L v T HC Tauranga CIV-2011-470-568
[2011] NZHC 965
•24 August 2011
NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO 11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION PLEASE SEE IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
CIV-2011-470-00568 UNDER the Care of Children Act 2004
IN THE MATTER OF the judgment of Judge Geoghegan dated 27
June 2011 (FAM-2006-070-001682)
BETWEEN L
Appellant
AND T
Respondent
Hearing: 18 August 2011
(Heard at At Hamilton)
Counsel: E M Eggleston and C F Allen for Appellant R H Paul for Respondent
L C Jack, Lawyer for Child
Judgment: 24 August 2011 at 10:30 AM
JUDGMENT OF POTTER J
In accordance with r 11.5 High Court Rules I direct the Registrar to endorse this judgment
with a delivery time of 10.30 a.m. on 24 August 2011.
Solicitors: Holland Beckett, Private Bag, Tauranga 3143 Copy to: R H Paul, P O Box 530, Whakatane 3158
L C Jack, P O Box 13040, Tauranga 3141
L V T HC TAU CIV-2011-470-00568 24 August 2011
Table of Contents
Introduction [1]
Background [4]
Grounds of appeal [7]
Approach on appeal [9]
Judgment of the Family Court [14]
Submissions and discussion
Availability [31]
Adolescence [62]
Extracurricular activities [68]Section 5 principles [70]
Child’s wishes [83]
Respondent’s application for discharge of order for costs
on stay [89]
Result [97]
Costs on appeal [100]
Introduction
[1] E is a happy, bubbly, affectionate nine year old girl. She is very fortunate. She has parents who both love her dearly and want, and are able, to provide for her day to day care. E loves both her parents and when in the day to day care of one of her parents misses the other parent deeply. She also enjoys a very close bond with her paternal grandparents who have been involved with E since the first year of her life.
[2] L, E’s father, appeals against a judgment of Judge Geoghegan in the Family Court at Tauranga (“the judgment”)1 in which he made a final parenting order that E is to be in the day to day care of her mother T and is to have contact with her father as set out in [29](2)(b) to (f) of the judgment.
[3] The parenting order provided for the mother’s day to day care to commence at 4 p.m. on Sunday 24 July 2011. That was not implemented because L filed an appeal and also made a successful application for a stay of the judgment in the High Court on 27 July 2011. To cover the period between the granting of the stay and the hearing of the appeal Duffy J made orders following the interim parenting order made on 28 April 2010 under which L had the day to day care of E and there were orders for contact with T.2
Background
[4] L is aged 44 years and is a truck driver. He operates a trucking business from Katikati where he lives. T is aged 39 years and is a nurse. In 2001 the parties entered into a de facto relationship. E was born on 18 April 2002. In February 2006 the parties separated. In April 2007 a parenting order was made by consent for the shared care of E while L remained in Katikati and T was living in Tauranga. In August 2009 T moved to Whakatane to live with her new partner. By agreement E
1 GDL v JTT FC Tauranga FAM-2006-070-1682, 27 June 2011.
2 GDL v JLT HC Tauranga CIV-2011-470-568, 27 July 2011.
lived in the day to day care of her father in Katikati and saw her mother most weekends.
[5] In September 2009 the father applied for variation of the parenting order and directions as to guardianship. The parties subsequently filed various applications relating to E’s schooling. In November 2009 the Family Court made an interim parenting order by consent that E be in the day to day care of her father with contact to the mother at weekends and holidays. By agreement, E was to change schools from Term 1 2010. There was a further interim parenting order by consent in April 2010 which essentially continued those arrangements, and pursuant to the judgment of Duffy J on the stay application, they have remained in place.
[6] In May 2011 there was the hearing before Judge Geoghegan in the Family Court at Tauranga which led to final orders that E be in the day to day care of her mother with contact with the father on weekends and holidays.
Grounds of appeal
[7] The appellant seeks orders from this Court that E remain in his day to day care with weekend and holiday contact with the respondent.
[8]The grounds of appeal stated in the notice of appeal are:
1.That the Family Court Judge failed to give sufficient weight in relation to:
a)The significant number of criticisms he had of the respondent in failing to act in a child focused way; and
b)The evidence of the s 133 report writer on various aspects (boundaries in the mother’s home being less authoritative; little psychological impact on E if L was less available to care
for E than T; E’s adolescence and her specific medical condition could be met by regular contact with the respondent); and
c)E had been in an established status quo since August 2009 with the appellant in Katikati and the respondent took no issue with his parenting ability.
2.The Judge failed to give sufficient weight to the loss of E’s very special relationship with her paternal grandparents when none of her extended family live in Whakatane.
3.The Judge placed too much weight on the following factors:
a)The respondent’s availability to care for E.
b)The appellant’s lack of availability to care for E when considered in the context of a six month work schedule.
c)That the respondent would be more able to attend to any matters relating to E’s “approaching adolescence” and her specific medical condition.
d)Activities such as horse riding when E participated in a number of activities with the appellant including Brownies, swimming and netball.
Approach on appeal
[9] There was no dispute as to the relevant statutory provisions and authorities governing the approach on appeal. The appeal has been brought pursuant to s 143 of the Care of Children Act 2004 (“the Act”) which provides a right of appeal against a decision of a Family Court which finally determines the proceedings.
