Nichols v Mackie
[2022] NZHC 1334
•10 June 2022
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,
PLEASE SEE judgments/
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2022-404-000014
[2022] NZHC 1334
IN THE MATTER OF An appeal from the Family Court under section 143 of the Care of Children Act 2004 BETWEEN
JAMES NICHOLS
Appellant
AND
SHARON MACKIE
Respondent
Hearing: 28 April 2022 Appearances:
A McLean for the Appellant
M Headifen for the Respondent R A Holm, Lawyer for the Child
Judgment:
10 June 2022
Reissued:
11 July 2022
JUDGMENT OF HINTON J
This judgment was delivered by me on Friday 10 June 2022 at 3.30 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date:……………………
Counsel/Solicitors:
AA Law, Auckland
M Headifen, Barrister, Auckland McVeagh Fleming, Albany.
R A Holm, Barrister, Albany
NICHOLS v MACKIE [2022] NZHC 1334 [10 June 2022]
[1] The appellant appeals part of a judgment of Judge Muir in the Family Court at Auckland on 2 December 2021 with regard to final parenting orders for “A”.1 “A” had turned five not long before the date of the judgment.
[2] Judge Muir made orders after a two day fixture as to the number of days that A was to spend in the care of her father (the appellant), whether there should be an increase in that time, what time she should have in his care during the school holiday period, management of handovers and whether it was necessary to continue to use a supervisor/facilitator. In doing so he addressed at some length the relevant issues under s 5 of the Care of Children Act 2004 (COCA).
[3] The orders are very detailed. In broad terms, so far as relevant, the Judge made final orders that the appellant have care of A:
(a)in week one of each fortnight from the end of school on Friday until the start of school on Monday and in week two from after school on Wednesday until the start of school on Friday (that is in total five nights per fortnight); and
(b)half the time in the school holidays.
[4] In total, as the Judge said, A would be spending 39 per cent of her time in the appellant’s care. The orders represented the final in a series of step-ups in the appellant’s care.
[5]The balance of A’s time was to be spent with the respondent.
[6] Insofar as the key orders set out above are concerned, they seem largely to accord with the appellant’s submissions to the Family Court but he argued these orders should apply only while A was five.
1 [Nichols] v [Mackie] [2021] NZFC 11813. NB: The parties’ names have been anonymised for the purposes of this judgment.
[7] The appellant sought that a week-about care arrangement take effect when A turned six. The Judge declined to make that further order.
[8]The Judge said, under the heading “Future Developments”:
[76] [The appellant] was of the view that [A] should be in his care on a week about basis from when she reached the age of six. The orders that I am making which will see [A] sharing school holiday time with her parents and having five nights a fortnight in her father’s care will see [A] spending nearly 39% of her time in her father’s care. I do not have any evidence that establishes that [A’s] best interests will be promoted by that figure being increased to a 50:50 division of care. This is not a situation where equal sharing is likely to reduce conflict or tension between the parties. Conflict and tension between the parties will be significantly reduced because I am reducing the opportunity for contact between the parties.
[77] I am therefore making a final order in terms which I find are likely to be appropriate for [A] as she ages, and regardless of any future agreed changes that may occur to arrangements for her schooling or the like.
[9] Judge Muir’s decision not to further increase the appellant’s care of A to week- about care from the age of six is the matter under appeal.
[10] The respondent opposes the appeal and lawyer for the child supports the respondent’s position.
Background
[11] The parties met in 2015 and had a brief relationship of some three months duration. They broke up prior to A’s birth.
[12] There has been a long history of discord and court applications. Some of that history is set out below.
[13] In March 2017 the respondent applied without notice for parenting and protection orders. Both applications were put on notice. Leave was granted to withdraw them before they were served as there was a planned mediation.
[14] However, in May 2017 the respondent filed another without notice parenting application with respect to A’s name. A was approximately eight months of age. An
interim parenting order was made by consent as to care in favour of the respondent and contact to the appellant.
[15] In December 2017 the appellant filed a without notice application for warrant, admonishment and to vary the contact. This was when A was approximately 14 months old.
[16] A settlement conference was held in February 2018 but no agreement was reached.
[17] Judge Maude at a submissions only hearing on 24 May 2018 issued a reserved judgment in which he expressed concern for A that “the dynamic between her parents is not one that fosters a consensual and measured growth in relationship that she has with her father…”. Judge Maude made an interim parenting order for graduated weekly contact. A professional was directed to facilitate changeovers.
