing.
[101] He defined the status quo as that the child was in the father’s care every second weekend and a number of hours each Tuesday, with term holidays being shared. As I have concluded at [69], this analysis denied the reality of the parenting and caring arrangements which pre-dated the Family Court hearing from shortly after the parties’ separation in December 2006. Those arrangements had enabled flexible and frequent contact of the father with M and had facilitated the continuing relationship of M with his father, and indeed, with both parents.
[102] The flexibility and frequency of contact with the father importantly involved the relationship of M with his paternal grandparents. At the time of the hearing M was aged five. Until the age of three when his parents separated M had lived in the family compound of the paternal family as part of and intimately involved with the extended family and the paternal grandparents. That situation continued for more than a year following the parties’ separation. So for more than four years of the short five years of his life, M was part of a close-knit extended family in which he was the only grandchild of the paternal grandparents. That background contributed to the flexibility which facilitated frequent contact and the continuing relationship of M with his father. It did not cease when the mother moved from the paternal family compound in February 2008 because M would be in the care of his grandparents on Mondays and Tuesdays after day care or school.
[103] Further, until legal proceedings over relocation reared their head, a level of
co-operation and consultation remained between the parties that facilitated the father visiting M at the mother’s home to play with him, to bathe him, to read him bedtime
stories and generally to be involved in a natural way as the child’s father, in the child’s care and development,.
[104] I consider that certain erroneous factual findings of the Judge resulted in his giving insufficient consideration to the principles in ss 5(b) and 5(d), that there should be continuity in arrangements for M’s care, development and upbringing, and that arrangements with family members should be preserved and strengthened. They persuaded him to set to one side and diminish the extent and importance of the historical involvement with M of the father and the paternal family. I refer to the erroneous findings of fact that M was one of several grandchildren of the paternal grandparents and they had difficulty in prioritising between the grandchildren, and that the father’s family are going to move to Australia for their own reasons which would change the child’s reality in any event. Those factual findings resulted in the Judge approaching the issue of the continuity in arrangements for M’s care from an incorrect factual basis.
[105] Added to that, is the incorrect factual finding that the maternal grandmother “will relocate to Hamilton in due course”. That appears to be her wish, and may occur, given that the mother’s sister and children reside in Hamilton. But at present, not only are M’s extended family on his father’s side resident in Auckland, but also his maternal grandparents and great-grandfather. The only members of M’s extended family resident in Hamilton are the mother’s sister and her two children and on the mother’s evidence, under the existing arrangements M has been able to establish a close relationship with his Hamilton cousins.
[106] I conclude that the Judge therefore erred in finding at [63] that the option for relocating to Hamilton:
allows the continuation of the status quo in terms of parenting arrangements with the exception of Tuesdays.
[107] The next point is that M’s views must be taken into account under s 6(2). His views were ascertained by counsel for the child. No objection was taken to the means of ascertaining M’s views. There was no suggestion that I should see M, and
given the diligent way in which Ms Hunter sought and reported M’s views, it was neither necessary or desirable that I should do so.
[108] That s 6(2) requires any views the child expresses to be taken into account does not mean, of course, that the views must be followed or that they are in any way determinative: Brown v Argyll at [49]. As Priestley J there observed:
Human beings are frequently not the best arbiters of their own best interests. Children, who have yet to develop to adulthood and are so frequently the casualties of parental conflict, are no exception to that truism.
[109] A five year old cannot be expected to have any appreciation of the range of complex factors involved in a relocation decision, and his views must necessarily reflect his past experience. But in this case, the experience M expressed was positive and confirmed a view consistent with the principle in s 5(b) that he should have continuing relationships with both his parents: he wants to spend “the same time” with his mother and father; and he wants to have close and regular involvement with F, his paternal grandmother after school.
[110] There is no evidence to suggest that M has been subjected to inappropriate parental influences, such as frequently causes the Court concern and means that the views expressed by the child cannot be given any weight in the evaluative process. This was the situation in Carpenter v Armstrong (at [84]).
[111] I therefore agree with the submissions for the appellant and counsel for the child that the Judge was wrong not to accord any significant weight to the views of
M in the particular circumstances of this case.
[112] For those reasons I conclude that the Judge erred in making certain factual findings which I have identified. Those incorrect factual findings contributed to his erring in the application of principles (b) and (d) of s 5. He also erred in failing to take adequately into account the views of M, as required by s 6(2). Those errors resulted in his incorrectly assessing the welfare and best interests of M.
[113] I am convinced that M’s welfare and best interests will best be served by his being able to have continuing contact with both his parents on a regular, frequent
basis such as he has experienced and enjoyed for most of his young life. The geographical separation which would be introduced if the mother were to relocate to Hamilton would significantly impede and erode the opportunities for contact with the father and for him to be involved in M’s development and upbringing.
[114] The conclusion I have reached does not elevate to a presumption, or entrench, the status quo such that it is a dominant factor weighed in the balance. Rather it reflects the reality of M’s particular circumstances and what will best serve his welfare and interests, which are paramount.
[115] I do not overlook the interests of the mother, but her concerns and interests must be secondary to those of M. She is an intelligent, able person who holds an excellent position at a highly regarded Auckland secondary school. It is understandable that she wishes to move on in her own life, but I also have no doubt that she has M’s best interests at heart. Her counsel emphasised that the distance between Auckland and Hamilton would not be great in terms of M’s contact with his father. So it is for her. She should be able to foster M’s close relationship with his Hamilton cousins and continue the relationship with her partner, albeit not at close geographical proximity, as she would prefer. Her continuing residence in Auckland will enable M to have continuing time and relationships with both parents, which is his right and his wish.
[116] The Judge considered three options for parenting orders and relocation at [62]
of the judgment. Having decided that relocation to Hamilton should be granted he made an order pursuant to s 44 of the Act. He then made parenting orders based on the child’s relocation to Hamilton.
[117] For the reasons set forth above, I determined that the appeal must be allowed and that M shall remain in Auckland and attend school in Auckland. I therefore discharged the parenting orders made by the Judge. However, I consider that the matter of the day-to-day care for M and contact with M by both his parents is most appropriately determined by the Family Court. I therefore remitted that matter to the Family Court for determination.
[118] In a minute accompanying the results judgment, I expressed the hope that the parties would be able to agree on shared day-to-day care for, and contact with, M in the spirit of co-operation and consultation that previously prevailed, now that the issue of relocation has been determined and requires that M shall continue to reside in Auckland and to attend school in Auckland.
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