P v P HC Napier Ap31/01

[2002] NZHC 1

IN THE HIGH COURT OF NEW ZEALAND
NAPIER REGISTRY

ORDER PROHIBITING PUBLICATION OF NAMES OF PARTIES OR THE CHILDREN OR ANYTHING TENDING TO IDENTIFY THE PARTIES OR THE CHILDREN

AP31/01

BETWEEN P
Applicant

AND P
Respondent

Hearing: 5 December 2001

Counsel: DG Matheson for the Applicant
LL Soljan for the Respondent
PJ Headifen with A McEwan for the children

Judgment: 7 January 2002

FURTHER JUDGMENT OF ELLIS J

Solicitors:
Gifford Devine, Hastings for Applicant
Shieff Angland , Auckland for the Respondent
Bannister & von Dadelszen, Hastings for the children

[1] This is an appeal by the father of two young children against the decision of the Family Court to allow the mother to take them with her to reside permanently in Wales.

[2] When this matter came before me on 17 October 2001 I appointed Mr Headifen to represent the two children in this Court and update his instructions. He was asked to obtain from Dr Richards-Ward a further report and the parties were to file further affidavits if they wished. Dr Richards-Ward reported and the case was called before me again on 3 December 2001 and I advised counsel that I had read the papers and that it seemed to me that it would be best for the children if the mother agreed to remain in New Zealand as the primary caregiver and that she and the children regularly visited Wales. It was agreed that finances for such were available and this proposal had the support of the father and Mr Headifen. It was too, the preferred option of the Judge in the Family Court. In that Court the mother explained that despite her best efforts, she could not settle in New Zealand and the Judge found that this was a decisive factor in assessing what was in the best interests of the children, and so allowed the mother to remove them to Wales.

[3] In reaching his decision the Judge quoted quite extensively from the decision of the English Court of Appeal in Payne v Payne [2001] 2WLR 1826 which discusses the mother’s wishes in such a case as this. Counsel and I were aware that our Court of Appeal had just heard a case which challenged Payne, but its Judgment had not been given. I indicated to counsel that my view was, subject of course to the pending decision, that the Court must treat the children’s best interests as the paramount consideration, as is enjoined by s 23 of the Guardianship Act 1968, and the consideration of the wishes and welfare of a parent was not to be considered as a matter of principle but as a matter of fact. As such, its significance in deciding what was in the best interests of children especially in a relocation case, depended on all the facts of that case.

[4] The mother was unable to agree to what I proposed. She filed a further affidavit to that effect. The hearing proceeded on 5 December 2001. Mr Matheson for the father submitted the Judge had relied too heavily on Payne and he was supported by Mr Headifen. By then the Court of Appeal had issued its decision in D v S (CA159/01, 4 December 2001) rejecting the approach in Payne and confirming the approach it had already taken in Stadniczenko v Stadniczenko [1995] NZFLR 493, which was, I think, in accordance with the view I expressed to counsel on 3 December. Ms Soljan supported the decision in the Family Court and submitted that while the Judge made significant reference to Payne, he dealt with the mother’s position as a relevant matter of fact when assessing the best interests of the children. At the conclusion of submissions, and having read all the relevant material, I indicated I had reached a decision and would deliver judgment without reasons in the interests of relieving the parties from waiting, if the parties agreed. They did, and I dismissed the appeal. The appellant now asks for my reasons.

[5] Bearing in mind what I have already related, and that I have already dismissed the appeal, I will not set out all the factual material which is very comprehensively related in the decision below. The critical factor is the mother’s intransigent desire to return to her family in North Wales. She claimed to be incurably homesick and unable to settle in New Zealand. Since the decision in the Family Court she has remained here, found some companionship, but says she cannot stay here. At the hearing in the Family Court she gave evidence. The parents and children were seen by Dr Richards-Ward. He gave his written report and gave oral evidence as well.

