S v L
[2022] NZHC 3062
•23 November 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. IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2022-404-419
[2022] NZHC 3062
UNDER the Care of Children Act 2004 IN THE MATTER
of an appeal for a decision of the Family Court
BETWEEN
S
Appellant
AND
L
Respondent
Hearing: 8 June 2022 Appearances:
L J Kearns KC for Appellant J Moore for Respondent
A J Bell Lawyer for Child
Judgment:
23 November 2022
JUDGMENT OF PETERS J
This judgment was delivered by Justice Peters on 23 November 2022 at 12 pm pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date: ...................................
S v L [2022] NZHC 3062 [23 November 2022]
Introduction
[1] This judgment determines matters arising from orders made by Judge Goodwin in the Family Court in March 2022.1
[2] Two matters were before the Judge. The first was an application by S for a guardianship direction pursuant to s 46R of the Care of Children Act 2004 (“COCA”). The direction sought was that S should be allowed to relocate her and the respondent’s, L’s, children, aged eight and 11, to Tauranga. The Judge declined to make that direction.
[3] The second matter was the care arrangements in respect of the children, to be addressed under s 48 of COCA, if the children were to remain in Auckland. S sought to vary the existing arrangements for the care of the children, being that each parent was to have the care of the children for rotational, four day periods. If the children were to remain in Auckland, S wished that each parent should have the care of the children week about.
[4] The Judge declined this application also. Rather, for reasons addressed below, the Judge varied the existing arrangements to five nights to S and three to L, on the same rotational basis.
Principles
[5] S does not require leave to appeal the parenting order but does require leave to appeal the guardianship direction.2 Leave to appeal a guardianship direction will only be granted if the appeal raises a sufficiently important issue. A full exposition of the principles governing leave can be found in SFB v JEBH.3
[6] It is common ground that an appeal under ss 46R and 48 of COCA proceeds by way of a general appeal, and that the principles in Austin, Nichols & Co Inc v Stitching Lodestar apply.4
1 [L] v [S] [2022] NZFC 885.
2 Care of Children Act 2004, s 143(2).
3 SFB v JEBH [2015] NZHC 2897.
4 Austin, Nichols & Co Inc v Stitching Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
Background
[7] The parties separated in 2018. S was then in her early-30s and L in his mid-40s. For most of their relationship L had been employed at schools here and in Australia. In late-2019, L resigned from his then position and, in mid-2020, decided to retrain as a firefighter. L relocated to Rotorua for several months to this end, during which time the children remained in S’s care. L returned to Auckland in September 2020, where he has been employed as a firefighter since, with his days and hours of work dictated by a roster.
[8] In about August 2020, the parties reached at least a provisional agreement that they (still separated) and the children would relocate to Tauranga. However, as I understand it, on becoming aware that S had commenced a new relationship, L declined to consider relocation further.
[9] In January 2021, L filed a without notice application in the Family Court for an interim parenting order to the effect that the care arrangements would be “four days on, four days off”. This reflected L’s rostered work commitments. That is, L would have the children on the four days he was not required to work. The children would then be in S’s care for the following four days, whilst L was working. He would then have the children on the next four days and so on.
[10] The Court made the interim order sought but the circumstances in which it did so are controversial. In his affidavit in support of the application, L deposed that he and S had reached an agreement at mediation that the care arrangements would be as proposed in his application.
[11] S made an application to discharge the order which came before Judge Partridge in June 2021. The Judge described L’s evidence in support of his application, to the effect that the arrangements had been agreed at mediation, as “absolutely and unforgivably misleading” of the Court.5 The Judge set the matter down for a hearing which, for reasons I need not address, did not take place until earlier this year.
5 [L] v [S] [2021] NZFC 5499 at [26].
[12] Judge Goodwin declined to give the guardianship direction sought, determining that the welfare and best interests of the children were best met by their continuing to live in Auckland. Relocation to Tauranga would bring an end to the “shared care, equal time” arrangement that had largely been in place for the children since the parties’ separation in 2018.6 If the children relocated to Tauranga, the Judge considered it inevitable that L’s contact with the children would be much more infrequent than at present, and that considerable travel would be required, either of L to Tauranga or the children to Auckland.
