McDonald v McDonald
[2017] NZHC 1866
•8 August 2017
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
THE-FAMILY-COURT/LEGISLATION/RESTRICTION-ON-PUBLISHING- JUDGMENTS.
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
CIV-2017-470-000059 [2017] NZHC 1866
BETWEEN MR MCDONALD
Appellant
AND
MRS MCDONALD Respondent
Hearing: 10 July 2017 Appearances:
Patricia Jones for the Appellant
Jane Hunter for the Respondent
Dean Blair as Lawyer for the ChildrenJudgment:
8 August 2017
JUDGMENT OF MOORE J
This judgment was delivered by me on 8 August 2017 at 4:30 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar
Date:
MCDONALD v MCDONALD [2017] NZHC 1866 [8 August 2017]
Contents
Paragraph
Number
Introduction ............................................................................................................. [1] Background.............................................................................................................. [5] Family Court decision........................................................................................... [15] Approach on appeal .............................................................................................. [18] Grounds of appeal ................................................................................................. [23] General principles ................................................................................................. [25]
First ground of appeal: Did the Judge fail to consider s 6 of the Act or, alternatively, fail to place appropriate weight on the children’s wishes not to relocate? ................................................................................................................. [30]
Second ground of appeal: Did the Judge fail to properly consider
principle 5(d) of the Act? ...................................................................................... [50]
Third ground of appeal: Did the Judge give sufficient consideration to
Mrs McDonald’s evidence being purely speculative in terms of the financial situation in the event of relocation (contrary to s 4 of the Act)? ....................... [68]
Ground four: Are the relocation orders too uncertain because they do not specify the standard of proof of employment before relocation takes place and there is no contingency if the employment is terminated during any trial period?.................................................................................................................... [75]
Conclusion.............................................................................................................. [83] Result ...................................................................................................................... [84] Other orders .......................................................................................................... [85] Costs ....................................................................................................................... [86]
Introduction
[1] Mr and Mrs McDonald1 are the parents and guardians of two boys.
[2] The parties live in a service town in rural Waikato. They have shared care arrangements. Mr McDonald is unable to work as a result of an injury. Mrs McDonald is employed with a local professional services firm on a modest salary.
[3] Mrs McDonald wishes to move with the boys to Hamilton where her job prospects are considerably better. Mr McDonald opposes their relocation, primarily on the grounds that he wishes his children to be brought up in the rural setting they are familiar with. Both boys have indicated they are not keen to move to Hamilton.
[4] The Family Court made a conditional order; permitting the relocation only if Mrs McDonald provided proof of having secured employment at an annual salary of not less than $60,000 gross by 31 December 2017. Mr McDonald appeals the decision.
Background
[5] The boys, Simon and Christopher2 are aged 12 and 83 respectively.
[6] Mr and Mrs McDonald separated in early March 2013. In the town where they presently live they are well-known. Both boys attend a local school. The parties’ respective parents also live in the area.
[7] At present the care arrangements are that Mr McDonald has care of the boys on alternate weekends and each Wednesday until 7:00 pm. At all other times the boys are in the care of the mother.
[8] Until relatively recently, Mr McDonald was employed in a business in South Auckland, approximately one hour’s drive away. This meant he was required to leave home at about 6:00 am each weekday returning home between 5:00 pm and 6:00 pm.
However, following an accident, Mr McDonald has been unable to work. He is now
1 These names have been fictionalised to protect the identity of the parties.
2 These names have been fictionalised to protect the identity of the parties.
3 Simon was born on 29 September 2005; Christopher was born on 19 August 2009.
in receipt of accident compensation and his prospects of returning to work, at least in the medium term, are bleak.
[9] Mrs McDonald was recently made redundant from her managerial role at a local bank. She has since secured employment but at a very much reduced level of income.
[10] Given the issues engaged in this case it is necessary to examine Mrs McDonald’s qualifications and experience in order to assess her employment prospects.
