P v P

[2015] NZHC 1234

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

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

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2014-485-11218 [2015] NZHC 1234

BETWEEN

P

Appellant

AND

P Respondent

Hearing:	27 May 2015
Counsel:	D W Milliken for Appellant C Matsis for Respondent M G Powell as counsel for the child
Judgment	4 June 2015

JUDGMENT OF SIMON FRANCE J

[1]      This is an appeal by the father (“F”) of a child (“Z”) against a decision of the Family Court allowing the mother of the child (“M”) to relocate to Australia with the young boy.  Prior to the relocation the parents had shared equal custody.  However, as part of the Court’s reasoning, the Judge indicated that had relocation not been approved, the care arrangements would have changed so as to make M the primary

caregiver.

P v P [2015] NZHC 1234 [4 June 2015]

[2]      The decision of the Family Court was issued on 20 August 2014.   A stay application by F was not pursued, and the offer of an urgent hearing of the appeal (24 September 2014) declined.  Z and his mother relocated on 29 September 2014, and so Z has now been living in Australia for eight months.  Z is presently five years old.

Leave to appeal

[3]      The appeal is brought pursuant to s 143(2) of the Care of Children Act 2004. Leave is required.  It is not opposed by the respondent and is accordingly given.

Facts

[4]      The father is a New Zealander aged now 40.  In 1995 he went to Australia where he primarily lived for 14 years.   During that time he became an Australian citizen.  Whilst living in Melbourne he met the respondent who is Australian.  M had a daughter from a previous relationship for whom she has remained the primary caregiver.

[5]      In 2008 the couple married and in 2009 they came to New Zealand bringing M’s daughter with them.  Prior to relocating here M signed an agreement with the father of her daughter.   That  agreement  indicated  that  they would  all  return  to Australia within a couple of years.  Whether F was party to the agreement (he was not a signatory) is an alleged factual error made by the Judge.

[6]      In January 2010 Z was born.  It seems that by the end of 2010 the couple was experiencing difficulties.  However, formal separation did not occur until April 2012. In terms of care arrangements for Z, although the arrangements varied at times, for the nine month  period preceding the  Family Court  hearing,  there was  a shared custody arrangement involving equal time.

[7]      In terms of how matters were generally, it is apparent there was considerable conflict between the couple.  A challenge made on the appeal is that the father has been wrongly held responsible for the conflict, and that in any event the degree of present conflict was overstated.  F’s position is that it was diminishing.  Putting that

dispute to one side for the moment, the Judge’s assessment was that the level of conflict (not physical) was such that it posed a risk to the child.  This assessment lay at the heart of the Court’s conclusion that the shared custody arrangement was not working and would need to change.

[8]      The present custody proceedings were initiated by M in October 2013.  At that time she applied for a variation in the parenting arrangements to make her the primary caregiver, and for permission to relocate to Melbourne.   It was noted in support:

(a)       her immediate and wide family all lived in Melbourne;

(b)      it had always been the couple’s intention to return to Melbourne;

(c)       Z would have a wider family to bond with in Australia compared to

New Zealand where there was only his paternal grandparents;

(d)M, who is the primary earner, could do better in Melbourne from a work and income viewpoint, with the consequent benefits that would flow from that;

(e)       she would initially live with her parents until work was obtained;

(f)      in general terms, Melbourne offered better stability and opportunities for Z and M would facilitate contact with the father.

[9]      By the time of the hearing, M had obtained work in Melbourne.

[10]     Concerning F’s position, his work history was intermittent and his living arrangements were not always orthodox in the sense that he would live in flatting arrangements, or boarding, or occasionally in what could be termed camping type situations, and seemingly never for particularly long periods.  However, by the time of the hearing he was in settled accommodation which was secure until at least the end of 2014.  I am advised he remains at the same address.  There was no suggestion

he was not a good father.  The primary concern was the impact the conflict between the parents was having or might have on Z.

Judgment under appeal

[11]     It  is  not  necessary  to  set  out  in  detail  the  comprehensive  judgment  of Judge Grace.   His Honour traversed the facts and the history between the parties since problems started to emerge in 2010.  This included incidents leading to police or CYFS involvement, withdrawn applications for protection orders and temporary protection orders not pursued to finality.

[12]     There   were   a   number   of   reports   available,   including   two   from Mr Nigel Fairley, an experienced clinical psychologist.   In addition, the Court was assisted by Ms Powell, counsel for the child.  She has held that position since Z was about one year old.

