Moreton v Baxter
[2020] NZHC 414
•6 March 2020
EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS].
NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION,
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IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CIV-2019-419-000292
[2020] NZHC 414
BETWEEN [SEAN MORTON]
Appellant
AND
[ZARA BAXTER]
Respondent
Hearing: 5 March 2020 Appearances:
S Jefferson QC for Appellant G O’Brien for Respondent
D A Bogers for the Children
Judgment:
6 March 2020
JUDGMENT OF VENNING J
This judgment was delivered by me on 6 March 2020 at 11.30 am, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors: Haigh Lyon, Auckland
Garth O’Brien & Associates, Te Awamutu Bogers Scott Shortland, Hamilton
Counsel: S Jefferson QC, Auckland
[MORTON] v [BAXTER] [2020] NZHC 414 [6 March 2020]
Introduction
[1] In a judgment delivered on 4 October 2019 in the Family Court at Hamilton Judge D R Brown declined Mr [Morton] (the father’s) application for an order that his and [Ms Baxter] (the mother’s) two children, J and V, be relocated to [location A], Western Australia.1 The father seeks leave to appeal against that decision.
Application for leave
[2] Section 143 of the Care of Children Act 2004 (the Act) applies. As the proceedings were under s 46R of the Act2 the father may appeal to this Court against the decision only with leave of the Court.
[3] Counsel for the mother, Mr O’Brien submitted leave should not be granted. The issue of relocation has been brought up by the father three times already.3 The children have been involved in Court proceedings for seven years.
[4] While accepting that the issue of location and education are important matters, Mr O’Brien submitted that the application was pursued for the benefit of the father rather than the children.
[5] He submitted that there were no long term implications for the children. J will turn 15 this year, and in just over a year he will not be under the jurisdiction of the Family Court. V is 12 this year. She has no strong desire to relocate to Australia. There are no long term implications for her. He referred to DKP v MJM where the Judge had declined leave to appeal on a relocation issue.4
[6] Each case must of course turn on its own facts. There were a number of factors in DKP v MJM that are not present in this case. In DKP v MJM the decision had been to allow relocation and the mother had already taken a number of steps in reliance upon the decision. The application for leave to appeal was also filed out of time. The
1 [Morton v Baxter] [2019] NZFC 8123.
2 Section 46R deals with disputes between guardians. Section 16 confirms the matter in issue came within s 16(2), an important matter affecting the children.
3 Original Hague Convention case, 24 April 2014 (Judge Riddell); Relocation, 30 July 2015 (Judge Collins); Relocation/Schooling, 4 October 2019 (Judge Brown).
4 DKP v MJM [2017] NZHC 109.
issues before the Family Court in this case were matters of importance to the children, namely whether they were to be relocated to Australia to be with their father and to be educated there. The issues were fundamental in terms of the consequences for both parents and the children. Relocation of both children and a change in their education would be a significant matter for all parties. One of the children, J, supported the relocation and change of school.
[7] Given the importance of the issues to the children in this case I consider it appropriate to grant leave to appeal, particularly where, as here, there is no further right of appeal.5
Background
[8] Judge Brown took as a history of the relationship the record from an earlier proceeding before Judge Collin in July 2015:6
[17] Mr [Morton] is aged [over 45] and is self employed. His principal business is [industry deleted] with his assets being primarily in [the United States]. In addition to [the USA business], Mr [Morton] has an interest in an internet based business with a New Zealand component which he is able to run internationally. Mr [Morton] has no business interests wholly within New Zealand. He travels to the United States several times a year to oversee his [business]. Mr [Morton] acknowledges that he currently has no business interests in [location A] Australia but does have intentions of commencing business there. There are no significant employment or economic factors in Mr [Morton]’s desire to relocate with the children to [location A].
[18] Mr [Morton] describes himself as an international citizen. He was born in [the UK], his parents are Mr [Morton] (snr) who is Italian and [Gale Cooper], whose father was originally from [Australia] but at some point, which is unclear from the evidence, moved to South Africa.
