Malcolm v Lloyd

[2015] NZHC 1885

NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO

11D OF THE FAMILY COURTS ACT 1980.  FOR FURTHER INFORMATION, PLEASE SEE COURT/LEGISLATION/RESTRICTIONS-ON-PUBLICATIONS.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-003213 [2015] NZHC 1885

IN THE MATTER	of the Care of Children Act 2004
BETWEEN	MALCOLM Appellant
AND	LLOYD Respondent

Hearing:	28 April, 1 May and 12 June 2015
Appearances:	V A Crawshaw for the Appellant J Robertson for the Respondent M K Headifen, Lawyer for the Child
Judgment:	17 August 2015
Interim Judgment:	1 July 2015

(FINAL) JUDGMENT OF MUIR J

This judgment was delivered by me on Monday 17 August 2015 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:………………………….

Counsel/Solicitors:

V A Crawshaw, Barrister, Auckland

J Robertson, Barrister, Auckland

M K Headifen, Barrister, Auckland

MALCOLM v LLOYD [2015] NZHC 1885 [17 August 2015]

[1]      In my interim judgment dated 1 July 2015 I declined the appellant’s appeal. At [154] under the heading “Consequential orders” I stated:

The Family Court recognised that its orders would require a sensible time frame for implementation having regard to the requirement for the mother to obtain employment and accommodation in Auckland.  Anything less would not be in E’s interests. At the conclusion of argument the parties invited me, irrespective of outcome, to reserve further orders pending detailed submissions.  I intend therefore to deliver my decision on an interim basis and invite submissions to final orders on the following timetable.

(a)       Appellant’s submissions to be filed and served by 17 July 2015.

(b)       Respondent’s submissions to be filed and served by 24 July 2015.

(c)       Submissions of counsel for the child to be filed and served by 1

August 2015.

[2]      That timetable was adjusted by one week in response to a request by the appellant.

[3]      Memoranda were duly received from the appellant on 24 July 2015 and from the respondent and counsel for the child in sequential weeks.

[4]      On 11 August 2015 I issued a final judgment in which I ordered:

1.        E be returned to Auckland no later than Sunday 15 November 2015.

2.The orders of Judge Burns in the Family Court as to shared care and holiday arrangements (paragraph 65 of his judgment) are confirmed.

3.For   the   avoidance   of   doubt,   shared   care   arrangements   will commence on 30 November 2015 [on the timetable appearing at [18] of this judgment].

[5]      Subsequently,  I  received  an  application  from  the  appellant  to  recall  my judgment on the basis of an intention to respond to certain matters raised in the memorandum of counsel for the child.  I granted that application.

[6]      I have now received counsel for the appellant’s memorandum in reply.

[7]      The memorandum maintains the position set out in her earlier memorandum of 22 July 2015 namely that the appropriate final date for return of E to Auckland be

24 November 2015.

[8]      More significantly, however, the reply memorandum includes a challenge to the Family Court’s 3/2/2/3 shared care arrangement order on the basis that the proper order should be on a “5/9 basis, being every second weekend and two nights overnight in the alternate week”.

[9]      I do not consider that an appropriate submission at this stage.  In my interim judgment I dismissed the appellant’s appeal from the decision of the Family Court. That decision:

1.Ordered the return of the child from Wellington to Auckland and declined the application for relocation filed by the appellant.

2.        Ordered that, for the first two weeks after E’s return to Auckland, she

is to be in her mother’s care.

3.        Made shared parenting orders on a 3/2/2/3 basis.

4.Ordered that the school term holidays be shared equally and E be in her parent’s care on a week about basis for the Christmas holidays with the exception that, in even years, E be in the mother’s care from Christmas  Eve  through  to  3  pm  Christmas  Day  and  then  in  the father’s care from 3 pm Christmas Day until Boxing Day and that in odd years the arrangement be reversed (alternating thereafter).

[10]     Those orders are reflected in [64] and [65] of the Family Court’s judgment

and stand on the basis of my dismissal of the appeal.

[11]     I note that at [150] of my own judgment I found persuasive Mr Headifen’s support for the Family Court’s shared parenting order on the basis that it was age appropriate.

[12]   Against this background the appellant’s memorandum of 22 July 2015, (correctly in my view), contained no suggestion of an adjustment to the Family Court’s shared parenting order and Mr Headifen’s observation at [15] of his memorandum dated 10 August 2015 that “Neither counsel has submitted that Judge

Burns arrangement should be altered”, is in that context, unobjectionable.   I acknowledge that a challenge was made to the shared care orders in the hearing before me but the appellant was unsuccessful in that challenge.

[13]     In relation to E’s return date, there is little between the parties, with the appellant proposing a return no later than 24 November 2015 and the respondent “within 3 months” (presumably of the date of his counsel’s memorandum dated 31

July 2015).   For the child, Mr Headifen submits that by delaying the return to 24

November it “may mean that E is not well settled and secure before the Christmas holiday commences” having regard to:

(a)       the Family Court’s order that for the first two weeks E is in Auckland

she is to be in her mother’s care; and

(b)      the commencement of a 3/2/2/3 shared care arrangement thereafter. [14]           Nevertheless, he notes that E is a child who, he says, has in the past adjusted

well to change and that the issue of a return date is simply an issue of balance. [15]  It is obvious to me that there is no one correct answer to this question.

[16]     Counsel for the appellant says that her client is doing her utmost to return to Auckland  with  E  but  has  applied,  unsuccessfully  thus  far,  for  25  jobs  and  is concerned about E’s wellbeing when she has no job or accommodation at this point.

[17]     This proceeding has a protracted history.  E has now been in Wellington for in excess of 18 months.  The cost and inconvenience attendant on the Family Court’s interim orders dated 23 December 2013 had been substantial and I consider there to be merit in Mr Headifen’s position that E needs to be settled into a new routine in Auckland before the holiday arrangements commence.

[18]     I accordingly order that:

1.        E be returned to Auckland no later than Sunday 15 November 2015.

2.The orders of Judge Burns in the Family Court as to shared care and holiday arrangements ([65] of his judgment), having been upheld on appeal, are confirmed.

3.For the avoidance of doubt, shared care arrangements will commence on 30 November 2015 on the following timetable:

Monday	Tuesday	Wednesday	Thursday	Friday	Saturday	Sunday
Week 1	Father	Father	Mother	Mother	Father	Father	Father
Week 2	Mother	Mother	Father	Father	Mother	Mother	Mother

4.        The interim orders made by Judge Adams in the Family Court on 23

December  2013  are  to  continue  until  E  relocates  permanently  to

Auckland.

[19]     No further orders are required at this stage.   If, in subsequent years, it is considered that E’s interests are better served by a 5/5/2/2 regime an appropriate application can be made to the Family Court.  I note Mr Headifen’s submission that some of the literature suggests that this is not appropriate before age five.  Moreover, if, as mature adults who both demonstrably have E’s best interests at heart, some alteration to the 3/2/2/3 arrangements is considered to better serve those interests now, consent orders can be sought in the Family Court.

[20]     The respondent does not seek costs.   Strictly, that is on the basis that his proposal for relocation by 1 November 2015 is ordered by the Court.  In ordering a return by 15 November 2015 his ability to apply for costs is technically preserved. However, I commend his indication that costs are not to be sought. This seems to

me  to  be  an  appropriate  gesture  in  terms  of  developing  the  sort  of  ongoing

relationship with the appellant that E’s best interests demand.

Muir J