[6] The appellant father is Maori and he and his whanau live in or near Dannevirke. The respondent mother comes from North Wales where her extended family also lives. Both father and mother have travelled to and from Wales and New Zealand, and the mother’s family have visited here. The older child is T. She was born in 1995, so is now 6. The younger child is G. He was born in 1998 and so is now 3. In reaching his decision the Judge traversed all relevant aspects of the case in detail and concluded the emotional needs of the mother were of critical importance in deciding what course was in the best interests of the children. The appellant father, and Mr Headifen claim that he erred in doing so. I think it is best to set out several passages from his Judgment to show how he reached his decision.

“[71] Having regard to the nature of the father’s employment and the fact that the mother has said that she will not seek child support from him if she is living in Wales, it is clear that the father will be in a position to travel to Wales on at least two occasions during each year. During the course of cross-examination by Mr Headifen there were the following questions and answers:

“COUNSEL: It’s been put to you that really you could travel each year that’s on the basis of Ms P and the two children returning to Wales to visit that you could stay there for a period of time and it’s been suggested to you as long as two months some 8 weeks that you could stay with Ms P’s family while there and that that is a suitable option for you in terms of contact with your children. What are your comments on that and do you agree with it.

FATHER: firstly, if that was the case I would definitely travel there and to have contact with my children.

COUNSEL: Okay you were saying that if the Court said Ms P was, if the Court said your children were to return with Ms P to live in Wales you would go over there each year.

FATHER: yes I would go each year to visit them um I can’t see myself having two months to do that um to travel over there and stay for two months I don’t think that would work, it would be too long um but quality time is what I would be really interested in.

JUDGE: would it be more viable in fact although more expensive for you to go for two shorter periods each year.

FATHER: Yes, yeah have a lesser lesser time with them but quality time and more often.

COUNSEL: How do you think Ms P would react to you being in Wales and having the children with you on your own and they with you alone for periods of time.

FATHER: I’m sure she would encourage it.”

“[72] It is clear that, even if the husband was prepared to move to Wales to live near the children if they are to be there, he is unlikely to be able to work because of the United Kingdom Government restrictions.

Ranking

“[73] I have summarised the evidence in respect of the four main factors relevant to the decision in this case, noted in paragraphs 13 to 16 of this judgment, namely -

• The importance of regular physical contact between the two children and both their parents;

• The need for the children to be brough up with an understanding and appreciation of their two primary cultures, Maori and Welsh;

• The unhappiness of the mother should she be required to stay in New Zealand and how that may impact on the children;

• The regard or respect which each parent has for the other.

“[74] Towards the end of his evidence I asked Dr Richards-Ward to rank these factors in order of importance. His answer was as follows:

“I would think of it in terms of building it from the children’s basic to more complex needs. In that regard in order for them to have a mother who is able to provide care for them safely and to the best of her capacity, she needs to be happy and I probably would rank that as number 1. I would rank the second need as being the need for physical contact because that bears on the issue of building beyond basic safe relationships into a more fulfilling relationship in that it enhances the quality of a relationship. That quality already presupposes safety. Culture I tend to tank last because I think that is the cumulative effect of all of the other things that happen in a child’s life in situations including the people that child grows up with.”

There then followed the following two sets of questions and answers:

“JUDGE: Do those rankings remain constant or do they change as the children grow older. . .

WITNESS: I think they probably do change because say for example the extreme end of a child who perhaps didn’t have any significant exposure to culture when they became an adolescent and are beginning to form their identity, obviously then culture becomes quite integral to identity formation, so that would assume greater importance than perhaps physical contact with an absent parent.

JUDGE: So in this case whichever way the decision goes, it may well be that these parents will have to decide at some point that perhaps there ought to be a change in the country in which the children live.

WITNESS: Is that right. . .I think that’s probably very accurate.”