[10] The High Court Rules in ss 73 to 78 of the District Courts Act 1947 with all necessary modifications apply to an appeal under s 143 as if it were an appeal under s 72 of the District Courts Act. The appeal is by way of rehearing under s 75 of the District Courts Act.
[11] This appeal arises from an application by the appellant for a variation to a parenting order under s 56 of the Act and does not require leave.
[12] The appeal from a parenting order is a general appeal to which the principles in Austin, Nichols & Co Inc v Stichting Lodestar3 apply.
[13]The principles that can be derived from the Supreme Court judgment in
Austin, Nichols are helpfully summarised by Wylie J in H v H:4
(a)the appellant bears the onus of satisfying the appeal court that it should differ from the decision under appeal – see [4];
(b)it is only if the appellate court considers that the appealed decision is wrong that it is justified in interfering with it – see [4];
(c)the appeal court has the responsibility of arriving at its own assessment on the merits of the case – see [5];
(d)no deference is required beyond the customary caution appropriate when seeing the witnesses provides an advantage because, e.g. credibility is important – see [13]; and
(e)the appellate Judge is entitled to use the reasons of the first instance decision maker to assist him or her in reaching his or her own conclusions, but the weight the Judge places on them is a matter for the Court – see [17].
Judgment in the Family Court
[14] Judge Geoghegan summarised the background to the determination he was required to make, namely whether E should remain in the care of her father or move to Whakatane to live with her mother, and in either case to determine contact arrangements. He said that each parent contended that E would be better off in their
3 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141;
Blackstone v Blackstone [2008] NZCA 312, (2008) 19 PRNZ 40.
4 H v H HC Auckland CIV-2009-404-4457, 3 August 2009 at [26].
care. He noted that he had heard evidence from both parties, T’s partner, L’s mother, the paternal grandmother of E and Mr John Williams a clinical psychologist who prepared a s 133 report for the Court. He had also had the benefit of interviewing E prior to the hearing.
[15] He referred to allegations made by each of the parties concerning the other, and he said:5
... I consider that the evidence establishes that both parties fundamentally have E’s best interests at heart. The reality is that both parties have acted from time to time in a manner which, on reflection, they may regret.
[16] He recorded his assessment of the evidence that in various significant areas T had not acted in a child focused manner. The Judge referred to lack of consultation both with L and E regarding T’s move to Whakatane, the reality of that move being in the Judge’s assessment “that a care arrangement which appeared to very appropriately meet E’s needs will now be replaced by one which I think all parties acknowledge as inferior;”6 T’s insistence on E continuing to attend a certain primary school when there was a realistic and appropriate alternative, which the Judge said left him with the distinct impression that T saw E’s enrolment at the alternative school “as possibly establishing a status quo which would be in favour of any argument that she remain in her father’s care”;7 and “a very unfortunate incident” when E attended Brownies camp in January 2010 when, the Judge said, T’s actions “could hardly be said to constitute consultation of the kind which T appeared to promote in her evidence or to be child focused”.8
[17] The Judge was not satisfied that T’s endeavours to justify the move to Whakatane as being in E’s best interests reflected the reality of the position. He said her moves could hardly be said to be child focused. 9 He also considered it was likely that T directly involved E in adult issues which should have remained the problem of her parents.
5 At [7].
6 At [7](a).
7 At [7](b).
8 At [7](c).
9 At [9].
[18] The Judge considered T’s current circumstances, noted the plans of T and her partner to get married in the near future, that her partner has a daughter aged seven who spends regular weekends in her father’s care and that T’s partner is a self employed cabinet-maker and joiner who has a modest income.
[19] He noted that T was currently employed on a fulltime basis but with considerable flexibility in her working hours and the flexibility to undertake a significant amount of work in her home. He recorded T’s undertaking to the Court that in the event E is placed in her day to day care she will reduce her working hours to 20 hours per week. He noted that would mean the income coming into the household reducing from about $80,000 per annum to $40,000 per annum, but he said there was no reason to believe that T would not be able to provide for E financially in the event of such a reduction.
[20] In considering L’s circumstances, the Judge referred to “some uncertainty” around the relationship between L and his previous partner S. He said that no issue was taken with L’s ability to provide for E’s financial needs and “despite the criticisms levelled at L by T she clearly felt confident enough in L’s parenting abilities to have left E in his day to day care in 2009”.10
[21] The Judge then turned to the issue of availability of the parties to care for E on a day to day basis. He said:11
... L’s occupation requires him to start work on a relatively regular basis at
6.00 in the morning returning home at variable times but sometimes at 6.00pm or later. On these occasions L’s mother provides for the care of E either calling to her home early in the morning to provide for her needs or having E stay overnight with her grandparents. E’s paternal grandparents reside in Katikati and have been consistent and important figures in her life. From T’s perspective this is a very significant point of difference between what each parent can provide for E’s day to day needs as opposed to L who clearly relies quite significantly on assistance from his mother. In this regard there is no need to undertake the meticulous examination of L’s working hours that was undertaken by the parties. Suffice to say that the evidence establishes that L could not provide adequately for the day to day care of E without assistance from his mother. That does however need to be put in some perspective. The reality is that L’s parents and particularly his mother have had a very significant involvement in E’s life from the time she was
10 At [10].
11 At [11].
born. While it was T’s evidence that E currently stays quite often overnight with her grandparents for two nights and occasionally on a third night during a week, there has been a clear history of Mrs L providing care for E throughout her life. ... She has had a very significant role in E’s life throughout and clearly both of E’s parents have been happy for her to have that role. It has resulted in a very close relationship between E and her paternal grandparents.
