S v N
[2022] NZHC 2837
•1 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. FOR FURTHER INFORMATION,
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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2022-485-328
[2022] NZHC 2837
UNDER the Care of Children Act 2004 BETWEEN
Ms S Appellant
AND
Mr N
Respondent
Hearing: 29 September 2022 Counsel:
T L Whelan (by VMR) for the Appellant
D C Dunbar and L S Curran for the Respondent
Judgment:
1 November 2022
JUDGMENT OF GWYN J
(Application for leave to appeal decision under s 46R of the Care of Children Act 2004)
[1] This proceeding concerns the care and guardianship arrangements for T and B (collectively, the children). T is seven years old and B is five years old. They are the children of Ms S and Mr N, who are the parties to this application.
[2] This is an application under s 143(2) of the Care of Children Act 2004 (the Act) for leave to appeal a decision of the Family Court under s 46R of the Act.
S v N [2022] NZHC 2837 [1 November 2022]
[3] The Family Court decision in question is a decision of Judge T M Black dated 15 May 2022,1 in which the Judge declined Ms S’s application for:
(a)a Parenting Order providing for her to have day to day care of the children in Ireland; and
(b)a Guardianship Direction that she may relocate the children to Ireland.
[4] In the Decision, Judge Black declined the Guardianship Application to relocate the children to Ireland and made a final Parenting Order providing for equal shared care of the children between Ms S and Mr N on a week about basis, with provision for holidays, including periods of time for Ms S to travel back to Ireland with the children to visit family.
Background
[5]The parties were married in April 2014 and separated in August 2018.
[6] The initial Family Court proceedings started in August 2018. A Final Parenting Order was made by consent on 17 April 2019.
[7] Ms S filed an application to vary the Parenting Order on 25 June 2020, together with an application to settle a dispute between guardians (whether T could attend play therapy). On 28 August 2020, Ms S filed a further application to settle a dispute between guardians, seeking to relocate with the children to Ireland.
[8] On 1 September 2020 Ms S filed an affidavit from Dr Sarah Calvert, a psychologist, with respect to Ms S’s psychological health.
[9] A Directions Conference was held in the Family Court on 11 November 2020 before Judge Black. The Judge recorded:2
[2] I have discussed with counsel today and there is agreement that effectively this matter needs to be managed in two parts. That is because the basis of the relocation application is [Ms S’s] psychological health, I am
1 S v N [2022] NZFC 4398 (the Decision).
2 S v N FC Porirua FAM-2018-091-000308, 11 November 2020 (Minute) at [2].
paraphrasing, and in support of that proposition, evidence has been filed from Dr Calvert. Dr Calvert, and I mean no criticism or intend no criticism of her, expressly acknowledges in her evidence that the narrative of facts which underpins her opinion evidence, comes solely from [Ms S]. Dr Calvert has not seen the pleadings, has not spoken with [Mr N] and I emphasise I am not intending criticism of Dr Calvert in that regard, but in that context, given that the narrative includes an allegation that [Mr N] is an alcoholic, who has relapsed on a number of occasions and is at risk of further relapse and also that he has behaved in physically and psychologically abusive ways towards [Ms S], there need to be findings of fact in relation to those two propositions and it makes sense that those findings of fact are made prior to the substantive hearing about relocation because the opinion evidence of the experts, Dr Calvert and s 133 report writer, may change depending on the outcome of that fact finding exercise.
[10] On 29 April 2021 the hearing directed by Judge Black was held before Judge Grace. Judge Grace’s reserved decision, released on 10 May 2021, recorded:3
(a)In respect of psychological violence, no findings that Mr N was responsible for psychological violence. Judge Grace noted that even if he was incorrect about that, since the parties separated (in 2018), there had been no issue pertaining to psychological or physical violence; and
(b)In respect of alcohol, there was no finding that Mr N had alcohol dependency and the Judge held that “the level of risk that [Mr N] would pose to these children is minimal”, and in those circumstances, a condition that he does not consume alcohol while the children are in his care would be “unrealistic”.
[11] Subsequently, Judge Grace’s decision was provided to Dr Calvert and to the s 133 report writer, Kevin Garner. Both were given the opportunity to update their reports in light of the Court’s findings.