[11] After leaving school Mrs McDonald started university but struggled with being so far away from home. She did not continue her tertiary studies but, instead, enrolled at the local polytechnic and completed diplomas in business, human resources and marketing. She then commenced working for the bank but took two years off after the birth of Simon to care for him before returning to the bank. She and Mr McDonald bought their own home.
[12] In August 2009 Christopher was born and two years later, in 2011, Mrs McDonald was appointed to a managerial position earning more than her husband before student loan repayments were deducted.
[13] After the parties separated in early 2013 Mrs McDonald continued her tertiary studies towards a business degree which she completed the following year.
[14] In March 2015 the bank made her redundant. She had been on a salary of
$73,000. She now earns an income of $40,000. She would remain in the town if she could find a job which provided sufficient income. However, now that Mr McDonald is receiving accident compensation payments she is the liable parent. On her present salary she is unable to meet the household’s outgoings, including servicing the mortgage and supporting the family. She has been obliged to turn to her parents for financial assistance. Given her experience and qualifications she says it is unlikely she would be able to re-secure comparable employment in the town. It is for that reason, primarily, she seeks to move to Hamilton.
Family Court decision
[15] In a comprehensive and careful judgment delivered on 5 April 20174 Judge Parsons made reference to the relevant provisions of the Care of Children Act 2004 (“the Act”). She emphasised that the welfare and best interests of the children is plainly paramount and that the case centred around what care arrangements and location would best meet the interests of Simon and Christopher. The Judge noted that neither boy wished to move to Hamilton but that if they were to stay in the town they would remain in their mother’s primary care. Such a course would be consistent with the children’s stated preferences and would maintain the boys’ links with their school friends and sporting activities. However, a move to Hamilton, approximately one hour’s drive away, was within commuting distance which would permit the boys to be brought back to spend significant time in the care of their father.
[16] The Judge noted that despite a move to Hamilton being against the boys’ expressed views, she assessed that such a relocation would be in their wider welfare and best interests because it would provide continuity of care with each parent and would support Mrs McDonald as the primary carer through access to more attractive employment opportunities. She would thus be in a position to better provide for the children.
[17] The Judge made new child care orders which were essentially the same as those previously in existence subject to Mrs McDonald confirming by 31 December 2017 she had found employment which was paying $60,000 gross or above. The only condition varied was that in the event Mrs McDonald was able to satisfy the employment condition, she would deliver the boys each Wednesday to their father’s care where they would stay overnight before Mrs McDonald would return them to Hamilton. To facilitate this requirement Mrs McDonald would stay overnight at her
parents’ home.
4 S v S [2017] NZFC 2483.
Approach on appeal
[18] This is a general appeal which, by operation of s 143(4) of the Act and s 75 of the District Courts Act 1947, means the appeal is by way of rehearing. The well- known principles set out in Austin, Nichols & Co Inc v Stichting and Lodestar apply.5
For the appeal to be successful, it is incumbent on the appellant to satisfy this Court that it should differ from Judge Parsons’ decision. However, the Court is required to make its own assessment of the merits of the case and, while it is entitled to adopt the reasons of the first instance decision maker to assist in reaching a conclusion, the conclusion is one for the appellate Court and the weight which that Court places on the reasoning of the first instance Court is a matter properly for the appellate Court.
[19] Duffy J in B v B, commenting on the application of the Stichting and Lodestar
principles in a similar context to the present, put it this way:6
“… I must accept responsibility for determining what is in the best interests of the child. It also means that I should not confine myself to focusing on whether or not the Judge has committed an error of law or some procedural error in reaching his judgment.”
[20] The Act represented a significant reform of the law relating to children in New
Zealand when it replaced its predecessor, the Guardianship Act 1968.
[21] One of the most significant points of difference between the Act and its predecessor was the adoption by the legislature of the practice followed in other jurisdictions of specifying the factors the Judge is required to take into account in carrying out the best interests determination.
[22] The factors are to be found in s 5. Sections (a) to (f) are matters which are required to be considered. Section 5(a) mandates the Court to protect the children’s safety by ensuring the children’s safety is at the core of the Act. The relevant principles
are discussed more fully later in this judgment.