And later:

“Discussion

[86] If it was not for the mix of cultures in this case the decision would be a relatively easy one to make. As was the position in such cases as Payne, the depth of the mother’s unhappiness at being required to remain living in a country which is not her own and the inevitable detrimental impact of that upon the children’s well-being, would be the factor which would lead to the finding that, consistent with s 23 of the Act, the mother should be permitted to relocate with T and G to Wales.

“[87] It is clear from the evidence of Dr Richards-Ward that the mother has displayed signs of clinical depression. He does not see her being able to get to the point of regarding New Zealand as her home. As I interpret his evidence, the mother’s unhappiness is not likely to be alleviated by her being able to visit Wales on a regular basis (and really at present it could be no more than once a year). This is associated with her level of hiraeth (referred to in paragraph 52 of this judgment).

“[88] Although it can only be conjecture, the history of the mother’s feelings of isolation and homesickness (which no doubt influenced her decision to leave the country suddenly in October last year) can give me no great confidence that she will be able to come to terms with any decision that requires her to remain in New Zealand. Indeed, it would be fair to say that the psychologist has a concern that her unhappiness could develop into something more depressive in nature, perhaps leading to a deterioration in her mental well-being.

“[89] It is clear that the impact on the children of their mother’s likely reaction - both short and long term - to having to remain living in New Zealand is almost inevitably going to be negative in terms of their ‘emotional and physical stability and security’ (per Thorpe LJ in Payne at paragraph 30). Such stability and security is essential to the welfare of T and G; they will only receive it from the parent (in this case, the mother) who is the primary caregiver. As the learned Judge pointed out in Payne at paragraph 31, she ‘cannot give what she herself lacks’.

“[90] Before turning to the need that these two children have to experience their two primary cultures, I should discuss the other two main factors in this case, namely, the importance of regular physical contact with both parents and the regard of respect which each parent should have for the other.”

And later:

“[96] What has given me the most concern in this case have been the consequences for these two children if they are to live in Wales and therefore to be divorced, in both a physical and a cultural sense, from their Maori heritage. I have no doubt at all that, even with the best will in the world, the mother will not be able to advance their understanding and appreciation of Te Reo Maori and Tikanga Maori. That will have to be left to their father on his visits to Wales and, when they are older, for those occasions when the children travel to and spend time in New Zealand.

“[97] If T and G remain in New Zealand they will at least have their mother’s presence to ensure that they have Welsh as one of their languages and to give them some knowledge and understanding of their Welsh culture and background. All that will be in addition to what they are able to gain from ongoing physical contact with and immersion in their P whanau and their Maori culture and heritage.

“[98] I accept the submission made by Ms Soljan that this is not a situation of two cultures (Welsh and Maori) in New Zealand one (Welsh) in Wales. Nevertheless, the advantage to T and G of living in New Zealand must not be underestimated.”

And later:

“[102] The Court needs to be satisfied that the mother is not intent on excluding the father here from the children’s lives. I am satisfied that she recognises that T and G need their father and that he is very important to them. Her motivation is founded in her belief that she will only be happy if she is able to live in Wales with her children. As I have already said, all counsel and the psychologist were satisfied that the mother’s unhappiness was genuine. In my view, her application too is genuine.”

And later:

“[106] . . .This comparison between the two scenarios shows that the optimum for these children (in terms only of their relationship with both parents) would be a decision which leaves them here in New Zealand.”

And later:

“Overriding review of the children’s welfare as a paramount consideration

[108] This brings me back to the ranking placed on the four main factors provided by Dr Richards-Ward. It will be recalled that he regarded the mother’s need to be happy as the most important, followed by the need for physical contact, then parental regard and, finally, the need for an understanding and appreciation of the Maori and Welsh cultures.

“[109] In my view, one can argue about the ranking of those factors which he placed second, third and fourth but if the Court is satisfied that the nature and extent of the mother’s unhappiness here is such that it has the very real potential to impact adversely on her ability to care for her children, and therefore upon the children’s own psychological well-being, then the factor which this expert placed at the top of the list will be that which determines the outcome of this case. Such an approach is consistent with the importance which the Court in Payne attached to the emotional and psychological well-being of the children’s primary carer; see paragraph 41, set out in paragraph 28 of this judgment. And note also the comments made in the other cases cited earlier in this judgment.