[19] When Mr [Morton] was approximately aged ten, his parents separated. It appears that Mrs [Cooper] unilaterally removed him and his sister from Italy and relocated with them to South Africa. The unilateral move and the loss of contact with his father was, and appears to remain, a painful experience for Mr [Morton]. This is an issue mentioned by him several times in the evidence.
[20] Later Mrs [Cooper] met [Alfred Cooper]. They married in [the 1980s] and now reside in [location A]. Also resident in [location A] is Mr [Morton]’s sister, [Lucy Morton], who has one son [Neil] aged seven.
5 ACCS v AVMB [2006] NZFLR 986; and SFB v JEBH [2015] NZHC 2897; Care of Children Act 2004, s 145(1)(a).
6 [Morton v Baxter], above n 1, at [3].
[21] At some stage Mr [Morton]’s father married [Rhea Townsend]. They continued to remain in Italy. Mr [Morton]’s father died in 2008 and his stepmother Ms [Townsend] on [date deleted] 2014.
[22] In about 1989 Mr [Morton] moved to Australia and remained there until about 2004.
[23] Ms [Baxter] is aged [over 40] and was born and raised in the Waikato District of New Zealand. Ms [Baxter] is of [iwi deleted] descent and has through her family, strong attachments to the [location deleted] Marae.
[24] [Zara Baxter]’s parents are [Clive Baxter] and [Tahlia Baxter], both aged [over 70]. They live in [town A], about six kilometres from [location B]. They have four children, [details of nine extended family members deleted].
[25] Ms [Baxter] undertook university studies and as a consequence of the qualifications she has, was able to obtain good employment. This has provided her with overseas opportunities in managerial positions.
[26] In 2000 Ms [Baxter] was living and working between [two overseas countries]. She then obtained employment in [Australia] and moved there. In January 2001 she met Mr [Morton] who was also at that time in [Australia].
[27] In January 2004 Mr [Morton] and Ms [Baxter] left Australia and moved to the United States of America. The move was initiated by Ms [Baxter] who had been offered an opportunity to undertake a six month assignment with [employment details deleted]. The move was based on her ability to earn a higher salary as well as the opportunity it provided for advancement within [the employer’s company]. At the time Mr [Morton] was not employed. It was whilst they were resident in the United States that [J] and [V] were born.
[28] Various members of Ms [Baxter]’s family made visits to the United States [between 2005 and 2009]. Members of Mr [Morton]’s family made visits to the United States [over the same time period].
[29] It is common ground that the parties discussed leaving the United States to live in Australia and in New Zealand. Together the parties formulated what they referred to as a three year plan, which was based on discussions that Ms [Baxter] had had with [a professional athlete], with whom she had an acquaintance. There is no dispute that the plan agreed was that the family would leave the United States and settle in New Zealand for a three year period, followed by a further move to [location A] Australia for another three year period. At the end of six years the parties were open as to what the next step would be, with the options including a return to America but with no final decision having been made. There is no dispute that there was no particular reason or logic in agreeing to first settle in New Zealand and then in Australia. It could just well have been the other way around, although several witnesses in the Hague proceeding noted Mr [Morton]’s love of rugby and his desire to be in New Zealand in time for the 2011 Rugby World Cup.
[30] The undisputed reason for the formation of the plan was to ensure that the children could spend time living in close proximity to both maternal and paternal families and so they could experience living in both New Zealand and Australia. Acting upon the plan, the parties moved to New Zealand, arriving
on [date deleted] 2011. They moved immediately to the [town A] area and quickly became settled, with both parents and children becoming involved in school, sporting, leisure and cultural pursuits. In October 2012 the family moved into the home of Ms [Baxter]’s parents where they were resident at the time of their separation on [date deleted] 2013.
[31] Following the separation Mr [Morton] rented a home in [town A] a short distance from the home of the [Baxter]s and then moved into rental accommodation in [location B] where he continues to reside. By agreement dated 9 January 2013, the parties reached a shared care arrangement for the children which, as previously stated, has continued almost without alteration since that time.
[32] From the outset Mr [Morton] was clear that the agreed plan to move to [location A] Australia should occur notwithstanding the separation. It was his view that the plan was not contingent on the status of the parties’ relationship, but was based upon a mutual understanding as to the importance of the children being exposed to both families and both cultures.