[12] Mr Garner filed a brief updating report dated 3 August 2021, confirming that the Court’s findings were consistent with his own report and that his opinion on the advantages and disadvantages in relation to the options for the children’s care did not need to change as a result of Judge Grace’s decision.
3 N v S [2021] NZFC 4211 at [60], [73], and [76].
[13] Dr Calvert did not update her report, although she had said in her report that her “views may be altered if the Court was to find some information, on which I have relied, may be inaccurate or given a weight which was inappropriate.” Subsequently, Ms S did not file any updating evidence from Dr Calvert, prior to the hearing in February 2022.
[14] At the hearing in February 2022, Judge Black heard oral evidence from the parties, Mr N’s partner, Dr Calvert and Mr Garner. The Judge noted that a number of witnesses were not required, or not available, for cross-examination.4
Grounds of the application
[15]The appellant says that the District Court Judge made an error of law in:
(a)Failing to give proper weight to her mental health difficulties and the potential impact that may have on the children if the relocation application were declined.
(b)Failing to give proper weight to Dr Sarah Calvert’s expert evidence on that issue.
(c)Concluding that it was unnecessary to analyse whether a move to Ireland would improve the appellant’s mental health because the current state of her mental health is not impacting on her parenting.
(d)Failing to give proper weight to the benefits of the children of being around maternal family, particularly if they develop the appellant’s genetic hearing disorder.
[16] A further ground that the Judge wrongly concluded that the quality of the appellant’s relationship with her family, and in particular her mother, was “questionable”, was not pursued at the hearing before me.
4 The Decision, above n 1, at [32]-[35].
[17] The appellant has framed the balancing exercise undertaken by the Family Court Judge as a weighing of the risk to the children of weakening their relationship with their father and paternal family against the risk that their mother’s mental health would continue to decline to the extent it impacted on her parenting of the children.
[18] The Family Court Judge was also asked by the appellant to consider the benefits to the children of being immersed in their Irish family culture and having the hands-on support of their maternal family. The appellant says this was particularly important given her genetic hearing disorder (which several of her Irish family members also have) and which the children may develop.
[19] The appellant acknowledges that the importance of the issue needs to be weighed against the need for stability in the children’s life and the inevitable cost and delay of an appeal, but says that the appeal will not create significant instability for the children.
[20] The application is opposed by Mr N. Ms Dunbar, for Mr N, says that the Judge:
(a)Did give appropriate weight to the appellant’s mental health and the potential future impact of that.
(b)Gave appropriate weight to Dr Calvert’s evidence.
(c)Was correct to conclude that he did not need to analyse whether a move to Ireland would improve the appellant’s mental health because there was no evidence to suggest that her mental health was having an impact on her parenting.
(d)Appropriately balanced the potential benefits to the children of being with their maternal family in Ireland and the attenuation of their existing relationships if they were to relocate.
(e)Was right to conclude that the appellant’s family in Ireland would not be able to do much to foster the relationship between the children and the respondent.
(f)Correctly concluded that there was “some question mark” around the quality of the appellant’s relationship with her family in Ireland, particularly with her mother.
[21] In particular, counsel for Mr N says that the evidence advanced in support of the appellant’s application simply did not support the conclusions regarding the potential impact of the appellant’s psychological health that the appellant advocated for. Other evidence before the Court demonstrated that the children are thriving under the current arrangements and that their welfare and best interests militated against the application being granted.
Legal principles
[22] When deciding whether leave to appeal should be granted the first and paramount consideration is the welfare and best interests of the children.5
[23]In SFB v JEBH, Toogood J summarised the relevant principles and stated:6
A decision whether to grant leave must be based on the first and paramount consideration of the welfare and best interests of the child. In general, bearing that consideration in mind, the Court will need to be satisfied that the issue is sufficiently important to be subject to an appeal notwithstanding: (i) the nature of the decision; (ii) the need for stability to be brought to the life of the child and (iii) the inevitable cost and delay inherent in appellate review.