[13]     The Judge noted a progression in the various reports which seem to suggest an ongoing and arguably increasing situation of conflict to which Z was exposed, either directly or in terms of experiencing the aftermath.  His Honour cited passages from the second report of Mr Fairley, and I consider one merits repetition:1

The potential for conflict between the adults remains very high.  Relatively small matters have potential to become huge considerations, seemingly without any ability to problem solve.  This is almost certainly a reason why their   relationship   failed.      As   well,   the   children   being   exposed   to inappropriate adult behaviour is also high, with an example occurring during this assessment.   [Z] watched and commented on that interaction at changeover of care.   Generally, I am concerned about how the parents function  with  each  other,  and  the  potentially  damaging  impact  on  the children.

[14]     Finally in  relation  to  Mr Fairley’s  evidence,  it  transpires  there had  been, subsequent to his reports, an incident at Z’s kindergarten involving F.   There was already evidence before  the Court  of instances  of conflict  between  F  and  third parties, and this was a further example albeit one more directly involving Z as well. Mr Fairley was asked during his evidence to comment on it and in response made

observations about a pattern of conflict.

1      Psychologist’s report by Mr Nigel Fairley, 28 May 2014 at 18.

[15]     It was this pattern of conflict that most informed the Judge’s assessment of a need for change.   This conclusion was supported by counsel for the child who considered the relocation application was in Z’s best interests.  The Judge noted it did not really matter who was responsible for the various incidents, so much as that their occurrence was creating an unsafe environment for Z.  That said, it is hard to ignore that F is somewhat of a common denominator as evidenced by the issues he seemingly also has with third parties.  Although F considers there is an explanation on each occasion, and two sides to the story, it is the consistent occurrence of these

events that forms the basis of the pattern of conflict observation.2

[16]     The Judge concluded relocation was the best option.  His Honour considered that Melbourne would provide a much better environment and would assist M to cope with F.  Other matters noted were that:

(a)       F was an Australian citizen who could locate there;

(b)the  relationship  between  M’s  daughter  and  F  had  deteriorated  in recent times, and this was also a source of conflict;

(c)      it had always been part of their plans that the family would relocate back to Melbourne;

(d)whatever the reason, it was clear Z was experiencing some difficulties and there were behavioural issues emerging that showed the current arrangement was not working for Z; and

(e)       of the two, M was better positioned to be the primary care-giver.

[17]     Relocation  was  approved  and  arrangements  put  in  place  for  continuing contact. As noted, these were renegotiated by the parties.

2      It should be observed that evidence was filed by the paternal grandfather which acknowledged that F had conflict issues.  The descriptions given by F’s father was consistent with the Court’s conclusion, and indeed were cited by the Court.

[18]     The Court also determined what access F should have if he chose to relocate to Melbourne – every second weekend, plus Wednesday nights in the other week. Further, custody was to alternate for each Christmas period, and for school holidays.

Grounds of appeal

[19]     The appeal is advanced on the basis that:

(a)       the Court made errors of fact that influenced the outcome;

(b)      contrary to s 6(2) of the Act, the views of Z were not ascertained; (c) the principles set out in the Act were inadequately considered;

(d)insufficient consideration was given to the likelihood that M would comply with the conditions allowing contact and access; and

(e)       generally the decision represents a favouring of M’s interests over what is best for the child.

Appeal ground one – errors of fact

[20]     Three errors are alleged.  I address each in turn.

(i)       Whether M had family support in Australia

[21]     The challenge made here is not so much to the uncontestable reality that M does have support in Melbourne.  Rather, the proposition is that this support, while no doubt good for M, would not be good for Z.  The focus of this submission is the maternal grandfather.

[22]     There was first a suggestion of domestic violence between the grandparents. It transpires that this had occurred, albeit 30 years ago. There was nothing to suggest it was a present feature.

[23]     The other aspect was the grandfather’s unwillingness to have contact with F. This turns out to be somewhat complicated.  The grandfather is a police officer.  He is aware that there is an existing Australian arrest warrant in relation to F.  It relates to a relatively minor matter that seemingly could be easily resolved.   The grandfather’s point is that until it is resolved it is not possible for him as a police officer to be with F.  His obligation would be to arrest him.

[24]     It also appears that the maternal grandfather is not a fan of F.  It is submitted by the appellant that this is likely to lead to negative comments and actions that will be detrimental to Z.  On this aspect the maternal grandfather provided evidence, and was cross-examined.  He explained that another of his children is separated, and the parents have learned to manage the situation.   He understands the importance of appearances, and of not undermining relationships.

[25]     I reject this ground of challenge.   First, there was ample evidence of the support M and Z would have in Australia.  Evidence was filed by her parents, by the father of her daughter, by her sister and by a close friend.   Second, there was no reason to consider the maternal grandfather was a negative factor in the application. He appeared, gave evidence, and was able to be assessed by the Judge.   I see no basis for an appellate court to differ.