[9] Counsel for the father noted the summary was historical and was inaccurate in some areas, for example, the father was five years old, not 10 years old when his parents separated but did not suggest the errors were of particular consequence in the context of the appeal.
[10] Judge Brown then went on to update and summarise the current situation of the parties and the children. Again the father takes no particular issue with that summary as follows:
Situation since Judge Collin’s judgment
[10] The parties have observed Judge Collin’s decision as a two/two/five/five division of the children’s time. The children’s term and Christmas holidays are divided. Mr [Morton] has generally taken the children to [Australia] during his school holiday time but on some occasions he has taken them elsewhere (USA). The travel can be burdensome and stressful.
[11] Mr [Morton] lives in a three bedroom apartment near [location deleted]. One of the bedrooms is utilised as an office (and possibly a guest bedroom). The children therefore share the second bedroom which is an issue of considerable tension for Ms [Baxter] who believes that their increasing ages and their continuing tendency to fight means they should have their own rooms.
[12] Ms [Baxter] lives near [town A] in her own home on a large piece of (formerly family) land. The children have their own rooms in her house.
[13] Ms [Baxter]’s precise working situation was not the subject of any focus. She is unarguably a talented and intelligent woman with an impressive employment history extending over several countries. Ms [Baxter] implied that she was about to change to working on a fulltime basis.
[14] Mr [Morton] is a [job deleted]. I have no detail of his work. It extends to the United States to which he travels on occasion. Mr [Morton] would like to develop business interests in Western Australia but says that he has been prevented by his lack of a physical presence there. Mr [Morton]’s employment is plainly lucrative.
[15] [J] is in his second year at [school C]. Academically he is the first quartile of students at the School. This places him in an accelerate group who are addressing NCEA in two rather than the normal three years. At hearing the parties differed as to how well he was doing. From Mr [Morton]’s perspective
[J] is doing poorly. His essential grades are Cs and Bs. His marks are generally below the median. From Ms [Baxter]’s perspective, [J] is doing well. She points out that the boy is being assessed within the top quarter of the school’s pupils. Objectively she says, he has already achieved NCEA passes in 23 subjects, some with merit.
[16] I have only a hazy sense of [J]’s academic progress. The three reports of 2018 generally do show a scatter of Cs and Bs, with some improvement in the end of year report. The marks achieved against the median follow a similar pattern. One report produced for 2019 lacks grades or numerical marks. A summary of [J]’s NCEA credits shows nine credits, of which six are “with merit”.
[17] The sense of the reports is of a generally consistently cooperative boy who has occasional lapses of self-organisation.
[18] [J] is a member of the [school C] Maori tutor group system. This group meets its Maori tutor every morning. The group observes tikanga Maori. Karakia and whanaungatanga are practised. My sense from the evidence is that [J] is becoming proficient in basic Maori language and is developing worthwhile skills of ceremonial competence. [J] is a volunteer tutor to younger Maori groups.
[19] [J] is active in sport. He pursues [sporting activity deleted] in the summer and [sporting activity deleted] in the winter.
[20][J] chose Te Reo Maori as a back up subject this year.
[21] [J] is not involved in kapa haka at present, having been unable at an earlier time to fully participate because of a clash with another subject.
[22] [V] has attended [school D] throughout her school life and is now in year six. She is said by her mother to have had “a good year academically” and to have received “multiple certificates for excellence in 2018”, including an award for kapa haka excellence. She has been part of the school’s senior kapa haka group [date deleted]. She has been kaea (female leader) of the group. According to Ms [Baxter], [V] participates in all sports and it is common for her to be placed in the top three for [sporting activities deleted]. Like her brother, [V] competes in [sporting activity deleted] in the summer and [sporting activity deleted] in the winter.
[23] The children’s parents are both powerful personalities. They comport themselves with politeness in their interchanges but the interchanges are intense. They are both realistic, thoughtful and generous to their children. It would be rare, if not unknown, for the Family Court to hear two parents more able to answer questions about their children with more honesty, even if at the expense of their case, than these parents did.