[18] The interim parenting order was varied in July 2018, changing one of the contact days. In July 2018 A started having overnight contact with her father.
[19] In August 2018 the respondent filed a without notice application with regard to travel with A on an overseas holiday. Judge de Jong made an order by consent allowing A to travel overseas for about 10 days. A further application followed which was also granted.
[20]The parties were referred to counselling in September 2018.
[21] The appellant filed on notice applications to vary the interim parenting order in late 2018, which Judge Maude granted.
[22] A three day hearing was held on 17 and 18 September and 2 October 2019 before Judge de Jong. In a lengthy oral judgment dated 2 October 2019, the Judge determined that it was in A’s welfare and best interest that there was some level of oversight in the next six months. Interim orders were made increasing the appellant’s contact. The interim orders were to become final after six months unless lawyer for the child notified otherwise. Judge de Jong provided that in the event final parenting
orders were made the appellant should have leave to apply to vary or replace the final parenting order when he has secured accommodation in Northland. He noted that the file was classified as a complex case to be managed by him wherever practicable or otherwise by Judge Maude.
[23] On 12 November 2019 the appellant filed a further guardianship application. He confirmed that he had secured accommodation in Northland. He further advised the Court that he had resigned from his employment, noting that he would shortly be self-employed. He later advised that he had secured accommodation on the basis that he would alternate between Auckland and Northland on a weekly basis. He would not be based full-time in Northland.
[24] The appellant filed two further applications in December 2019 on the issue of A’s day care and seeking make-up time for when the respondent was away.
[25] The matter again came before Judge de Jong on 12 February 2020. He issued a minute ordering a hearing by way of submissions to determine contact changeover and preschool arrangements. He also directed a s 133 report and counselling with a specialist psychologist.
[26] On 26 March 2020 the appellant made a further application to enforce a breach. This was regarding contact being stopped due to the first Covid-19 Level 4 lockdown. Judge de Jong, noting the complexity of the Covid lockdown, adjourned the matter to allow lawyer for the child, Ms Holm, to make inquiries. She filed a memorandum in April 2020.
[27] In April 2020 the appellant filed an updating s 68 application and updating affidavit.
[28] A submissions only hearing took place before Judge de Jong on 1 May 2020. His judgment gave leave for the appellant to withdraw the s 68 application. The 19 October 2019 interim parenting order was varied for changeover in week two to be supervised by ETPM. A social worker s 132 report was to be filed regarding the
suitability of the day-care. The proceedings were adjourned until both the s 133 and 132 reports were filed.
[29] By minute of 22 July 2022 Judge de Jong allocated a submissions hearing on 2 September 2022 to address the discrete issue of A’s preschool education and changeovers.
[30] In August 2020 the Court-appointed psychologist, Ms Wali, filed her s 133 updating report, which followed on from an earlier report of 18 March 2019.
[31] Judge de Jong issued an interim judgment as to preschool changeovers on 6 October 2020. He allowed A to attend a particular preschool with conditions and said the order would continue until replaced with another order.
[32] Further applications were filed by the appellant relating to issues of A’s lack of immunisation, the login details for A’s online “ManageMyHealth” account and A attending the appellant’s preferred school when she turns five. The respondent also filed an application seeking that A attend the respondent’s preferred school when she turns five. Various affidavits were filed including an affidavit of the changeover supervisor with respect to contact changeovers. She had been supervising changeovers for two years.
[33] The substantive hearing relating to final parenting and other orders took place before Judge Muir on 17 and 18 November 2021 and as noted above his reserved decision issued on 2 December 2021. Orders were sealed shortly afterwards.
Grounds of appeal
[34]The appellant identifies the following grounds of appeal:
(a)Issue 1: The learned Judge failed to consider and give sufficient weight to the evidence of the appellant when he applied ss 4, 5 and 6 of the COCA in determining whether a 50:50 care arrangement would promote A’s welfare and best interests.
(b)Issue 2: The learned Judge did not indicate which s 5 principles he gave weight to when dismissing the appellant’s proposal for a 50:50 care arrangement when A turned six years of age.
(c)Issue 3: The learned Judge did not take into account the evidence from the parties, the s 133 report writer and the earlier judgment of Judge de Jong dated 2 October 2019 where a 50:50 shared care arrangement was anticipated as a Final Parenting Order once A attended school.
(d)Issue 4: The learned Judge was too greatly influenced by some of the views of the s 133 writer (Ms R Wali).