[22] The Judge then referred to the s 133 report prepared by Mr Williams.12 He referred to Mr Williams’ conclusions that each parent was capable of parenting E as shown by the previous shared parenting arrangement; the importance for E’s peer relationships and competitive needs to participate with her friends as she became older; that while the relationship E enjoyed with each parent was different, her relationship with both was strong and warm; that he did not consider a change of school for E would be a major problem; and that neither arrangement for the day to day care of E would solve the problem of E very significantly missing her other parent when with her primary caregiver.
[23] The Judge referred to Mr Williams’ brief reference to the fact that E suffers from a specific medical condition, but said that in his assessment this did not of itself raise any issues of particular significance because he considered both parents were familiar with the potential difficulties for E and would be able to deal with them appropriately. However, he recognised that because T has the same medical condition herself, she is likely to be more able than L to recognise any concerns which may arise through the syndrome.13
[24] The Judge referred to E’s wishes as communicated to him in his interview with her. He referred to E having expressed to him the view that “I really want to live with mum a lot more”, and that she spoke very passionately about horse riding, an interest the Judge noted was fostered and encouraged by T. E had expressed to the Judge that she had spent one and a half years with her father and wanted to see what it would be like to be with her mother and after a year she could then choose who she wanted to live with. The Judge noted that Mr Williams expressed some concerns around her expression of such a wish, not only because it represented a
12 At [13]-[14].
13 At [16].
change in her wishes, but that a year was not the sort of frame time he would expect to be suggested by a girl of E’s age.
[25] The Judge concluded that while E may have indicated a preference, “her view as to day to day care given the condition or nature (sic) of it could not be seen as unequivocal”.14
[26]The Judge then said:15
... the authorities are clear that the foundation for all decisions in respect of children’s care must be that the paramount consideration is a child’s welfare and best interests and that any decision must take into account the principles relevant to a child’s welfare and best interests as set out in s 5 of the Act, together with any views and wishes expressed by the child.
[27]The Judge then summarised the relevant considerations as follows:
(a)Both parents are clearly capable of providing for E’s day to day needs.
(b)E has a very strong relationship with her paternal grandparents who have played a very significant role in her life both prior to and after her parents’ separation. They are significant figures in E’s life.
(c)E has a very positive relationship with each parent’s partner and it would appear that the relationship between T and her partner is more stable than that of L and his partner. Notwithstanding that it is clear that L can provide for E’s needs with the assistance of his parents.
(d)Upon reducing her working hours to 20 hours per week T would be able to engage in a more hands on role in E’s care during the week than L.
(e)That while both parents would be able to attend to any matters relating to E’s medical condition and approaching adolescence it is more likely that T would be more able than L to deal directly with those issues.
(f)That E is likely to have greater structure and clearer boundaries in her father’s home than in her mothers.
(g)That E’s passion for horse riding is one that is shared with her mother but that she could participate in both Katikati or Whakatane if she wished. It is more likely however that her participation in horse riding would be encouraged more by her mother than her father.
14 At [23].
15 At [24].
(h)That being in her mother’s care is likely to enable her to develop a greater relationship with T’s step-daughter although the importance of that relationship is a little unclear.
(i)That a change in status quo will expose E to starting a new school and developing new friendships with all of the potential difficulty and upheaval involved in such things. Countering that concern however is the fact that Mr Williams had not considered a change in school to be something which would trouble E.
(j)That E has expressed a wish to live with her mother although there are some concerns surrounding the clarity and strength of that wish.
[28]The Judge concluded:16
[25] This is a very finally (sic) balanced matter. The reality is that E would be fine in the care of either parent. Looking forward however and taking into account the matters to which I have referred I have reached the view, notwithstanding my criticisms of T that she is in a better position than L to provide for E’s needs in the future. I need to say immediately that this should not be taken in any way as a criticism of L’s parenting of E. He has provided a very high standard of care for E and cannot be faulted. I think however that the reality is that T will be able to provide more of a hands on parenting role than L, will be in a better position than L to provide for E’s needs as she approaches adolescence and will also be able to provide a more hands on role in terms of E’s extracurricular pursuits and in particular horse riding which is recognised by all to be a particular passion for E. In this regard T’s role will be complemented by her partner who has a particular interest in outdoor activities. The ability of T to provide more hands on care for E than L is also significant given the principles relevant to a child’s welfare and best [interests] which emphasises the need for parents and guardians to have primary responsibility for a child’s care, development and upbringing.
[26] It is most unfortunate that T’s decision to live in Whakatane has brought about the dilemma regarding E’s day to day care. While I have been critical of that decision this is not a process which is designed to punish parents for decisions which the Court may be critical of. The function of the Court is to engage in a predictive exercise regarding a child’s welfare and best interests.