The appellate approach
[11] In D v S the Court of Appeal set out the approach this Court should take on an appeal such as this:7
An appeal to the High Court from the Family Court is an appeal by way of rehearing. Whilst the High Court will naturally give weight to the views of the specialist court and may in some cases think it best to remit the case for reconsideration, it is fully entitled to substitute its views on questions of fact, including the issue of what is in the best interests of the child or children concerned. There is no rule of law requiring the High Court to defer in these respects to the Family Court even in a finely balanced case.
Appeal points
[12]In support of the appeal the father raises the following points:
(a)The Judge failed to attribute sufficient weight to the parties’ undisputed agreement to raise their children with equal exposure to family members and cultures that form their identities;
(b)The Judge failed to attribute sufficient weight to the need to preserve and strengthen the facets of the children’s identities which can only be established and enhanced by relocation to Australia at this time;
(c)The Judge placed too much weight on the preservation of the children’s Maori culture at the expense of other facets of their culture and identity;
(d)The Judge did not address or evaluate the possible effect of the children’s loss of relationship with their father which will be caused by the distance between them;
7 D v S [2003] NZFLR 81 (CA) at [18].
(e)The Judge failed to weigh or evaluate whether the children’s welfare and best interests were better served by remaining in New Zealand in the sole care of their mother, or relocating to Australia to live in the sole care of their father;
(f)The Judge failed to attribute weight to the views of one of the children, M, who expressed a wish to relocate.
The parties’ agreement
[13] Mr Jefferson QC submitted that the Judge had dismissed the philosophy and underlying rationale lying behind the agreement the parties had made regarding their intended living arrangements and did not appear to attribute any weight to it at all. The Judge had overlooked that the father was advocating for the children’s lives to be enriched by a new experience which would expose them to a different side of their culture if they were relocated to Australia. He emphasised that the father’s view was that the best interests of the children were at the forefront of the parents’ minds at the time agreement had been made and that remained the case.
[14] Mr Jefferson argued the Judge had failed to deal with or analyse why the parties had agreed that their children ought to be immersed in all facets of their identity and culture and whether that agreement might still be relevant and beneficial. He submitted that in the circumstances of the case, particularly where the parents and the children had the opportunity to live internationally and engage with the parties’ own country’s origins, it was wrong for their mother to have effectively unilaterally brought the agreement to an end.
[15] The Judge dealt with the issue of the parties’ agreement at paras [37] to [39] of the judgment:
[37] Mr [Morton] deeply and actively believes that it is wrong that the three year New Zealand / three year Australia agreement pursuant to which the family came to New Zealand should not have been honoured. He is not dissuaded by the arguable proposition that the agreement was by implication conditional on the family being together or by the family law proposition that enforcement of such an agreement is dependent on the best interests of the child.
[38] Mr [Morton]’s case is expressed vigorously and intricately on the proposition that it would be wrong for the children to not be given the opportunity which clearly exists for them to live fully within, and absorb, the Australian half of their culture, particularly now that the New Zealand Maori side is firmly embedded. Adequate experience of the children’s Australian culture is not possible, in Mr [Morton]’s belief, short of their living in Australia fulltime. Mr [Morton]’s distress on these issues is linked to his own childhood experience of effectively being stolen away from his father and his father’s country, Italy, and as a result never being able to recapture human connections and the culture of one side of his family of origin and his country.
[39] I am completely unconvinced that this is an issue for [J] and [V]. They have not been stolen by one parent from the other. They have an ongoing relationship with Australia. In my view they are not in any way alienated from Australia and I do not see that any case has been established that there will be long term emotional personal damage to them if they do not live there.
[16] While Mr Jefferson submitted the father was not seeking to enforce the agreement, in my judgment, that is actually what he seeks to achieve by this appeal.
[17] The father initially sought to remove the children back to America (rather than Australia). That application was declined by the decision of Judge Riddell on 24 April 2014. The father then sought to relocate the children to Australia. That application was again declined by Judge Collin in September 2015.