(e)Issue 5: The learned Judge was plainly wrong to refer to the respondent’s conduct of gatekeeping and control at [47] as events that merely illustrate the capacity for A’s parents to find points of conflict, thereby not giving adequate weight to the affidavit evidence of the appellant and his concerns of future gatekeeping.
(f)Issue 6: The learned Judge was wrong when he found the order he made would allow the parties to meaningfully contribute to A’s care, upbringing and to the long term development of her identity [48] as he failed to give weight to the appellant’s evidence to be more involved in the child’s schooling and day to day life.
(g)Issue 7: The Family Court erred in law when a lawyer to assist was not appointed.
Appellant’s submissions
[35] Ms McLean for the appellant provided full written submissions. She submits that the following matters are of particular relevance on the appeal.
[36] First there is the appellant’s evidence that he is determined and committed to having meaningful involvement in A’s life, particularly schooling which was denied
to him earlier and resulted in numerous interventions by the Court. He had consistently sought to increase his contact and be more included and involved in A’s life.
[37] The appellant deposed that he had taken significant steps to make sure he was available for week-about shared care. These steps involved giving up his job and moving to self-employment; setting up his own business to enable him to work from home and give him flexibility with his hours of work; and setting up a home in Northland so that he could have week-about with Ato enable him to be with her during her school week.
[38] In short, the appellant has gone to great lengths to put himself in a position of being able to provide week-about care and to be significantly more involved in A’s life.
[39] The appellant also deposed that he was not a first-time parent and had a shared care arrangement with his son Z since Z was two years of age. His proposal in terms of shared care with A was that he would have her for the week that he did not have Z. His shared care with Z is at his house in the city and his shared care week with A would be at his house in Northland.
[40] Second, Ms McLean relies on evidence of the respondent that she accepted that 50:50 care should happen – it was just a matter of when.
[41] Third, Ms McLean points to the respondent’s deliberate actions of excluding and/or minimising the appellant’s role in A’s life. She notes the respondent’s deposed belief that A does not really enjoy her time with the appellant; her view that A is not safe in the appellant’s care; and her significant level of gatekeeping or control. In addition the respondent had made ongoing allegations of family violence on the part of the appellant, either towards her or A. She had written to the medical clinic asking them not to release A’s medical records. Mr McLean also noted the respondent’s statement that her home was only 100 metres from the school when in fact she had moved 20 kms away.
[42] Fourth, the appellant in his evidence particularly stresses the importance of both parents being involved in A’s schooling, not just weekend activities. He says he has little contact with A’s schooling life because his ordered contact is only two school days per fortnight. He says that in one month he has only four days out of a possible 28 days of school time whereas the respondent has 24 days.
[43] Finally, in terms of the evidence, Ms McLean notes the following statement (in particular) in the psychologist’s report and says this was not, or not properly, taken into account.
There are significant benefits to children’s psychological and educational outcomes from positive father involvement and a strong father-daughter relationship.
Submissions for respondent and lawyer for child
[44] I have focused primarily on the submissions for the appellant. Rather than setting out the submissions made for the respondent and by lawyer for the child, I refer to them where relevant below.
Discussion
[45] The starting point is that the welfare and best interests of the child is the first and paramount consideration.2 Section 5 sets out the principles relating to a 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 sections 9(2), 10, and 11 of the Family Violence Act 2018) 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:
2 Care of Children Act 2004, s 4.
(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.
[46] Each of the s 5 principles needs to be taken into account to the extent they are relevant in the particular circumstances.3 The principles are given weight depending on the circumstances of individual cases.4
[47] I approach the appeal by addressing each of the specific issues identified by the appellant’s counsel regarding matters not taken into account by the Judge or insufficiently taken into account, keeping the s 5 principles in mind. To a material extent the issues overlap. I have endeavoured to consider any particular point only once.
[48] As this is an appeal, the appellant has to persuade me that my decision should differ from the decision on appeal.5 I am only justified in interfering with the decision if I consider the judgment is wrong.6
Issue 1 Failed to give sufficient weight to appellant’s evidence as to 50:50 care.
[49] The appellant makes submissions under this heading which are repeated in relation to more specific subsequent issues. I have endeavoured to extract only those points which are not covered subsequently.
[50] As a general comment, all relevant points from the appellant’s evidence were addressed in the judgment. The appellant’s argument relates to the weight attached to his evidence. Weight is very much a matter for the trial Judge.
3 Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [19].
4 At [19].
5 H v H HC Auckland CIV-2009-404-004457, 3 August 2009, citing Austin, Nichols & Co Inc v Stichting Lodestar [2008] 2 NZLR 141.