[29] The Judge then turned to the issue of contact, having noted that L did not propose contact arrangements but preferred to leave the decision to the Court.
[30] In the result, the Judge made the parenting order for day to day care in favour of the mother with the contact orders detailed at [29](b).
16 At [25]-[26].
Submissions and discussion
Availability
[31] A primary focus of the appellant’s submissions was the issue of availability. The appellant submitted that the Judge placed too much weight on the respondent’s availability to care for E and the appellant’s lack of availability to care for E.
[32]Counsel referred to the conclusion of the Judge where he said:17
I think however that the reality is that T will be able to provide more of a hands on parenting role than L, will be in a better position than L to provide for E’s needs as she approaches adolescence and will also be able to provide a more hands on role in terms of E’s extracurricular pursuits and in particular horse riding which is recognised by all to be a particular passion for E.
[33] Counsel analysed from that conclusion there were three reasons that tipped the scales in what the Judge said was “a very finely balanced matter” in favour of the mother:
a)The mother will provide a more hands on parenting role than L.
b)The mother will be in a better position than the father to provide for E’s needs as she approaches adolescence.
c)The mother will provide a more hands on role in relation to extracurricular pursuits in particular horse riding.
[34]
Counsel was critical of the Judge’s view that there was “no need to undertake the meticulous examination of L’s working hours that was undertaken by the parties”. 18 He submitted this “broad brush approach” failed to acknowledge that on a factual analysis of the evidence the difference between the availability of the parties to care for E on a day to day basis was not so great. Counsel conceded that in17 At [25].
18 At [11].
evidence L accepted that T would be more available on a day to day basis, but submitted it was a matter of degree.
[35]The appellant was asked:
Q. Would you agree that given T’s evidence she would be more available on a day to day basis to care for E than you?
A.On the majority of the time, I would probably have to agree with that but I think staying in the bed, being in the same house, there’s a lot more to bringing up a child than that.
[36] Counsel referred to the summary created by the respondent from L’s working log book, annexed to her affidavit dated 18 November 2010. He said this showed that over a period of just under eight months from January to August 2010, for 53 weekdays the father was not working (32 per cent), for 90 week days the father either finished before 3 p.m. or was not working (55 per cent), and for only 30 week days the father was working after 6 p.m. so was not available for dinner or overnight (18 per cent). He said this boiled down to the father being unavailable one night per week. This was consistent with L’s evidence that E is “usually” with her grandparents one night, “occasionally” two nights and “barely” three nights per week. It too is also consistent with the evidence of Mrs L, E’s grandmother:
Q.Would it be fair to say given L’s driving responsibilities that E is in fact in your care three days a week at times?
A. At times yes, but not that often. It just depends on the time of year.
[37] He submitted the Judge’s analysis failed to consider Mr Williams’ evidence that there was no aspect of any distress to E in the arrangements for her care while in her father’s day to day care, that E has a clear understanding that she was living in two households, one in Katikati and one in Whakatane, that the involvement of her grandparents was a “sort of thing” between the two households, and that there was no great psychological impact for E in a situation of shared responsibilities for her care. Further, it was submitted that “one stable home from Monday to Friday for E” was not the only variable to be considered in this case.
[38] Counsel then referred to matters conceded by the mother, that E would be cared for by someone else for one to two days per week from after school until T
arrives home from work, that she could not guarantee being able to schedule her work so as always to be available to collect E from school, and that money was very tight giving rise, in counsel’s submission, to a clear incentive for T to maintain the number of her working hours and thus limit her availability for E’s day to day care.
[39] In relation to this last submission Mr Eggleston referred to T’s evidence that “you have my word, if E comes to Whakatane I will be back to 20 hours”, and the Judge’s reference to this as an undertaking to the Court:19
She [the respondent] has undertaken to the Court that in the event that E is placed in her day to day care she will reduce her working hours to 20 hours per week.
[40] Mr Eggleston referred to T’s evidence, in an affidavit dated 18 July 2011 filed subsequent to the hearing in relation to costs in the Family Court, in which her income is based on an estimated 26 hours a week following the expiration of her current contract on 31 August 2011. He also referred to a letter from the Bay of Plenty District Health Board relating to employment of T on a casual Registered Nurse contract for approximately three months.
[41] At the appeal hearing Mr Eggleston handed up a schedule of the respondent’s income which he said was an analysis based on T’s affidavit sworn on 18 July 2011. Counsel explained that this affidavit was filed by T pursuant to the direction of Judge Geoghegan20 to file affidavits as to financial means and assets of liabilities together with any submissions regarding contribution to professional costs no later than 21 days from the date of the judgment. He said L has not filed such an affidavit. Upon inquiring from counsel the basis for the introduction of this further evidence, I was informed that the evidence was admitted by consent as new evidence on the appeal.
[42] Rule 20.16 of the High Court Rules governs further evidence on appeal. It provides:
20.16 Further evidence
19 At [8].
20 At [31].
(1)Without leave, a party to an appeal may adduce further evidence on a question of fact if the evidence is necessary to determine an interlocutory application that relates to the appeal.
(2)In all other cases, a party to an appeal may adduce further evidence only with the leave of the court.