[18] As Judge Brown observed, it is relevant that the circumstances in which the “agreement” were made are not the circumstances that subsist now. Once the parties separated in December 2013 the agreement was never going to be implemented. The fundamental basis of the agreement was that the parties would be living together as a family. That was no longer the case after the separation. They were never going to live as a family in Australia. When the parties separated, the children were living in New Zealand. The issue for the Court throughout on all the various applications has been to focus on what was in the best interests of the children in light of those changed circumstances.
[19] Judge Brown was correct to consider the relevance of the agreement in the context of the overriding s 4 consideration.
[20] The Judge’s reference to the children not having been stolen has to be seen in context. It was in the context of his reference to the father’s situation in [38] of the
judgment. It is apparent from that paragraph the Judge was aware of the father’s argument.
[21] The Judge was aware the father’s case was that it was impossible for the children to absorb Australian culture without living full time in Australia. The Judge understood that argument but considered that they could do so by spending time in Australia with their father and his relatives short of living there.
[22] But even if the Judge could be said to be wrong in coming to that view, he correctly identified, at [40], that the issue for the Court was to determine on best interest considerations, which country the children should live.
The need to preserve and strengthen the facets of the children’s identities
[23] Mr Jefferson next submitted there was a danger that the children’s Maori culture and identity might be elevated to supersede all other aspects of their culture and identity.
[24] He made the point that the Act requires preservation and strengthening of the children’s culture.8 He submitted the Judge had failed to analyse how the Australian aspect of their culture could be preserved and strengthened. The father identifies as Australian and considers [location A] to be his home. His remaining family reside there.
[25] The children have a strong cultural connection with their Maori heritage and New Zealand. That is inevitable, given the time they have spent here and given their mother’s relationships and connection with her whanau.
[26] To the extent the father has a connection with Australia, the connection is known and understood by the children. They frequently visit Australia and the father’s family during holiday periods. I do not accept the argument that the only way the children’s Australian identity can be preserved or strengthened is by living in
8 Care of Children Act 2004, s 5(f).
Australia. The father is himself able to reinforce their Australian identities to the children through his contact with them.
[27] In any event, again the Court was faced with whether the advantages of relocation to Australia to achieve the father’s objectives for the children outweighed the advantages of the children remaining in their settled environment in New Zealand with the advantages that entailed.
[28] The Judge dealt with these considerations at [43] of the decision. He acknowledged that a relocation to Australia would bring with it an opportunity for increased day to day involvement with the children’s Australian grandmother, aunt and cousin, (and thus their Australian identity) but also brought with it a possible cessation of day-to-day contact with the children’s mother. Either way the decision would have a significant impact on one of the parties and the children.
Too much emphasis on the preservation of the children’s Maori culture
[29] The father submits the mother’s focus has been on the preservation of the children’s Maori culture and identity at the expense of the heritage which they are yet to truly experience from their father’s side. The children have lived in New Zealand for eight years. During that time they have experienced immersion in connection with their New Zealand Maori origins. Their connection with New Zealand is established.
[30] In the course of his written submissions on this point counsel for the father reverted back to the original agreement and the parties’ decision to let their children experience both sides of culture and identity. He submitted it was now time for the children to be afforded similar opportunities in regards to the other culture and heritage that makes up their identities. He submitted the children could not establish a strong connection with their Australian roots while living in New Zealand.
[31] Counsel for the respondent makes the point that the appellant is not himself an indigenous Australian. His father, who is deceased, was Italian. His mother has an Australian connection but his early life was in South Africa.
[32] To the extent the father relates to Australia and his family lives there it has to be acknowledged that his cultural identity and relationship with Australia is quite different to, and distinct from, the Maori cultural identity the children have through the mother.
[33] Again, the Judge was aware of the father’s position. He noted the father’s argument that adequate experience of the children’s Australian culture was not possible short of their living in Australia full time. But the Judge nevertheless considered the children’s regular and ongoing relationship with Australia through their father was sufficient.
Consideration of the loss of connection with the father
[34] The parties presented the Court with a difficult decision. Both responsibly accepted that the children should not be separated at this time. That was not the wish of either child.
[35] The father indicated that he would be relocating to Australia and wanted to take the children there. The mother indicated her life was in New Zealand and would not be shifting to Australia.