6 At [26].
[51] Ms McLean emphasises the huge efforts made by the appellant up to the hearing, including changing his employment arrangements and securing accommodation in Northland, specifically for purpose of caring for A. These actions on the appellant’s part are impressive. The Judge does not expressly refer to these lifestyle changes by the appellant. However, there is no doubt the Judge will have been well aware of all of these efforts from the file, including Ms Wali’s 2020 report, and from the submissions and evidence of the appellant himself. Further, the changes the appellant had made will have assisted in the final orders the Judge made. But the significant rearrangements made by the appellant are but one factor in determining the orders and the extent of them. The key issue is what is in the best interests of A, not what is in the best interests of or fair to either or both of her parents, regardless of the sacrifices they or one of them may have made.
[52] In similar vein, the appellant’s submissions under this heading repeatedly refer to his “determination” and “commitment” and his repeated evidence that he wishes to have meaningful involvement in A’s life. There may be a sense that the Judge has not understood the strength of the appellant’s views as he has not used language to that effect. However, it is not necessary to do so. It goes without saying in cases of this nature that the parties have very strong views and commitment to fulfil them. The Judge accurately sets out the appellant’s proposals at the beginning of his judgment. There is no question but that he will have been aware of the appellant’s determination to implement those proposals.
[53] Also the Judge does refer to the appellant’s shared care of Z. He does not expressly comment on how well that arrangement works but it is of little relevance. It is A and her particular best interests that are at the heart of this case.7
[54] I do not see any error in the judgment in regard to the matters considered above. The key points of the appellant’s case are noted and taken into account.
7 Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [19].
Issue 2 Failed to indicate s 5 principles for 50:50 care at age 6
[55] Reading [76] of the Family Court decision on its own, it might appear that the Judge has not fully considered A’s best interests at the age of six and might even be imposing an onus on the appellant at that point. However on a careful reading of the judgment as a whole I am quite satisfied that is wrong. The Judge has first considered each of the s 5 principles in broad terms and reached a view as to care arrangements for A as to the future generally. He then specifically comments on the argument that there should be a change when A turns six and says that he has no evidence establishing A’s best interests would be promoted by an increase to 50:50 care. The Judge is simply saying that he has no reason to change the view he has reached. He was not required to then readdress all of the s 5 arguments or the evidence. It is also important to note that the Judge says he has no evidence establishing 50:50 care was best for A. He does not say there was no evidence regarding 50:50 care. Clearly there was. I do not agree that there was any error or failure in this regard.
Issue 3 Failed to take account of evidence of parties, psychologist and judgment of Judge de Jong where 50:50 care was anticipated once A attended school
[56] Ms McLean first says in this regard that the Judge failed to take into account the respondent’s evidence that she would want A to be older before considering a week-about arrangement and would look at eight years of age. The Judge has not expressly noted that evidence. However such a statement is too vague and too far into the future to have any particular relevance.
[57] I have already said (and it does not seem to be argued otherwise) that the Judge took account of the relevant evidence of the appellant. I cannot identify and have not been taken to references to evidence of the appellant related specifically to likely material changes of circumstances when A turns six as distinguished from the appellant’s views in that regard of which the Judge was clearly aware.
[58] The paragraph from Ms Wali’s evidence on which the appellant relies (quoted above at [43]), referring to the benefits of a strong father-daughter relationship, has been well recognised by the Judge. The Judge accepts that it is “clear that [A] not only enjoys her time in her father’s care and in his household, but that he is a source
of reassurance and comfort for her” and that A has “developed a strong and secure bond with her father”. He considered the previous arrangement was inadequate in regard to A’s relationship with her father and the wider family on his side.
[59] But the extract at [43] above is only part of the lengthy evidence of Ms Wali. Even on its own it does not go far to assist the appellant’s argument that week about care should operate from when A turns 6. The particular extract was immediately followed by Ms Wali’s observation that “around 35 [per cent] of time with a child is required to provide the required platform to promote the development and maintenance of meaningful parent/child relationships”.
[60] Ms Holm took me to the following further parts of from Ms Wali’s August 2020 report:
[A] continues to have a central and strong relationship with her mother, who remains her primary attachment figure.
At the end of the observation session, as I came away, I heard [A] start to cry in the background, saying “I miss mummy”.
[A]’s interview statements although reflective of her stronger affinity with her mother, were also positive about her father.