(3)The court may grant leave only if there are special reasons for hearing the evidence. An example of a special reason is that the evidence relates to matters that have arisen after the date of the decision appealed against and that are or may be relevant to the determination of the appeal.
(4)Further evidence under this rule must be given by affidavit, unless the court otherwise directs.
[43] As McGechan on Procedure notes,21 in general an appeal proceeds on the evidence which was presented to the decision-maker, and the parties do not have an opportunity to bolster their case with new evidence on appeal. Before further evidence can be adduced on appeal the leave of the Court is required and the Court may grant leave only if there are “special reasons” for hearing the evidence. It is noted that the power to grant leave is sparingly exercised.
[44] The general test for the admission of further evidence on appeal is that it must be: 22
(a)cogent;
(b)likely to be material; and
(c)could not reasonably have been discovered at an earlier stage.
[45] No application for leave to adduce this further evidence on appeal was filed. The “new evidence” was not presented in an affidavit filed in the appeal, but was derived from T’s affidavit of 18 July 2011, filed in the Family Court in accordance with the directions of Judge Geoghegan.
21 Andrew Beck and others, McGechan on Procedure (looseleaf ed, Brookers) at [HR20.16.01].
22 At [HR20.16.02]. See also Telecom Corporation of New Zealand Ltd v Commerce Commission
[1991] 2 NZLR 557 (CA).
[46] It then transpired that while I was told by counsel that the evidence was admitted by consent, Ms Paul on behalf of the respondent wished to qualify certain of the figures with additional information contributed from the bar.
[47] Ms Paul, although apparently consenting to this evidence being put before the Court without the qualifications she contributed, submitted that it was incomplete and of limited assistance to the Court. With that I agree. Without an appropriate application and affidavits containing all the evidence sought to be adduced, it is not possible for me properly to assess its cogency, materiality and freshness, and whether it meets the high test for admissibility on appeal.
[48] This “new evidence” was said by Mr Eggleston to provide proof contrary to the conclusion reached by Judge Geoghegan: “The reduction of her hours would clearly have an impact upon the income coming into the household, with Ms T estimating her income as dropping from $80,000 per annum to $40,000. However, there is no reason to believe that Ms T would not be able to provide for E financially in the event of such a reduction.” 23
[49] The thrust of Mr Eggleston’s submission was that on the basis of this “new evidence” it is apparent that the respondent cannot afford to look after E on her reduced hours of work and therefore this Court on appeal cannot accept the findings of the Judge set out above.
[50] I asked the parties to identify the evidence which was before the Judge in relation to his finding at [8] of the judgment. I was referred to the evidence of T in answer to cross-examination by Ms Allen, when she confirmed that she left a fulltime job in Tauranga where she was earning $34,000 per annum and went to Whakatane where at the time of the hearing she was earning $80,000 per annum. In answer to cross-examination from Ms Jack, L said that if she reduced her work hours to 20 per week with the same employer (the Eastern Bay Primary Health Alliance), her salary would be “around $40,000 a year”.
23 GDL v JTT, at [8].
[51] L in reply to a question from Ms Jack as to what was his business taxable income, said that it varied from year to year but he thought it was in the vicinity of
$25,000, “give or take”. To the question “So, you’re not on a particularly high income?”, he replied “No”, but he said he had been able to meet all his financial needs. He said he received “a lump sum at the end of the year”; he thought it was around $5,000 to $7,000 depending on the profit the company made, because the working for families subsidy was rebated. He agreed he had been receiving about
$100 per week from T by way of child support.
[52] Although Mr Eggleston suggested from the bar that L’s evidence about his income referred to above was not complete because it related to the profit of his business and did not include wages or drawings, there does not appear to have been any evidence to this effect at the Family Court hearing. And, regardless of any such increments, L said he was not on a particularly high income. On the basis of L’s evidence, it is logically inconsistent to suggest that while L has been able to meet his financial needs with E in his care, T would not be able to do so on an income of approximately $40,000 per annum, with some assistance from her partner in meeting household expenses.
[53] The purported introduction by the appellant of this “new evidence” was inappropriate and unsatisfactory. The figures in the analysis counsel handed up were taken from an affidavit of T filed in the Family Court after the hearing in relation to costs. While there would be no reason to doubt the reliability of the evidence, the appellant seeks to use it for a different purpose from that for which it was given. There are adjustments relating to T’s future income situation that would need to be taken into account in the context of the issues before the Court. For example, if T had the day to day care of E, the child support and working for families tax credits which L has been receiving would be received by her. There were other adjustments referred to by Ms Paul, but not put in evidence.
[54] Contrary to Mr Eggleston’s submission, it would be wrong for this Court to place reliance on this “new evidence” to reach on appeal findings contrary to those reached by Judge Geoghegan on the basis of the evidence adduced before him which was the subject of cross-examination.
[55] Further, standing back and looking at the situation in the round, I cannot disagree with the Judge that there is no reason to believe that T would not be able to provide for E financially, on the basis of her reduced working hours.
[56] Counsel for the respondent referred to the flexibility in working hours available to T and that she can undertake significant amounts of work at home. (This was referred to by the Judge).24 She said the Judge had paid considerable attention to the issue of availability. She submitted the Judge had considered the “meticulous examination” of L’s working hours undertaken by the parties as presented in evidence, and it was open to him to conclude on the basis of the evidence that the appellant could not provide adequately for the day to day care of E without the assistance of his mother.