The Decision

“[110] This has not been an easy case to determine; the time that it has taken to deliver this judgment is testament to that. In the final analysis, the decision has boiled down to the respective weights to be placed on and importance to be attached to what I regard as the two crucial factors, the mother’s unhappiness and the children’s cultural needs.

“[111] I have come to the conclusion that it is the need for this mother to be happy which determines the result of the applications before the Court. All the cases have emphasised the great importance of this factor and how a parent’s unhappiness is likely to impact on the welfare of the child or children. I am satisfied that mother’s unhappiness is genuine and I am satisfied that it goes beyond a mere understandable desire to return to her homeland. I am convinced, not only by the evidence of Dr Richards-Ward, but also by the evidence of the mother herself and the way she gave it, that a failure to permit her to relocate with the children to Wales will amost inevitably lead to a lack of security and stability, both emotional and psychological, in the children that will inevitably lead to a situation where they will not function as well as they should and where they are unlikely to achieve their full potential.

“[112] If the price to pay for the children’s long term stability and well-being is a lessening of their knowledge and understanding of their Maori language and culture (at least in their early years), then that is a necessary consequence of what has occurred within this family.

“[113] I believe that the decision to which I have come is one which is consistent with what is contained in s 23, namely, that the children’s welfare is the Court’s first and paramount consideration.”

[7] It seems to me that the Judge looked at the facts and opinions from all angles, not only the immediate situation, but also access, a possible return to New Zealand, and finally counselling. It is obvious too he was always aware of the overriding effect of s 23.

Payne v Payne

[8] In D v S the Court had this to say about the English case:

“[50] Further, Paynev Payne is not an appropriate model for New Zealand courts. The guideline approach in Payne v Payne, with a clear emphasis on one only of the relevant factors to be weighed, is inconsistent with the approach required in New Zealand and not helpful as a reference point unless particular passages in the judgments are carefully identified and placed in a New Zealand context.”

[9] Our Court of Appeal summarised the law in New Zealand in paragraphs [25] through [38] and referred to J v C [1970] AC668, G v G [1978] 2NZLR 444 and later to Stadniczenko. In the present case the Judge set out the law he relied on in paragraphs [18] through [20] and concluded with a reference to Payne which he described as “relevant and highly persuasive”. He then set out the well known passage in the judgment of McKay J in Stadniczenko (at page 500), discussed two Australian cases and then devoted seven paragraphs to Payne. He expressly referred to the “somewhat different approach” when comparing it with Stadniczenko (para [26]) and said:

“However, the importance of what is said in Payne, when it is applied to the facts of the present case, relates particularly to one of the four main factors identified in paragraphs 13 to 16, namely, the significance of the mother’s unhappiness.”

[10] While the Judge quoted passages from Payne that were expressly criticised in D v S, I am satisfied that he did so simply to find support for his emphasis on the importance, in this case, of the mother’s need to return to Wales. I do not think he elevated it to a matter of principle, rather he thought it a very important matter of fact bearing on the application of s 23 - an assessment of all the facts in the round. While I think it is fair to say perhaps too much prominence was afforded to Payne, I am satisfied, as was Blanchard J in D v S that the Judge directed himself correctly to the law now confirmed in D v S.

[11] It is plain that after hearing the parents and Dr Richards-Ward, the Judge based his decision by looking at the facts overall and concluding that it was better for the children to be with their mother in Wales rather than with their mother in New Zealand. It was not in issue whether or not the mother should be the primary caregiver.

[12] The passage of some seven months since the Family Court hearing has not made it easier to decide this matter. To help define the problem I set out the last parts of Dr Richards-Ward’s updated report of 19 November 2001. He reported on both parents and both children and said:

“Both parties indicated that they had attended counselling.