A careful balance is needed for young children’s care arrangements in that they are assisted in maintaining attachments with both parents but that this is not done at the cost of the stability and security with their primary attachment figure. [A]’s is with her mother in this case. As commented in my 2019 report, there is no evidence in the literature of a 50:50 split achieving better outcomes for children than other shared care (35% and above) arrangements.
There is also need to be cautious about considering parity of time as a solution to the parental conflict.
A week-about arrangement may be appropriate when A is well into her school years.
(footnotes omitted)
[61] The appellant did not cross-examine Ms Wali as to the last quoted paragraph above. Ms Holm did. It became clear under Ms Holm’s questioning that Ms Wali had significant concerns about week-about care even in two years’ time.
Q.… A week about arrangement may be appropriate when [A] is well into her school years. What do you mean by well into?
A. I know. There, there is no exact timing. I think the week about arrangement comes with unique difficulties because especially when the relationship between the parents is far from good. So really, what it’s – if, and unfortunately, the week about, if I've understood correctly, is the only equal time arrangement that is – can be considered from [Mr Nichol’s] family situation and living arrangements. So the seven-day separation, it, it, I think is a particularly a big ask of a child in those circumstances. So, I, I can't say, you know, when would be a time when she might be able to kind of work with that or be good with that. Because there's so many unknowns. So there isn’t a specific age that I can give you that is casting so far into the future.
Q.So I take it from what you're saying, that’s something, you're thinking is more than two years away?
A.Yes, yes. And even then, I don’t think it's – I can’t see that as being easy or smooth, unless there is a substantial change in how the parents are relating to each other.
Q. Do I take from some of what you're saying that perhaps there’s a hesitation as to whether this is the right type of arrangement for this particular family to move to week about? Is there a question mark as to whether it would fit at all?
A. Yes, there are. I think with the week about some considerable reservations.
[62] The Judge heard all of the evidence of Ms Wali. Ms Wali’s opinion was that while both parties were capable parents and A was close to both, A’s primary attachment was to her mother and the week about arrangement proposed by the appellant was not appropriate for A. She said it might be when A is well into her school years. Ms Wali referred to A’s particular circumstances, her assessment of those, and relevant academic literature. The Judge was entitled to accept her evidence.
[63] The fact that lawyer for the child, who has had a number of meetings with A, supports the psychologist’s conclusions and the judgment is also material.
[64] The appellant focuses on [41] of Judge de Jong’s interim judgment of 2 October 2019 which the appellant describes as a “statement of anticipation”. The paragraph reads as follows:
[41] It is in [A]’s welfare and best interests that she has as much time with each parent as is reasonably practicable. The evidence from Ms Wali is that
[A] is too young to be in the week about care of her parents at present. This is more appropriately considered closer in time when she approaches school
age and when Mr [Nichols] moves to the [Northland region]. Ideally the parental relationship will have improved by then.
(footnote omitted)
[65] It would be significantly elevating this passage to assert that Judge de Jong was anticipating an equal sharing arrangement. He was saying the issue should be considered at closer to school age. Even if Judge de Jong had indicated more, it would not be binding on Judge Muir when he determined the issue of final parenting orders. He must do so on the evidence before him at that time, including the oral evidence of Ms Wali.
[66]I do not consider there is any error in terms of Issue 3.
Issue 4 Too influenced by psychologist’s evidence
[67] It needs to be remembered that Ms Wali is a Court-appointed expert. Further, her evidence was the only expert evidence before the Court. While the ultimate decision is most definitely for the Judge, Ms Wali’s role was to provide independent expert assistance to the Court. On my review of the evidence she carried out that task in a responsible and careful manner.
[68] The Judge was clearly influenced by Ms Wali’s testimony but he sets out his reasons as to why. Having reviewed her evidence and the Judge’s assessment of it I see no reason to disagree with his assessment. The Judge has still reached his own decision and weighed up the factors and the evidence that he has to take into account. That is quite clear. He has not abdicated responsibility to Ms Wali. He does not simply refer to her report and evidence and reach a conclusion. There is no error in this regard.
Issue 5 Wrongly weighed issue of gatekeeping
[69] It is simply wrong for the appellant to contend that the Judge took account of the respondent’s gatekeeping as “merely illustrating the capacity for A’s parents to find points of conflict.”
[70] The issue of “gatekeeping” on the part of the respondent clearly impacted materially on the judgment along with the other matters pointed to by the appellant.