[57] She further submitted that the Judge gave appropriate consideration to the expert evidence of Mr Williams, noting Mr Williams’ description of E as a much loved child who enjoyed a positive and emotionally warm attachment to each parent and to her grandparents. She said the Judge did not overlook this evidence. She submitted the Judge did not err when he determined that T was more available to E. There was a clear difference in availability between the parties which was an issue to which the Judge was entitled to give weight.
[58] Counsel clarified the nature of the short-term contract referred to in a letter of 7 July 2011 annexed to the affidavit of T sworn 18 July 2011. The letter states that T “has been employed” on a casual Registered Nurse contract for approximately three months by the Bay of Plenty District Health Board, and that she is part of the team of four staff who provide cover for short notice and annual leave for two nursing staff across two four hour clinics two days per week. The letter states:
The contract is casual and T is offered hours as and when they become available – predominantly during the school term as we do not run external clinics over the school holidays. There is no compulsion for her to accept offered duties ...
[59] Counsel confirmed that T has negotiated a contract for reduced hours with her principal employer on the basis of 26 hours per week which will yield a gross
24 At [8].
income of approximately $47,000 and a net income of approximately $40,000 per annum. In addition, she has the opportunity to maintain her clinical hours on a casual and non-compulsory basis for 20 hours per annum with the Bay of Plenty District Health Board.
[60] It seems clear that T has taken steps to reduce her working hours as she said in evidence in the Family Court that she would do. The reduced working hours she has negotiated with the Eastern Bay Primary Health Alliance appear to be 26 hours rather than the 20 hours she committed to in her evidence and which the Judge treated as an undertaking to the Court. There appears to be flexibility available in her working hours which may well enable her to achieve maximum availability for E which was a primary (but certainly not the only) consideration underpinning the Judge’s decision that she should be given the day to day care of E.
[61] There can be no doubt that E receives excellent care on a day to day basis with both her father with the assistance of his parents in Katikati, and with T in Whakatane. But as L conceded, T is more available on a day to day basis to care for E than he can be given his work commitments, and by living with T, E’s week days will be spent in the same home. The child’s time will then be divided between essentially two homes rather than three.
Adolescence
[62] The Judge concluded25 that T would be in a better position than L to provide for E’s needs “as she approaches adolescence”.
[63] Counsel for the appellant was critical that the Judge did not articulate what E’s adolescent needs were, particularly as E is only nine and there was no evidence that she is advanced for her age so as to have particular needs. It was submitted that the Judge placed weight on this issue when it is seemingly not relevant at E’s age, and that even if it were, it could be addressed through regular contact with the mother. Counsel referred to the evidence of Mr Williams that changes with E’s
25 At [25].
puberty and the impact of her specific medical condition could be addressed through daily telephone calls to her mother.
[64] Counsel also raised in the context the evidence that the father is better at setting boundaries than the mother.
[65] It is not surprising that the Judge did not articulate E’s adolescent needs when he referred to E’s “approaching adolescence”.26 He accepted that while both parents would be able to attend to any matters relating to her medical condition, it was more likely that T would be more able than L to deal directly with those issues. Mr Williams accepted T would be in a better position to support E in her particular medical syndrome and with changes as she enters puberty (which can be advanced or increased by her specific medical condition). The Judge did not err in reaching the conclusions he did on this aspect. They were available to him on the evidence.
[66] As to boundaries, the Judge said it was likely that E would have greater structure and clearer boundaries in her father’s home than in her mother’s. But Mr Williams said that each parent was capable of parenting E, although he thought “... it would be helpful if mother could be a little bit more authoritative in her parenting”.
[67] These were some factors among many which the Judge appropriately weighed. He did not err.
Extracurricular activities
[68] Mr Eggleston submitted that E’s particular interest and indeed passion for horse riding should not tip the balance in favour of the mother when considered against more significant issues. He said this interest needed to be seen in the context of all the activities that E is involved with which include swimming, Brownies, netball, boating, keyboard lessons and clay bird shooting, most of which she undertakes in Katikati and in which her father is involved.
26 At [24](e).
[69] It cannot be said that the Judge weighed this factor to an extent that it “tipped the balance” in favour of the mother. Again, it was just one of a number of factors that the Judge had to consider and did consider. There is little doubt on the basis of the evidence that at least at this stage of her life, E is very keen about horse riding which is therefore a relevant consideration to be taken into account, as the Judge did.
Section 5 principles
[70] Under s 4(1) of the Act the child’s welfare and best interests are to be the “first and paramount” consideration in a case such as this. Under s 4(5)(b) in determining what best serves a child’s welfare and best interests a court must take account of any relevant principles specified in s 5.
[71] Judge Geoghegan recognised the primary importance these considerations and principles when he said:27
... the foundation for all decisions in respect of children’s care must be that the paramount consideration is a child’s welfare and best interests and that any decision must take into account the principles relevant to a child’s welfare and best interests as set out in s 5 of the Act, together with any views and wishes expressed by the child.