Ms P said that she attended three sessions; Mr P attended one session. Mr P said that he was not in the right frame of mind to attend counselling after having so soon received the Family Court decision. He says that he would be more able to engage in counselling now.

If counselling is ordered again, and it is important that the parties understand that they cannot operate without actively respecting the other, the issues that need to be addressed include:

• Implementing practical steps to allow the parents to discuss the children’s needs. There is still an undercurrent in Mr P’s attitude that he really does not have to discuss issues with Ms P if he chooses not to.

• Addressing perceptions of how power and control is negotiated in the parenting relationship. In particular, there has been a theme throughout the relationship whereby Ms P feels Mr P controlled her and continues to do so in preventing her relocating to Wales. If she is not able to return to Wales, it is vital that both understand that this is not because Mr P has ‘won’ and hence asserted control over Ms P.

• For Mr P to understand that impact of his actions on Ms P and to adopt a more conciliatory approach. An example of this is how when he was asked how Ms P is to maintain the same relationship as he wants for his family with hers, he replied that she would have to work to pay for travel to Wales. There was no indication that he felt at all responsible for the situation, or even that if he wasn’t that it might be in the children’s interests for him to assist them in maintaining their ties to Wales in some manner.

GRIEVING THE LOSS OF THEIR RELATIONSHIP

Both parties appear to have moved on relatively quickly in terms of grieving the end of their relationship. Both appear to have entered new relationships whilst the outcomes of the end of their relationship are indeterminate.

PARENTING CAPACITY

Ms P alleged that now the children are cared for a lot by Mr P’s parents and that this includes them being apart from him on occasions. Mr P’s response is that this is part of the experience of an extended family and in any event is an issue between he and the children. From the viewpoint of the children, there are no data to suggest that the extended contact with family/whanau is other than positive for them.

Ms P’s clear priority is raising their children and motherhood. Mr P’s priority appears to be his work in terms of how he allocates his time, but with the condition that he views work as an important social value to promote to the children.

ANY CHANGE IN THE MOTHER’S REGARD FOR THE FATHER IN THE INTERVENING PERIOD

Ms P continues to support contact between the children and their father.

However, as she also continues to hope that she and the children will return to Wales, it might also be inferred that she does not place his role as a father above the factors upon which she bases her choice to return. Given the ages of the children, it seems reasonable to agree with Mr P’s comment that being a father in a ‘real’ sense would be precluded if the children lived in Wales and he was here. Even with the advantages of modern telecommunications, it is not possible to experience the type of relationship between a father and child that is had when all of them are physically together. This is even more important in both cultures as both cultures rely on oral and experiential traditions for the transmission of social and other values.

ANY CHANGE IN THE CHILDREN’S UNDERSTANDING OF THEIR TWO PRIMARY CULTURES

G’s understanding of his cultural milieu is for all practical purposes likely to be the milieu he currently lives in.

T has a concept of being both Welsh and Kiwi. She seems equally comfortable about being both and there are no pressing data to indicate that she longs more for one set of experiences over the other.

THE CURRENT STABILITY AND SECURITY OF THE CHILDREN IN RELATION TO THEIR HOME AND SCHOOL/KINDERGARTEN ENVIRONMENT

Both children appear to have settled into their present environment and routines. This is not unexpected and is a result of the positive parenting of both Mr P and Ms P.

ANY CHANGES IN THE PERSONAL CIRCUMSTANCES OF EITHER PARENT WHICH COULD AFFECT THEIR OWN WELL-BEING (NEGATIVELY OR POSITIVELY) AND THAT OF THE CHILDREN.

Mr P is not in a relationship that, according to him, has assisted him in feeling happier and more able to interact with Ms P positively. The data, from Ms P’s perspective do not indicate that she views his attitude toward her as any more positive.

Ms P has recently been in a relationship. She indicated that both parties accepted that the relationship would only be until she returned to Wales. The benefits to Ms P of the relationship were that she felt supported and was able to have her needs for intimacy met.