(Mr Headifen for the respondent acknowledged the respondent’s gatekeeping behaviour was properly taken into account). The Judge referred in some detail to the respondent’s “excluding” behaviour at [38], [45] and [46]. The Judge then, at [47], referred to the capacity for conflict but more importantly he said that the orders needed to see A spending longer periods of time in both her parents’ care and to ensure neither parent felt they were in a position of control. He said such an order would enable both parents to contribute meaningfully to A’s care.
[71] I have no doubt that the Judge factored his concerns regarding gatekeeping into the orders he made. The Judge had to balance a number of factors including the aims stated above, A’s primary attachment to her mother and making A as happy and comfortable as possible with her care arrangements.
[72] There is no basis for complaint in this regard. As with the point made above about levels of parental sacrifice, punishment of a parent for their behaviour is not a relevant approach to determining what is in the best interests of a child. The way in which the Judge dealt with this issue is appropriate and child-focussed.
Issue 6 Wrongly weighed ability of appellant to meaningfully contribute, especially to school care
[73] I well understand that the ability to meaningfully contribute is important to the appellant. It appears to be a significant driver for his appeal and much of the Court action taken by him. It is very clear from the judgment, including the extracts cited above, that the Judge was focused also on achieving that outcome. In my view, he did. Anyone with 39 per cent of a child’s time must be able to meaningfully contribute to their upbringing, especially with the right attitude to doing so, which the appellant clearly has. That is common sense. It is also in accord with Ms Wali’s evidence that around 35 per cent of a child’s time is required to promote a meaningful parent/child relationship.
[74] The appellant’s concerns relate particularly to involvement in schooling. I agree that such involvement is very important on the part of both parents. But it is not fair to say, as Ms McLean submitted, that the appellant has contact with A’s schooling life on only two days out of 14. He is either picking A up from school or dropping her
there six times, spread over five days, each fortnight. That is ample opportunity to discuss the school day with A (either pending or post) and liaise with the teacher when necessary, noting that teachers have heavy duties involving more than one child. I understand matters such as parent/child interviews are arranged so that each parent can attend separately and that would be important in a case like this. Similarly while the appellant expresses concern about attending school events, anticipating opposition from the respondent, he is as entitled to attend these events as the respondent, which again her counsel expressly acknowledged.
[75]I consider the Judge has carefully taken this issue into account.
Issue 7 Failure to appoint lawyer to assist
[76] As I understand his argument the appellant contends that because one of many issues before Judge Muir was an allegation by the respondent of violence in the appellant’s family home (or similar) the Judge should have appointed lawyer to assist under s 95 of the Evidence Act 2006 on the issue of the appellant cross-examining the respondent. Quite what the relevance of this is I do not know. It is not suggested, nor is it apparent to me, that there were any negative consequences of not making the appointment. It might be expected that this argument would be advanced by the respondent, not the appellant.
[77] In any event I see nothing in this point. Section 95(2) does not require a Judge to appoint a lawyer to assist. It states that a Judge may, on the application of a witness, or a party calling a witness, or on the Judge’s own initiative, order that a party to proceedings not personally cross-examine the witness. Subsection 4 states that when considering whether or not to make an order under subs 2 the Judge must have regard to the need to ensure fairness of the proceeding, the need to minimise stress on the complainant or witness and any other factor that is relevant to just determination.
[78] My understanding is that a direction was originally made for a lawyer to be appointed but this was not utilised. When the Family Court hearing took place the respondent did not object to the appellant cross-examining her, no doubt in part because the respondent was represented by counsel.
[79] In all of the circumstances it was clearly appropriate that there be no lawyer to assist appointed. Even had they been, their role is in putting the unrepresented party’s questions insofar as appropriate. That would have made no difference to the outcome of the proceeding.
Conclusion
[80] In a lengthy judgment the judge carefully considered the future care arrangements for A who had just turned five at the time.
[81] In making the final parenting orders, the Judge took account of all of the matters relevant to A’s care over the foreseeable future. He clearly did not consider that week-about care is in A’s best interests and said he was making an order appropriate for A “as she ages” and regardless of any future agreed changes that may occur to arrangements for her schooling or the like.
[82] I see no reason to disagree with that conclusion. To the contrary, the evidence, particularly that of the psychologist, strongly suggests in the circumstances of this case that the orders should stay in place for a number of years. It is very much to be hoped that with the assistance of their lawyers the parties might be able over time to agree minor changes in A’s best interests without taking up further court time and cost, and without involving A in more litigation.
Result
[83]The appeal is dismissed.
[84] My indicative view is that the respondent is entitled to costs on a 2B scale. If costs are not agreed, the respondent should file submissions within seven days and the appellant within a further seven days.
Hinton J
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