[72]The principles in s 5 of the Act are:
5 Principles relevant to child’s welfare and best interests
The principles referred to in section 4(5)(b) 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
27 At [24].
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.
[73] The s 5 principles are not ranked and no one principle has greater weight than another except that s 5(e) must be fulfilled and so may displace other principles in a particular context.28 But as the Chief Justice observed in Kacem v Bashir,29 the importance of the child-parent relationship is also to be seen throughout the Act.
[74] The appellant submitted that the Judge gave far too much weight to the principle in s 5(a) and gave no or insufficient weight to other matters.
[75] Principle 5(a) emphasises the need for parents and guardians to have primary responsibility for a child’s care, development and upbringing. I consider Judge Geoghegan gave appropriate weight to this principle in the context of this case. He was required to make a determination in respect of day to day care of E between one parent and the other. Notwithstanding the importance of relationships between the child and members of his or her family and family group (the principle in s 5(d)) the focus in the context of this case was properly on which of the parents of E should have primary responsibility for her day to day care.
[76]
Mr Eggleston accepted that there was no presumption in favour of the status quo but he submitted that in terms of the principle in s 5(b), insufficient consideration was given to the fact that E has been in the day to day care of her father since 2009 and that no findings of any concern were made in relation to the father’s care. He submitted the Judge’s finding that “He has provided a very high28 Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [8].
29 At [7].
standard of care for E and cannot be faulted”30 was “very significant” in the context of this case. Further, he submitted that E has lived in Katikati for her entire life and that her paternal grandparents have been an integral part of that care.
[77] The Judge acknowledged and took into account all these matters. He was particularly cognisant of the important part that E’s paternal grandparents have played in her care and her life.
[78] Section 5(c) refers to ongoing consultation and co-operation among and between the child’s parents. The appellant submitted that the findings by the Judge about the mother’s shortcomings in respect of child focused actions are “very significant” given the geographical distance between the parties and the need for co- operative communication.
[79] In relation to the principle in s 5(d), it was submitted that the Judge failed to consider how the relationship between E and her grandparents and L would be “preserved and strengthened”. He submitted this was very important given the evidence of Mr Williams that E has with her grandparents “a very strong relationship” which was long term and important and that E “idolises” her father.
[80] In relation to the principle in s 5(e), the appellant submitted that this is “a most significant omission in His Honour’s decision”. It was submitted that the Judge failed adequately to consider T’s involvement of E in adult issues, her inability to keep her emotions separate from E and her view that E needs to be consulted even to the extent of adult issues. It was submitted that this issue should have taken far greater prominence in the decision than it did, and should “trump any consideration in favour of the mother on availability”. Counsel drew attention to the relevant considerations listed by the Judge in [24] and noted that these matters were not included. They were, he said, material omissions.
[81] The Judge gave detailed consideration to adult issues and other matters he identified.31 It is incorrect to suggest that because he did not include them in the list
30 GDL v JTT at [25].
31 At [7].
of relevant considerations in [24] he failed to give them adequate consideration. In fact he singled them out for lengthy and detailed consideration and clearly took them carefully into account. He obviously had concerns about these aspects, but ultimately in determining what the Judge described as “a very [finely] balanced matter” he focussed on “the function of the court ... to engage in a predictive exercise regarding a child’s welfare and best interests”.32 That was the appropriate focus, as the Judge identified.33 Whether they are matters that fall appropriately for consideration under s 5(e), I doubt. Violence is defined in s 58 of the Act to mean physical abuse or sexual abuse. However, these were important and relevant matters and were identified as such and appropriately considered by the Judge.
[82] In summary, I do not accept that the range of matters identified by counsel in terms of the s 5 principles were not given any or sufficient weight by the Judge. He carefully referred to all these matters and clearly took them into account.
Child’s wishes
[83] I turn to the submissions of the lawyer for the child, particularly in relation to E’s wishes. Ms Jack met with E on 29 July 2011, almost exactly one month after the judgment was issued, and after the decision on the stay application. She described E as “bright and bubbly”. E’s interest in horses evidenced itself when this became the first topic of conversation. But E also spoke of how she had enjoyed a week with her father when they had gone to Gisborne in his stock truck and stayed overnight.
[84]
Ms Jack discussed with E her previous views and her views communicated to Judge Geoghegan. She said E had difficulty in recalling what she said to the Judge, but clearly instructed her that she was not to advocate a particular position at the appeal hearing. E said that she found the current situation confusing because she did not know where she was going to be living and she would “like the Judge to sort it out”. Ms Jack noted that up until two weeks prior to the hearing in May 2011, E was quite clear to counsel that she did not wish to have to choose between her parents as she loved them both and missed the parent whose care she was not in at the time. In32 At [26].
33 At [24].
the instructions received by Ms Jack from E on 29 July she again clearly signalled that she does not wish to have to choose between her parents and now simply wishes for a decision to be made so that she knows where she will be living.
[85] Given E’s instructions to her, counsel preferred not to make detailed submissions on the various points of appeal but she briefly addressed the issues of availability and relationship with paternal grandparents.
[86] On the issue of availability, Ms Jack said that at the time of the hearing the availability of T to care for E was speculative in terms of her future employment contract and reduced hours. She said, however, that T’s updated evidence in her affidavit of 18 July 2011 showed the carrying into effect of T’s intention to reduce her work hours when her employment contract is due for renewal at the end of August 2011 to 26 hours, being approximately five hours per day.