5 Austin, Nichols & Co Inc v Stichting and Lodestar [2007] NZSC 103; [2008] 2 NZLR 141.
6 B v B [2008] NZFLR 1083 at [44].
Grounds of appeal
[23] Ms Jones, for Mr McDonald, brings this appeal on the following grounds, namely that the learned Judge erred in granting a conditional relocation by:
(a) failing to adequately consider s 6 of the Act, or in the alternative failed to place appropriate weight on the children’s wishes not to relocate;
(b) failing to properly consider principle 5(d) of the Act;
(c) failing to give sufficient consideration to the evidence of the respondent being purely speculative in terms of the financial situation in the event of relocation contrary to s 4 of the Act; and
(d) making orders in [102](b)7 which are too uncertain in that:
(i)they do not specify the standard of proof of employment before relocation takes place;
(ii)there is no contingency if the employment is terminated during any trial period.
[24] Before turning to consider these grounds it is necessary to examine the general principles which apply in so-called relocation cases.
General principles
[25] The inquiry requires the Court to undertake an evaluative exercise by reference to the particular child or children and the particular circumstances when determining
what is in the child’s or children’s welfare and best interests.
7 The orders in [102](b) are the parenting orders in the event the conditions for obtaining employment at $60,000 or more are met.
[26] This approach was described in Kacem v Bashir in the following way:8
“[18] The relocation issue raised in this case clearly comes within the reach of s 4(1). Hence the court must regard the welfare and best interests of the two children involved as the first and paramount consideration. By its references to ‘particular child’ and ‘particular circumstances’, s 4(2) underlines the case-specific nature of the inquiry. That inquiry must focus on the particular circumstances of the individual case with no presumption of what the welfare and best interests of the child may require or what influence the s 5 principles may have on that question. Section 4(5) makes it mandatory for the Court to take into account, in a case-specific way, those of the principles specified in s 5 that are relevant. Section 4(5) also emphasises again that the focus must be on the particular child or children and his, her or their particular circumstances. Section 4(6) makes it clear that the s 5 principles are not exhaustive of the matters that may be relevant to the welfare and best interests of the child or children involved. Nor does s 5 limit s 6, which is concerned with the child’s views on the matters at issue.”
[27] These observations confirm the position taken by the Court of Appeal in decisions such as Stadniczenko v Stadniczenko9 and D v S.10 In D v S the Court observed:11
“… It is necessarily a predictive assessment. It is a decision about the future. It is not a reward for past behaviour.”
[28] There, Richardson J considered a number of factors relevant to the exercise of the judgment in such cases:
(a) while a child’s welfare is not the only consideration and freedom of movement is an important value in a mobile society, the child’s welfare is the first and paramount consideration;
(b)the choice of residence and relocation may be effected by the nature and duration of the existing care arrangements. In some cases the duration of the existing care arrangement and the greater degree of change proposed may require greater weight to be accorded to the status
quo;
8 Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1, [2010] NZFLR 884.
9 Stadniczenko v Stadniczenko [1995] NZFLR 493.
10 D v S [2002] NZFLR 116.
11 At [33].
(c) all aspects of welfare must be taken into account;
(d)the Court must deal with the matter on a case-by-case basis, personalised assessment to meet the welfare of each particular child.
[29] It is against the background of those principles that I now turn to consider the individual grounds of appeal.
First ground of appeal: Did the Judge fail to consider s 6 of the Act or, alternatively, fail to place appropriate weight on the children’s wishes not to relocate?
[30] Section 6 of the Act requires the views of the child, in proceedings such as the present, to be taken into account by the Court. Ms Jones complains that the Judge failed to adequately consider this provision or, alternatively, failed to place appropriate weight on the children’s wishes not to relocate.
[31] This section must be read in conjunction with s 4 of the Act which mandates that the child’s welfare and best interests must be first and paramount.
[32] It is noteworthy that s 6 refers to the “child’s views” rather than the “child’s wishes” as referred to in the notice of appeal.