(ii)      Australian citizenship

[26]     The underlying challenge here is to what is said to be an assumption by the Judge that F would relocate to Australia.  It is submitted that it was made plain at the hearing he would not, and this position was affirmed, through counsel, at the appeal hearing.

[27]     I consider this matter is being over-emphasised.  The father had indeed said he would not move.   It appears, however, that there was some thought subsisting that, notwithstanding this, because of the father’s undoubted commitment to Z, his relative  lack  of  commitments  in  New Zealand  and  his  previous  long  term  in residency in Melbourne, he would probably move in the end.  It is understandable people think that. The father says it will not happen and that must be accepted.

[28]     I do not consider the Judge made much of this other than to factor in that if relocation was allowed, there were options for the father that were better than is often the case in these matters. There is no error in that assessment.

(iii)     Was there an agreement to return to Australia?

[29]     In summarising his reasons for approving relocation, the Judge referred to:

… the understanding that the family would be returning to Australia in due course.

[30]     This  is  taken  by  the  appellant  to  be  a  reference  to  the  specific  written agreement entered into between M and the father of her daughter.   It was an agreement reached at the time when F and M were moving to New Zealand taking M’s daughter with them.  M wanted to sort matters out properly with the father of her daughter, and the agreement was drawn up.   The agreement recorded an expectation of returning to Australia.

[31]     The point taken by F on appeal is that he was not a party to this agreement. In fact there is unchallenged evidence from the daughter’s father to say that F was party to it, albeit not a signatory.  However, I do not regard that as crucial because in my view the Judge’s observation reflects a wider focus than just this formal written agreement.

[32]     F accepts that when he and M came back to New Zealand, it was envisaged that it would be temporary and that they would return to Australia.  His point, which is a fair one, is that this understanding was premised on them returning to Australia as a family.   He submits it should not be held against him in the very different circumstances that now arise.

[33]     There is legitimacy in the point, but I do not consider the Judge is holding it against him.  It is just being used as part of the relevant matrix.  The key issue in these decisions is the best interests of the child, but inevitably this will always entail a consideration of the respective positions of the parents.   With her relocation application, M is seeking to give effect to an existing intention of the parties, notwithstanding that circumstances underlying that intention have changed.   The

prior understanding of returning to Australia could not bind or influence in any sense if relocation was undesirable for the child, but it is otherwise a relevant factor.  The proposed relocation venue is not something that has just emerged.

[34]     This and the preceding alleged error about citizenship are related.  Part of the relevant context here is that F and M are Australian citizens who have both lived in Melbourne for many years, and who envisaged that if things had worked out, they would by this time be back living in Melbourne.  It is correct for the Court to have regard to this as a factor when considering a relocation application for M and Z to live in Melbourne.

[35]     I accordingly reject this ground of appeal and consider no error of fact has been established.

Appeal ground two – Z’s views not ascertained

[36]     Section 6(2) of the Care of Children Act 2004 requires that a child must be given reasonable opportunity to express his or her views.  The appellant submits this was not done.  It is accepted that no efforts were made by F prior to the Family Court hearing for anything to be done in this regard other than that which had already occurred.  In my view this undermines the legitimacy of now taking it as an appeal point.

[37]     In any event, I do not consider this ground has any strength.  Ms Powell has been counsel for the child since he was one year old.  She advises that immediately prior to the Family Court hearing she did in fact meet with Z.   Indeed, Z’s father brought him to the appointment.  Ms Powell advises that the only interest of the four year old boy at that meeting was in planes and trucks.  He did not express views on the relocation and if he had, they would have been conveyed to the Court.

[38]     Further, the Court had access to several reports by experienced professionals who had opportunities to observe Z and the parents.  There was also counsel for the child, and evidence was presented from all the adults who knew Z.  I do not consider there was any breach of s 6(2).

Appeal ground three – principles3 not adequately considered

Appeal ground five – preference of M’s wish over Z’s interests

[39]     I take appeal ground three to be that the Judge was wrong in the conclusions he drew in his assessments, or that different weight should have been attached to some principles. Appeal ground five is really the other side of the same coin, namely that the Judge has not given enough attention to the principles and to Z’s interests, but rather has been swayed by what would be best for M.