[87] As to relationship with the paternal grandparents, Ms Jack submitted that E’s moving to her mother’s day to day care in Whakatane does not mean the disruption of the significant relationship with her paternal grandparents or mean a lack of continuity in that relationship. She submitted that less day to day contact need not result in a less strong relationship, and that it would in fact result in the grandparents adopting a role more in the nature of grandparents rather than a role of day to day carers.
[88] In assessing E’s wishes, Judge Geoghegan was clearly cautious about E’s wish expressed to him that she wanted to live with her mother. He referred to the “hook”, being E’s view that this would only be for one year, and then she would choose with which parent she wanted to live. He also referred to Mr Williams’ surprise about the expression by a nine year old of such a time period. Ultimately, he concluded that though E may have expressed a preference to him, her view was “not ... unequivocal”. The Judge’s caution in weighing this factor, is shown to be justified and appropriate by E’s recent instructions to her counsel.
Respondent’s application for discharge of order for costs on stay
[89] When Duffy J granted the stay on 27 July 2011 she made an order for costs on the appellant’s application.
[90]In relation to costs, she said:34
[20] At the conclusion of the hearing, following delivery of my oral judgment, the appellant sought costs. He does so on the usual basis that he has been the successful party. Also, at the time he filed the application for a stay or shortly thereafter, the respondent indicated to him that if he were unsuccessful, she would be seeking costs on a 2B basis.
[21] The respondent opposes an award of costs. She seeks to draw a difference between the circumstance where a respondent who is brought into the application through the appellant filing the application would seek costs following success as being different from the applicant/appellant being entitled to costs, the difference being that the applicant/appellant initiates the proceeding, whereas the respondent does not. This is an approach that is not usually taken regarding awards of costs. Although the respondent does not initiate a proceeding, the respondent has a measure of control regarding its ability to either consent or not oppose the application being applied for. Whilst it may not be usual to award costs in the Family Court, this Court does award costs in Family Court matters. It seemed to me that the applicant had a strong case for a stay. In these circumstances, I see no reason why costs should not be dealt with in the usual way that costs follow the event and, accordingly, I am awarding costs to the applicant on a 2B basis.
[91] The respondent now seeks an order discharging the order for costs made by Duffy J. She relies on r 14.8 of the High Court Rules which provides that costs on an opposed interlocutory application, unless there are special reasons to the contrary, are to be fixed and paid when the application is determined. However, under r 14.8(2) the Court has a discretion to reverse, discharge or vary an order for costs so made if satisfied subsequently that the original order should not have been made.
[92] The basis for the respondent’s application is that she is now in receipt of legal aid, a grant having been made on 11 August 2011. Ms Paul submitted that had the
34 GDL v JLT HC Tauranga CIV-2011-470-568, 27 July 2011 at [20] and [21].
Court known of the respondent’s eligibility for legal aid the order for costs on the stay application would not have been made and had she been in receipt of legal aid the Court would not have made an order for costs against her as she did not meet the requirements of the Legal Services Act 2011 for an order to be made.
[93] The short point is that at the time Duffy J ordered costs on the application for stay the respondent was not legally aided. The grant of legal aid made after determination of the stay application is clearly stated to be in relation to her defence of the appellant’s appeal.
[94] As Duffy J said, the respondent had a measure of control in relation to the stay application, having the ability either to consent or not oppose the application. The respondent elected to oppose the application, as she was entitled to do, but as the unsuccessful party to the application she was liable for costs in the normal way, as Duffy J determined.
[95] The respondent can have been in no doubt about her potential liability for costs as her counsel had indicated to the appellant that she would be seeking costs on a 2B basis if the appellant was unsuccessful on the stay application, as Duffy J records at [20]. Indeed Ms Paul covered the issue of costs in her written submissions stating that neither of the parties were legally aided and seeking costs for the respondent on a category 2 basis, if the application for stay was declined.
[96] Duffy J awarded costs on a category 2 band B basis. I understand from counsel there is some dispute about the quantum of costs. I would have thought the appropriate amount was readily ascertainable by reference to Schedules 2 and 3 to the High Court Rules. Schedule 2 sets the appropriate daily recovery rate for category 2 proceedings at $1,880 per day. Schedule 3 covers time allocations (items 4.12, 4.14 and 4.15 would appear to be relevant). If the parties cannot agree costs on a 2B basis as ordered by Duffy J, then the quantum of costs in accordance with her order is to be determined by the Registrar of the High Court at Tauranga.
Result
[97] The Judge has not been shown to be wrong in his decision, nor in his approach to, and weighing of the various relevant factors. The appeal is dismissed.
[98] The orders made by Judge Geoghegan at [29](2) of the judgment are confirmed, save that in [29](2)(a) the date will be 4 p.m. on Friday 2 September 2011.
[99] The respondent’s application for discharge of the order for costs on the stay application is dismissed.
Costs on appeal
[100] The respondent is entitled to an order for costs. She, of course, is legally aided for the appeal. I consider a 2B basis for costs is appropriate. If counsel cannot agree costs on that basis brief memoranda may be submitted.
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