[33] I agree with Ms Hunter, for Mrs McDonald, that the term “child’s views” invokes broader considerations than “child’s wishes”. This proposition is well supported in the case law and commentaries.12 As Randerson J observed in C v S the expression “views” may cover a wider range of matters than “wishes” including an assessment of the advantages and disadvantages of being in the care of one party or another. “Wishes” may be of less assistance to the Court than “views”, particularly if the child’s wishes vary over time or are equivocal. There are recognised risks associated with “wishes” being prompted by an over anxious parent or a child
responding to a question he or she perceives is expected.
12 C v S [2006] 3 NZLR 420, (2006) 25 FRNZ 125 (per Randerson J); Moore v Moore [2014] NZHC
3213, [2015] 2 NZLR 787 (per Brown J); Patrick Mahoney (ed) Brookers Family Law – Child
Law (online looseleaf ed, Thomson Reuters) at [CC6.02A].
[34] Mr Blair, the lawyer for the children, provided an updated report for the purposes of the appeal. It is apparent from his report that both boys know and understand the reason their mother wishes to move to Hamilton and are aware that if the orders are made Wednesday nights would be spent with their father, rather than just evenings as was previously the case. Mr Blair explored the reasons for the children’s reluctance to move. Predictably this has its origins in Simon’s comfort with the status quo and the friendships he has forged at school. However, he exhibited some insight into the circumstances of his parents with his father not working and his mother no longer receiving child support payments. He knew that his mother’s request to move to Hamilton was so that she could better provide for her family. Christopher also recognised his mother’s parlous financial position albeit, unsurprising given his age, viewed from a more egocentric perspective than his older sibling. His school friendships were valued by him but he understood the reasons why a move to Hamilton was being proposed.
[35] Mr Blair submitted that what could be distilled from the boys’ instructions was a preference to remain in the primary care of their mother which had been the arrangement since their parents separated. Mr Blair observed, as did Judge Parsons, that it would have been a more concerning dynamic had Simon and Christopher expressed views in support of a move to Hamilton because this would have had no foundation in experience and might have suggested a more sinister maternal influence rather than a sincere expression of opinion.
[36] It is apparent from a plain reading of Judge Parson’s decision that she did take into account s 6 considerations; indeed expressly so. The Judge addressed this directly when she said:
“A move to Hamilton is against the boys’ expressed views, but is assessed to be in their wider welfare and best interests in that it provides a continuity of care with each of the parents, and supports their mother and primary caregiver in being afforded the opportunity to obtain better employment opportunities and be able to best provide for the boys.”
[37] It also cannot be overlooked that the Judge met with the boys who she described as speaking warmly of their parents and who were a delight to speak to.
[38] In addition to the extract reproduced above, Judge Parson’s decision is peppered with references to the views of the children. Indeed five paragraphs of the judgment are specifically devoted to this issue under the heading, “Children’s position”.
[39] It is clear that both children were provided with a reasonable opportunity to express their views. Furthermore, I am amply satisfied that the Judge took those views into account. Neither am I satisfied that the Judge failed to place appropriate weight on the children’s wishes not to relocate. This is a matter which Judge Parsons specifically confronted in several different parts of her decision. That she made a decision which was contrary to the children’s preferences cannot be translated into a criticism she failed to adequately consider their views or place appropriate weight on their wishes. Her foremost consideration, as mandated by the Act, was to give paramountcy to the children’s welfare and best interests. And this she did.
[40] As Priestley J said in Brown v Argyll:13
“[49] The s 6(2)(b) requirement for the Court to take the child’s views into account does not mean such views must be followed or are in any way determinative. Such views may well be in clear conflict with the Judge’s s 4 assessment, and in particular conflict with the s 3(1)(a) purpose of prompting a child’s welfare, best interests and development. 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.”
[41] Under this heading, Ms Jones is also critical that Judge Parsons took into account the wishes of the boys in respect of the care and conduct arrangements but not in respect of the relocation. That submission is meretricious for the following reasons.
[42] First, given the s 4 mandate, it was open to the Judge to make different determinations some of which were consistent with the boys’ expressed views and others which were not.