Ms P’s relationship has raised several issues in terms of its impact on the children and the overall situation:

1. Initially there is reported to have been some confusion for the children. This was not discussed between the parents due to the state of their own communication process.

2. It has created the impression that Ms P could make a life for herself here if she had a mind to and would not be so debilitated by remaining here that inevitably there would be a negative impact on the children.

3. If Ms P had not taken reasonable steps to address her own distress at remaining here she might have been viewed as failing to place the children’s interests before her own. That she has taken steps to resolve her mood issues is now unfortunately working against her simply because she took these appropriate steps in New Zealand rather than Wales. It is also importance to note that she has taken these steps in the context of having the hope that she will be allowed to return to Wales.

4. There is likely to be an ongoing resentment between the parents either if Ms P is allowed to return to Wales or if she remains here. The impact on the children will be that both are likely to be raised in a climate where there is less than appropriate communication and respect between parents.

ANY CHANGE IN THE CHILDREN’S WISHES AS TO WHO THEY WANT TO LIVE WITH AND WHERE THEY WANT TO LIVE

T did not directly articulate any wishes as to which country she desires to reside in.

Indirectly, there are data indicating that T would like to be spending time with her family in Wales and also that she expects to be spending time with her family in New Zealand.

T’s only openly expressed view is that she is both Welsh and Kiwi. This represents a change from previously where it seemed that she identified more with her Welsh heritage. In the context of 7 months elapsing since the previous report, during which she has lived in Dannevirke, this is unsurprising.

SUMMARY

Integral to the present update is the paradox that if Ms P had returned to Wales, the situation for the children would probably have been different to the one that exists. That she has also made an active attempt to improve her situation reflects well on her focus as a parent but again undermines any argument that she will truly be disadvantages if forced to remain in New Zealand. Nevertheless, Ms P continues to feel separated from those who truly support her and to long to return to Wales.

From the children’s perspective, they both have adapted to living in New Zealand at a day-to-day level and there is no reason to expect that this would change were they to remain here.

From Mr P’s perspective, he is still working in the job he has always worked at, has a new relationship for companionship, lives in the family home and sees his children frequently. While he presents as a concerned and committed father to his children, it remains a concern that he has yet to demonstrate any significant (practical) compassion toward Ms P and her situation.

Finally, in order to highlight to the parents the factors that are likely to have a significant impact on their children’s future, a recent review of extant literature relating to divorce and child outcomes is appended (Appendix 2).

I hope that this update assists in highlighting the relevant psychological factors impacting on T, G and their parents.”

[13] Viewed objectively, it can be said that the passage of time has made the decision whether or not to allow the mother to take the children to Wales more finely balanced. I accept that in general terms there is much to be said for the view sometimes expressed that a person in the mother’s position “should try harder”. That idea was behind what I suggested to counsel on 3 December 2001. However, in the end the Court must stand back, look at all the evidence and ask which course is in the best interests of the children. Further, as this is an appeal, the Court must accept that the Judge below had the advantage of seeing and hearing the parties. It is important too to recognise that the Judge is an extremely experienced specialist Judge in the Family Court, who reserved his decision and covered every factual detail with great care and I have already found he made no error of law. In my view his only error, if that it be, was to give too many paragraphs to Payne.

[14] Making all proper allowances and looking at all the evidence, including the updated report of Dr Richards-Ward, I am satisfied that the Judge made the correct decision and for these reasons I dismissed the appeal.

[15] The hardest thing for parents to do in these very difficult situations is to refrain from viewing the outcome of a Court decision as a win or a loss. The welfare of children is an ongoing thing, not frozen at the date of the decision. Access, regular visits, and contact by telephone, e-mail and video recordings are all available to these children. While the next few years may be hard for the father, opportunities will improve and things may change. The counselling ordered by the Family Court should be completed and there may be other matters of detail which can be settled by the Family Court if the parties cannot agree.

[16] I confirm there will be no order as to costs.