[40]     The correct approach to these applications was set out by the Supreme Court in Kacem v Bashir, where it was observed:4

Everything  will  depend  on  an  individualised  assessment  of  how  the competing contentions should be resolved in the particular circumstances affecting the particular children.  If, on an examination of the particular facts of a relocation case, it is found that the present arrangements for the children are settled and working well, that factor will obviously carry weight in the evaluative exercise. All other relevant matters must, of course, be taken into account and given appropriate weight in determining what serves the child’s welfare and best interests, as s 4(5) puts it.  The key point is that there is no statutory presumption or policy pointing one way or the other.   All this seems to us to follow from ss 4 and 5 of the Act as a matter of conventional statutory interpretation.

[41]     I consider it useful to begin by picking up on the point made in that passage about the success of status quo being relevant.  On its face what has happened here is a very significant shift from shared custody with equal time to a situation where the child is based in another country and is living with the father only nine weeks a year. However, that bare statement of the situation is misleading in that it is clear from the judgment that the status quo was not working and would have changed regardless of the relocation issue.  The mother was going to become the primary caregiver, and the amount of time the child was spending with his father would have been significantly reduced.  So in terms of the Bashir passage, existing arrangements were not settled and working well.

[42]     The first principle is that a child’s safety must be protected.  It is here that the pattern of conflict behaviour and the resultant risks to Z’s well-being fall to be

considered.   It should be emphasised that there is no suggestion of physical harm.

3      This is a reference to the principles set out in s 5 of the Care of Children Act 2004.

4      Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [24].

Rather, it is the effect of exposure to conflict situations and anger.  The appellant’s primary proposition is that the pattern of behaviour has been overstated, and that it was diminishing.  I do not consider either proposition to be sustainable.

[43]     Concerning  the  existence  of  a  pattern,  since  late  2010  there  had  been incidents involving the police and separately CYFS, a temporary protection order had   been   issued,   there   had   been   disputes   about   day-care   placement,   then kindergarten, and then latterly future schooling.  F once had a good relationship with M’s daughter, but that had now deteriorated to the point that she did not want to come to the door to take a present from him.  Which, in turn, immediately led to another incident  and  the police being  phoned  before  F decamped.    On  another occasion, a dispute over packing of Z’s clothing for a transfer led to Z missing a birthday party.

[44]     The conflict involving F is not limited to the family.  Seemingly, he has been trespassed from both the Warehouse and Countdown.  F accepts that Z had witnessed some of his altercations with third parties.   Overall, there was ample evidence to support a conclusion of a pattern of conflict.

[45]     Nor was there any real basis to accept F’s assertion that it was diminishing. A troubling  incident  occurred  at  the  kindergarten  shortly before  the  Family Court hearing.   The head teacher provided evidence indicating that she had found F’s behaviour very intense and intimidating.   F has a different view of the matter, as seemingly he does with most of the incidents, but there was simply no basis on which  the  Judge,  or  this  Court  on  appeal,  could  assess  the  clear  pattern  as diminishing.

[46]     A related  point  made  by  the  appellant  is  that  there  was  no  professional evidence that the conflict was having an effect on Z.  I accept that is so, but there are two points to be made in response.  First, Z has been having problems, and the Judge was entitled to see a link between the voluminous conflict evidence and Z’s present state.  Second, the potential for an impact is clear and could not sensibly be disputed. Counsel for the child’s assessment of the couple’s present relationship was that it

was now “toxic”.  Accordingly, the conclusion that some change was needed was amply supported by the evidence.

[47]     Principle (b)  advances  the  proposition  that  the  care  of  children  should primarily be the responsibility of the parents or guardians.5   It appears that F sees the outcome of the case as a criticism of him as a parent.  That is not so, except to the extent that the couple are both responsible for the state of their relationship, which is seen as a source of potential harm. There is no basis to say the Judge was not alert to this principle. A unchanging reality of relocation applications is that, if granted, they

will significantly affect the relationship between the child and the parent left behind. The Judge would have been aware of this.

[48]     Principle (c) relates to the need for there to be ongoing consultation and co-operation between the parents.6   This obviously has not been a recent strength of this couple, but it is unclear to me the particular relevance of the principle to the decision.  It seems F is unhappy with comments made by the Judge about the topic. By way of explanation for why the topic arose, F takes the unusual position of declining  communication  with  M  by  email,  meaning  that  the  parents  have  to

communicate by letter.  His Honour commented on the unhelpfulness of this.  He is, with respect, absolutely right about that, but in any event it was not a matter that particularly influenced the decision and does not require further consideration.

[49]     Principle (d) is that a child should have continuity in his or her care and principle (e) is that the child should have a relationship with both parents and with her wider family group.7   These principles are both engaged by F’s submission that his relationship with Z has been wrongly uprooted by the decision.