[43] Secondly, the boys had experienced a change in their contact arrangements with their father between the time of the judicial settlement conference and the
13 Brown v Argyll [2006] NZFLR 705.
hearing. Indeed, the Judge made specific reference to this when she said that the boys had had the benefit of experiencing some different care arrangements before the hearing. Thus, I agree with Ms Hunter that these boys, aged 12 and 8, had experienced, first hand, the contact arrangements. As a consequence they were in a position to make a considered judgement on that issue and express their views. That was not the case in respect of the relocation issue which Mr Blair accepted was a difficult and new construct for them to conceptualise.
[44] Furthermore, I do not accept Ms Jones’ submission that the quality of contact is likely to diminish if relocation is permitted. In support of that submission she observed that it was “quantitatively different” to spend a weekend visiting a town to living there and knowing the environment. She submitted that the boys’ links with their father’s community would diminish by degrees commensurate with the increase of their links to Hamilton. I reject this submission for several reasons.
[45] First, the evidence reveals that Mr McDonald was not an assiduous attendee at school events involving his children despite there being ample opportunity, particularly after his injury, to do so. There is also evidence that despite having the opportunity to maintain contact with his sons via Skype when they were not in his care he has seldom, if ever, availed himself of this facility.
[46] Secondly, if relocated, the children would, in reality, spend more time with their father than under the previous orders. For example, instead of spending just the first part of a Wednesday evening with Mr McDonald, the orders made by Judge Parsons would have the effect of the boys spending not only the evening but the whole night and the following morning before their mother collected them and returned them to Hamilton.
[47] And while I agree with Ms Jones that the boys’ links with their father’s connections and his home town will erode as new friends and allegiances are formed in Hamilton, that, to some extent, is an inevitability of boys maturing and seeking increasing independence from parental influences.
[48] I also do not accept that the Judge placed too much weight on the financial dynamic. It is a central factor which cannot be overlooked. Neither parent has much, if anything, in the way of disposable income. Since Mr McDonald’s accident, Mrs McDonald has been the liable parent on a much reduced salary. She is unable to maintain the family home without the financial assistance of her parents. It is apparent that both boys, particularly Simon, are conscious of the affects the financial strain has on their mother. In terms of the welfare and best interests of the children the Judge was correct to give this factor considerable prominence and weight.
[49] For these reasons I am satisfied that Judge Parsons did not err in respect of any of the complaints advanced by the appellant under this first ground of appeal and it must fail.
Second ground of appeal: Did the Judge fail to properly consider principle 5(d)
of the Act?
[50] Although this ground of appeal focuses on principle 5(d) of the Act, Ms Jones’ submission appears to be somewhat broader and encompasses other welfare and best interest principles under s 5. For that reason it is helpful to set out s 5 in full:
“5 Principles relating to child’s welfare and best interests
The principles relating to a child’s welfare and best interests are that— (a) a child’s safety must be protected and, in particular, a child
must be protected from all forms of violence (as defined in
section 3(2) to (5) of the Domestic Violence Act 1995) from all persons, including members of the child’s family, family
group, whānau, hapū, and iwi;
(b) a child’s care, development, and upbringing should be primarily the responsibility of his or her parents and guardians;
(c) a child’s care, development, and upbringing should be facilitated by ongoing consultation and co-operation between his or her parents, guardians, and any other person having a role in his or her care under a parenting or guardianship order;
(d) a child should have continuity in his or her care, development, and upbringing;
(e) a child should continue to have a relationship with both of his or her parents, and that a child’s relationship with his or her
family group, whānau, hapū, or iwi should be preserved and strengthened;
(f) a child’s identity (including, without limitation, his or her culture, language, and religious denomination and practice) should be preserved and strengthened.