[36] Mr Jefferson submitted the Judge had failed to deal with the issue which parent was better placed to promote the other’s role in the children’s lives from a distance. It is correct that the father has made sacrifices to maintain the very close relationship with the children. He has stayed in New Zealand to facilitate contact with the children. The mother has made it clear her life is in New Zealand. While there have been difficulties between the parents, they have still been able to co-operate to promote the interests of the children in a number of ways. As noted, despite some difficulties, the children have been able to travel with the father to America, Australia, Italy and South Africa.
[37] On the evidence it is more likely the children’s relationship with their mother would be affected more deeply (if they relocated to Australia) than their relationship with their father would be if they remained in New Zealand.
Failure to weigh or evaluate the children’s welfare and best interests
[38] Mr Jefferson next submitted the Judge had failed to analyse whether the children were better served by remaining in New Zealand with their mother or relocating to Australia to be in the primary care of their father.
[39] Mr Jefferson accepted both parents are capable and caring parents, but he argued that the father took a greater role in the children’s schooling and sporting activities and made a greater attempt to resolve issues collaboratively with the mother.
[40] While the Judge did not expressly refer to all the issues Mr Jefferson referred to, the Judge was well aware of the need to consider what was in the best interests of the children. He reached his decision, which was a difficult one, on balance, after weighing the considerations. Of importance, he noted that no-one countenanced separating the children. He considered there were advantages to J in the stability of the present situation and there were always risks in change. While there were schooling advantages in Australia, they were not sufficient to outweigh the other advantages to the children remaining in New Zealand. I agree.
Failure to attribute weight to J’s views
[41] Mr Jefferson submitted it did not appear Judge Brown had attributed J’s views any weight at all when reaching his decision. That submission cannot stand against paras [44]–[48] of the judgment:
[44] [J]’s preference is entitled to weight and at times seemed likely to be determinative. I was left however with the impression, having met him, that there was not a great deal of depth in his position and the evidence as heard left me with a significant question whether in fact his father had unintendedly placed some pressure on him and his sister.
[45]No-one would countenance separating the children.
[46] To accede to [J]’s position is to deny [V]’s, more mild, position. Her present situation is successful and pleasing.
[47] I think there are advantages to [J] in the present situation which are invisible to him and, without over-dramatising them, there are always risks in change.
[48] It is a narrow call but I do not see that the gains of shifting to Australia outweigh the losses.
[42] Nothing in the updated report from counsel for the child has altered those findings. The updated report from the lawyer for the children confirms J has said he has told his father he wants to stay at his current school for the rest of the year. He is aware that his father is planning to move to Australia after Easter but thought there may be a possibility his father might wait until the end of the year. J was aware that once he turned 16 he can decide where he lives.
[43] V was a very articulate girl. She wanted to stay at her current school but at the same time said she would probably be okay moving to Australia at the end of the year if that was required. In the lawyer for the children’s assessment she was equivocal, she really did not know and she was quite happy for the Court to decide, but very clear she wanted to stay where she was for this year.
[44] The lawyer for the children Ms Bogers noted the length of time these issues have been before the Courts and submitted it would be in the best interests of the children for the proceedings to end.
Summary/result
[45] The Judge was faced with a stark decision. Either both children relocated to Australia to be with the father or they remained in New Zealand with the mother. One parent was not going to readily accept the decision. In such cases it is important for the Court and the parties to refer again to ss 4 and 5 of the Act. The issue must be resolved by having regard to what is in the best interests and welfare of the children having regard to the principles in s 5.
[46] Standing back and looking at the matter overall, and considering the interests of the children as is required, the appellant fails to satisfy this Court that the Family Court Judge was wrong in determining that the interests and welfare of the children in this case will be best served if the children remain in New Zealand.
[47]Leave to appeal is granted.
[48]The appeal is dismissed.
Costs
[49] The issue of costs was not addressed. My inclination is for the parties’ costs to lie where they fall and counsel for the children’s costs to be paid in the usual way. But in the event counsel wish to be heard on costs, I formally reserve them.
Venning J
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