[13] Turning to S’s alternative proposal of week on, week off, the Judge acknowledged that such an arrangement would be ideal and would present advantages to the children, not only in terms of fewer change-overs but greater continuity of care.7
[14] However, the difficulty the Judge foresaw was whether L could provide care under such an arrangement, given the dictates of his roster. The Judge said that it was not in the children’s best interests and welfare to place them in a care arrangement when it was unknown how this could work in practice for one parent.8
[15] Accordingly, the Judge left the existing care arrangements in place, subject to a variation which sees L returning the children to S at 7 pm on the evening of his last day of leave. This 7 pm changeover avoids L returning the children very early the following morning. Thus the varied arrangements provide for L to have the children for three nights, and S for five nights.
Submissions
[16] Mrs Kearns KC, counsel for S, contends the Judge erred in his guardianship decision, alternatively in the parenting decision. She submits that the Judge did not take sufficient account of what may be summarised as:
(a)L’s pre and post separation conduct in making unilateral decisions regarding his career and place of residence;
6 [L] v [S], above n 1, at [50].
7 At [53].
8 At [54].
(b)L’s agreement to relocate to Tauranga;
(c)L’s undoubted actions in misleading the Court in obtaining an interim parenting order, thereby creating a new “status quo”. This is a reference to the order made on L’s without notice application which Judge Partridge subsequently found was based on misleading information; and
(d)the implications, financial and otherwise, for S in maintaining the existing arrangement.
Discussion
[17] On a factual level there appears to be merit in Mrs Kearns’ submissions as to the manner in which L has conducted himself on occasions. Ultimately, however, the determinative issue is what is in the best interests of the children.
[18] I am not persuaded that the Judge erred in determining that those interests were best served by declining the application to relocate the children to Tauranga. Everything the Judge said regarding the consequences for the children of relocation is correct. Both children have expressed their wish to spend equal time with each parent. It is inevitable that the children’s contact with their father would be much less if they were to relocate, and the arrangement would require considerable travel.
[19] Accordingly, I am satisfied that it is in the best interests of the children to remain in Auckland.
[20]I decline leave to appeal the guardianship direction accordingly.
[21] I turn now to the Judge’s decision on the week on, week off arrangement that S proposes.
[22] As I have said, the Judge considered that such an arrangement would be ideal. Lawyer for the children, Ms Bell, considered this arrangement to be in the children’s best interests, and she continues to do so. Both children have expressed a preference
for longer periods of time with each parent, and thus fewer change-overs. Ms Bell summarises the children’s views as finding the existing rotational periods too short and disruptive. Those short periods mean that the children are required to carry around packed bags on a regular and more frequent basis than is desirable. The week on/week off would also be beneficial to S in her personal life and her professional commitments.
[23] The Judge declined to impose the week on, week off arrangement that S proposed, essentially because he did not know if it could be achieved. As I have said, the Judge said that it was not in the children’s best interests and welfare to place them in a care arrangement when it is unknown how this could work in practice for one of the parents.
[24] Having read the evidence given at trial, I am not persuaded that the proposed week on, week off arrangement was sufficiently investigated given that it is the course considered to be in the best interests of the children. They require a predictable schedule which, for instance, allows them to know which week they will be with their father and which week with their mother. It may be, of course, that some paid assistance is required to bring about this desirable end.
[25] I am not persuaded by Ms Moore’s submission, for L, that the children know their father’s roster and can deduce from that where they will be at any given time.
[26] In my view, it was an error, and not one made particularly by the Judge, not to pursue this option in a more determined manner. On the information before me, the parties, and L particularly, have not been pressed on how that arrangement can be brought into effect so that the predictability and stability the children require is achieved, roster or no roster.
[27] For that reason, I propose to remit this aspect of the appeal back to the Family Court to investigate when and how that arrangement may be achieved and to make such directions as it sees fit in the course of doing so.
Result
[28] I decline leave to appeal against the Judge’s order under s 46R of the Care of Children Act 2004.
[29] I allow the appeal under s 48 of the Care of Children Act 2004 and remit the matter back to the Family Court for reconsideration and directions in accordance with this decision.
[30] As each party has enjoyed a measure of success, costs are to lie where they fall.
Peters J
Solicitors: Simpson Grierson, Auckland
Holbrook Law, Auckland McVeagh Fleming, Auckland
Counsel:L J Kearns KC, Auckland J Moore, Auckland
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