[51] These principles were described by Priestley J in Brown v Argyll in the context of a relocation case when he said:14
“The s 5 principles which I have described as contemporary social norms, must be considered as part of the s 4 assessment (s 4(5)(b)). The mandatory stipulation in s 5(e), (protection of a child from violence at the hands of family group, whanau, hapu, or iwi members), cannot be read down or ignored. But the s 4 assessment will not be made any easier by some formulaic consideration of s 5 principles. Certainly the principles must be considered, but such consideration will not necessarily clarify the decision-making process. In many cases before Courts, the laudable norms embodied in the principles become casualties to circumstances or parental conflicts. Parents, despite the s 5(a) exhortation, are unable to agree on arrangements for a child. The vagaries of life including social and economic factors will frequently disrupt s 5(b) continuity and arrangements. Conflict will frequently bedevil the s 5(c) ideal consultation and co-operation. Death, uninterest, geography, emigration, or imprisonment will counteract the s 5(d) principles. …”
[52] Priestley J considered the case law and principles in relocation cases. In the course of that exercise he referred to the Court of Appeal’s decision in D v S (Relocation), adopting the following observations:15
“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 the parents’ 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 their mother (Stadniczenko v Stadniczenko at pp 152-153; pp 500-501).”
[53] The Court of Appeal also observed, on the question of nature and duration of existing custodial arrangements:16
“The choice of residence and relocation may be affected by the nature and duration of the existing custodial arrangements. Usually, it would be artificial
14 Brown v Argyll, above n 14, at [35].
15 D v S, above n 11, at [47].
16 At [35].
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 to the status quo.”
[54] Commenting on this passage in Brown v Argyll Priestley J observed:17
“This last sentence is very far from a stipulation that the status quo should be accorded considerable weight. Rather, the sentence states the obvious, that the status quo goes into the scale along with the duration of existing arrangements and the degree of change proposed.”
[55] And:18
“The status quo should not be elevated into a presumption or dominant factor to weigh in the balance. Nonetheless, this s 5(b) principle needs to be assessed in the knowledge that a change in arrangements flowing from relocation will inevitably impact some degree on a child’s care, development, and relationships.”
[56] The key consideration in relocation cases must focus on the particular child’s contact with, and relationship with, the “stay-behind parent” and as such, when considering the principles relating to the child’s welfare and best interests the focus is likely to be on principles 5(b), 5(c), 5(d) and 5(e).
[57] In the present case, without adopting a formulaic approach to this assessment, principle by principle, the central issue in a welfare and best interests evaluation requires the Court to consider the impact relocation will have on the child’s relationship with the left behind parent, wider family, friends and activities and the wider environmental connections the child may have with the community it is proposed he/she will be moving from. Essentially, this is what the decisions cited above are authority for. The weightings attributed to the various s 5 principles will vary depending on the welfare and best interests of the child in his or her particular circumstances.19
[58] It is inevitable that any relocation will have consequences in terms of the dynamics of the relationship between the child or children and the left behind parent.
But that does not necessarily mean that the quality of the contact and care will suffer.
17 At [54].
18 At [55].
19 Care of Children Act 2004, s 4(2).
That assessment must be referable to the particular child and his/her particular circumstances.
[59] In this case, having regard to those principles, I am satisfied that the boys’
relocation to Hamilton is in their welfare and best interests for the following reasons.
[60] First, as already discussed, under the proposed arrangements the children will, in fact, spend more time in the care of their father.
[61] Secondly, the evidence supports Ms Hunter’s submission that Mr McDonald is not a particularly active or engaged parent in the boys’ schooling and sporting activities. This is not a criticism of Mr McDonald who is plainly a caring and responsible parent. It is simply a recognition of the fact that if the boys’ schooling and sporting activities are to be undertaken in Hamilton Mr McDonald’s dislocation will not materially affect the status quo in these respects.
[62] Thirdly, both sets of grandparents will remain with Mr McDonald in the same town. The shared care arrangements, presently in force, will ensure continuity with those important familial connections.
[63] Fourthly, the proposed/conditional shared care arrangements maintain a pattern which the boys have been familiar with for several years.