[50]     There can be no doubt that the context for F’s relationship with Z has been significantly altered by this decision.  As I observed at the hearing, that in itself is not a reason to decline relocation.   If it were, no relocations would be approved

since, at least with international relocations, it is an inevitable consequence of one

5      Care of Children Act 2004, s 5(b).

6      Section 5(c).

7      Section 5(d) and (e).

parent relocation applications.   The key point is whether, given that inevitability, relocation is nevertheless in the best interests of the child.

[51]   In this regard there was no evidence to suggest that the proposed new arrangements, involving nine weeks living with F and otherwise regular phone contact, will be inadequate for Z and F to maintain a viable relationship.   It is a negative aspect of the relocation that a child’s contact with his father will be reduced from what would have been the likely new status quo, namely the arrangements put in place should the father relocate himself to Melbourne.  It is something that must be given proper weight, but for the reasons given, it cannot in its own right predominate.  It might in some cases be pivotal where the status quo is particularly desirable, but it will be, as the authorities say, a case by case assessment.

[52]     The final principle to comment upon is principle (f) which is that a child’s identity should be preserved and strengthened.8    In relation to this the Judge saw little distinction between New Zealand and Australia for the purposes of this issue.  I consider there is merit in Mr Matsis’ point that this principle is an obligation that will continue for both parents.  Relocation to Australia need not undermine Z’s identity as a New Zealander, nor his links to Wellington where his father and grandparents live. The parties are both obliged to ensure that is so.   It is something that should be feasible given the proximity of Australia to New Zealand and our numerous cultural

bonds.  The Judge’s observations should be seen in that context and are not in my view in error.

[53]     The real crux of the appeal in relation to all these principles is the issue of whether the evidence was really such as to satisfy the Court that moving to Melbourne was in Z’s best interests rather than being something M wanted.   The principles help focus this inquiry by articulating the various factors that make up a child’s best interest.

[54]     I can discern no error in the Judge’s approach, and bringing a separate mind

to the matter consider the evidence points strongly towards relocation being the preferable course for Z.   Relocation undoubtedly brings favourable outcomes also

8      Care of Children Act 2004, s 5(f).

for both M and her daughter, who is likely to benefit from the greater exposure to her father, his new family, and her grandparents and wider family.   But pivotally, it is what the evidence suggests is best for Z.

[55]     In  that  respect  I  observe  ongoing  contact  will  be  maintained.    M,  in accordance with the agreement, has already funded two trips to New Zealand for Z. M’s situation will be more stable, and she will have greater support.  That can only be a positive for Z.  The potential for conflict between parents is reduced, but more importantly the ability to shield Z from conflict is greatly enhanced.  Z will himself have exposure to a wider family group, and will have the opportunity for a more stable living situation and environment than exists now.

[56]    I recognise some of these improvements could have been effected with alterations to the New Zealand situation, but that is just one factor to weigh in the mix.  Nor do I consider the benefits to M of better work opportunities and support networks should be pigeon-holed as pertaining only to her.   There are inevitable flow-on benefits to Z that are rightly weighed in the balance.

[57]     Accordingly, I reject the appeal submission that the Judge wrongly weighed the various principles set out in the Care of Children Act 2004.

Appeal ground four

[58]     The final separate appeal point is that insufficient weight was given to the likelihood M would not comply with conditions.  Reliance was placed on an incident as to who should hold Z’s passport when in New Zealand.   It seems M gave it to counsel for the child rather than to the paternal grandfather as directed by the Court orders.   It is a relatively minor matter concerning which, as with all these things, there was a context.  From my viewpoint, what is more important is that it was given to an independent professional.  As an alleged example of something to which the Court should have paid attention, it lacks strength.

[59]     It is fair to observe the strength of this appeal point was probably intended to lie in the further evidence F wished to submit for the appeal.  For reasons detailed in a separate ruling, I declined to receive it.  On the available evidence I do not consider the Court erred.

Conclusion

[60]     No error by the Family Court has been established.  The outcome is one that is consistent with the thrust of the evidence, and I have not been satisfied a different outcome should have been reached.

[61]     My analysis thus far has deliberately focused on the appeal ruling, and on the evidence available at the time.  Considering only that, I am of the view the appeal should be dismissed.  Had I had any concerns, it would then have been necessary to address the reality that Z has now been living in Australia for eight months.  I would have been loathe to disturb that, at least without expert assistance as to Z’s current well-being  and  the  likely  impacts  of  another  shift.    However,  it  has  not  been necessary to explore that issue or call for further evidence.

[62]     The appeal is dismissed.

Solicitors:

Gault Mitchell Law, Wellington

D Booth, Barrister & Solicitor, Stratford

Simon France J