[64] Fifthly, Mr McDonald’s expressed suspicion of city life. His promotion of the benefits of being brought up in a rural aspect cannot be dismissed. However, they are Mr McDonald’s subjective views as to what is in the best interests and welfare of his sons. In that regard they deserve to be given comparable weight to Mrs McDonald’s personal aspirations and her expressed dislike for the town she was brought up in and her wish to move to an urban environment. If relocated the boys would be the beneficiaries of both these environments; access to a strong family-based rural experience together with the benefits of a broader range of opportunities which are available in a city.
[65] Sixthly, there is the question of Mrs McDonald’s ability to find suitably remunerative employment. In analysing this factor it is necessary to consider it in the context of the paramountcy of the welfare and best interests principle and not in the context of Mrs McDonald’s personal and professional aspirations although the two may coincide. With Mr McDonald unable to support the family economically that responsibility has fallen on Mrs McDonald. Her professional experience and qualifications have shown that she is well capable of securing and maintaining well paid employment at a managerial level. It is also evident that since being made redundant, despite attempts to find comparable employment, she has been unable to do so. The consequence is that if she was to remain she could no longer, without the continuing support of her parents, service the home’s mortgage and maintain the household. The house would have to be sold and she would be required to obtain rented accommodation while continuing to bear the primary responsibility of maintaining the household, including the needs of two growing boys. With her background, Mrs McDonald has the advantage which others, less qualified, do not. She can move to a nearby city and find employment at a level of remuneration which will relieve the family of the family burdens and stresses which are presently felt. This necessarily operates in each child’s welfare and best interests.
[66] Finally, Mr Blair is broadly supportive of relocation. He observes that it is a fortunate feature of the case that any relocation will cause little, if any, disruption to the children’s care arrangements because the boys have been in the primary care of their mother and the orders made by Judge Parsons ensure these arrangements will continue. Mr Blair also observes that in terms of s 5(d) a change of schools, exposure to new friendships and a change in the boys’ living environment does not necessarily constitute a lack of continuity in their upbringing. Both boys will have the same important people in their lives, exposure to the same principles, the same aspirations and a continuation of their time in the two different households provided by their parents. Furthermore, Mr Blair does not accept the boys require continuity in their upbringing as “small town boys”. Neither does he accept that they should be shielded from living in the city, noting that it is not necessarily a desirable factor of continuity of care and upbringing which requires them to stay in a small town as opposed to moving about an hour’s drive away to Hamilton.
[67] For all of these reasons I am satisfied that this ground of appeal, too, must fail.
Third ground of appeal: Did the Judge give sufficient consideration to Mrs McDonald’s evidence being purely speculative in terms of the financial situation in the event of relocation (contrary to s 4 of the Act)?
[68] To some extent I have already discussed this question. Ms Jones did not develop this point to any great extent in her submissions. Essentially, her argument on this point is that Mrs McDonald’s motivation to shift is adult centric and whilst her personal and professional ambitions may be laudable they need to be placed in the context of the evidence that she has always wished to move from the town she has lived in since she was a child. It is for that reason, rather than an ambition to better her children’s lives, that she wishes to move to Hamilton. Furthermore, an incident of that motivation has been the lack of financial information available to the Court and what material has been provided is inadequate.
[69] While I accept that there is a speculative element to what is being proposed, I am of the view that this reflects the reality of Mrs McDonald’s situation. She is in something of a “Catch 22” in that she has been unable to pursue career opportunities in Hamilton or resolve questions of accommodation until the Courts have made a final determination.
[70] Furthermore, Judge Parsons did have some financial information before her. The Court had evidence of Mrs McDonald’s weekly mortgage payments. There was evidence in respect of rental options in the Hamilton suburbs she was contemplating living in. There was evidence of the value of her present home and the cost of comparable properties in Hamilton.
[71] The Judge also had evidence of Mrs McDonald’s previous salary at the bank as well as evidence of her present remuneration.
[72] This evidence was sufficient to inform Judge Parsons of the relevant financial considerations. Indeed, she referred to each of these items in her judgment.
[73] Notably Ms Jones does not suggest what other financial information should have been adduced by Mrs McDonald.
[74] For these reasons I am satisfied that this ground, too, must fail.
Ground four: Are the relocation orders too uncertain because they do not specify the standard of proof of employment before relocation takes place and there is no contingency if the employment is terminated during any trial period?
[75] The submission in respect of the standard of proof may be dealt with in short order. Notions of standard of proof have no application in this context. Judge Parsons’ relocation order directed that:
“[103] In the event a position for Mrs McDonald is not found and confirmed that is paying $60,000 gross or above by 31 December 2017, the issues of relocation will expire and the [parenting orders] set out … above will continue.”
[76] This was a novel and inventive conditional order designed to ensure that Mrs McDonald’s present economic difficulties were capable of being ameliorated by relocation and, if not, there would be a return to the status quo. This order was designed to ensure that Mrs McDonald would not only have the opportunity within a specified time to obtain appropriate employment but also ensure there was some level of flexibility in the arrangement should that not occur.
[77] Presumably, proof that the conditions in [103] had been satisfied could be proffered in various forms and to different parties. One might imagine that this would in the form of a letter of confirmation dated before 31 December 2017 from her employer that Mrs McDonald had secured employment at a figure in excess of $60,000 gross per annum.
[78] However, to the extent that the judgment is silent on this point it is open to me to make more explicit orders for the avoidance of doubt. Accordingly, I direct that for the purpose of satisfying the conditional requirement contained in [103] of Judge Parsons’ decision, Mrs McDonald, before 31 December 2017, is to file an affidavit deposing to the fact that she has met the conditions contained in [103] of Judge
Parsons’ decision. The affidavit is to contain proof of her gross annual salary and the name and details of her employer.
[79] That affidavit is to be filed in the Family Court at Tauranga and served on
Mr McDonald (or his solicitors) and on Mr Blair, lawyer for the children.
[80] A further criticism is that Judge Parsons’ decision contains no contingency should the employment be terminated within the 90 day trial period. Given the evidence of Mrs McDonald’s excellent work record and her skills and qualifications the Court has reasonable confidence that the risk of this concern eventuating is not high. I have considered whether, in the unlikely event that Mrs McDonald’s employment is terminated during or before the expiration of the 90 day period, leave should be granted for Mr McDonald to seek further orders. I am of the view that such a course is appropriate in these circumstances. To do otherwise might be to render nugatory the spirit and effect of Judge Parsons’ order if Mrs McDonald’s employment is not enduring.
[81] Accordingly I grant leave to Mr McDonald to apply for orders varying the directions contained in [102](b) in the event that any employment Mrs McDonald obtains in Hamilton is terminated within or at the expiration of the 90 day trial period.
[82] I am thus satisfied the fourth ground of appeal must also fail.
Conclusion
[83] For the reasons given above I am satisfied that each of the grounds of appeal must fail. I am satisfied that Judge Parsons did not err in respect of any of these matters. Furthermore, I am independently satisfied, for the reasons explored above, that the orders made were both appropriate and correct having regard to the principles of the Act.
Result
[84] The appeal is dismissed.
Other orders
[85] As already discussed I make the following further orders:
(a) For the purpose of satisfying the conditional requirement contained in
[103] of Judge Parsons’ decision, Mrs McDonald, before 31 December
2017, is to file an affidavit deposing to the fact that she has met the conditions contained in [103]. The affidavit is to contain proof of her gross annual salary and the name and details of her employer. That affidavit is to be filed in the Family Court at Tauranga and served on
Mr McDonald (or his solicitors) and on Mr Blair, lawyer for the children.
(b)I grant leave to Mr McDonald to apply for orders varying the directions contained in [102](b) of Judge Parsons’ decision in the event that any employment Mrs McDonald obtains in Hamilton is terminated within or at the expiration of the 90 day trial period.
Costs
[86] In the event costs are sought I direct counsel to consult with a view to filing a consent memorandum. In the event that agreement is not possible counsel are to file
memoranda within 30 working days of the date of this judgment.
Moore J
Solicitors/Counsel:
Ms Jones, Mt Maunganui
Ms Hunter, Thames
Mr Blair, Tauranga
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