(Footnotes omitted)
[24]Noting the statutory requirement for leave, Toogood J said:7
In allowing appeals of decisions under s 46R of the Act to proceed only with the leave of the Court, Parliament must have intended that some, but not all, decisions under the section [s 46R] that resolve disputes between guardians should be subject to appellate review. By imposing the leave requirement,
5 Care of Children Act 2004 (the Act), s 4.
6 SFB v JEBH [2015] NZHC 2897 at [8(d)].
7 At [8(a)].
Parliament understood that there was a need for finality and that not all challenges would warrant granting leave.
(Footnotes omitted)
[25] The Judge also noted that, because there is no further right of appeal against a decision under s 46R, beyond an appeal to this Court, the Court will generally be more willing to grant leave.8 Where the decision reached by the Family Court has long term implications for the welfare of a child, leave will be more readily granted.9
[26]In PJKW v DAR Heath J said:10
If a material error of law can be identified as seriously arguable, and prejudice may result if leave were not granted, it is likely that leave would be granted. Further, alleged errors of fact may be sufficient, particularly where it is alleged that a Judge has made a factual finding on a material issue for which no evidential foundation was available.
[27] In ACCS v AVMB, Panckhurst J considered a case similar to this in that it involved the possible relocation of one parent, with the child, from New Zealand to the United Kingdom.11 Justice Panckhurst did not disturb the order made by the Family Court Judge authorising a change in the child’s residence to the United Kingdom as he found no error on the part of the Judge. While noting that the case was “one of those difficult residence disputes in relation to which there is not necessarily one right answer”, Panckhurst J dismissed the appeal on the basis that the Family Court Judge reached a conclusion which was open on the evidence.12
Discussion
[28] I have considered the submissions from each of the appellant and the respondent, having regard to the specific grounds of appeal but noting that there is considerable overlap in those grounds.
8 At [8(b)].
9 At [8(c)].
10 PJKW v DAR (Guardianship) [2006] NZFLR 946 at [44].
11 ACCS v AVMB HC Christchurch CIV-2005-409-002492, 5 May 2006.
12 At [72].
Cost and delay of appeal
[29] Considering the relevant principles, I discuss first the inevitable cost and delay inherent in an appeal, if leave were to be granted. While I acknowledge Ms Dunbar’s submission that this litigation has been on foot since 2018 – a very significant portion of the children’s lives – it appears that, at a day-to-day level, their lives would not be interrupted if leave were granted. The evidence is that they will remain living in the same place, attending the same schools and carrying out the same activities, with the same shared care arrangements. For that reason, I do not consider this factor further.
“Important matter”
[30] Disputes involving ‘important matters affecting the child’, as defined by s 16(2), are more likely to be of a type justifying leave than others.13 Here, it is not disputed that the possibility of relocation of the children to another country is an “important matter” affecting the children.14 Plainly, a relocation of the nature proposed would be of the greatest significance for the children and have long term implications for both them and the parties.
Seriously arguable material error of fact or law
[31] In my view, the application turns on the question whether, notwithstanding the significance of the decision at issue, there is a “seriously arguable material error of fact or law”.15
[32] As Ms Dunbar identified, the key issue in the application (as it was before the Family Court) is Ms S’s psychological health and its possible impact on the children. The first three of the grounds advanced in support of the application (set out at [15] above) hinge on this question. Central to that issue, is the evidence of Dr Sarah Calvert. Dr Calvert’s evidence, together with Ms S’s own oral evidence at the hearing in the Family Court, is the only evidence that Judge Black had on this specific issue (although I note that Mr Garner did express a view on whether Ms S’s mental health had any apparent impact on her parenting of the children).
13 PJKW v DAR, above n 10, at [43].
14 Act, s 16(2)(b).
15 SFB v JEBH, above n 6, at [8(f)].
[33]Judge Black identified significant limitations in Dr Calvert’s evidence:
(a)Her assessment was based on only one, semi-structured meeting with Ms S in about August 2020.
(b)Dr Calvert did not meet with Mr N or the children.
(c)Dr Calvert had not had access to the pleadings in the case.
(d)Dr Calvert acknowledged that the absence of other sources of data was a “significant limitation” on the views she had formed.16
(e)Dr Calvert’s evidence was not updated after her affidavit filed in September 2020, notwithstanding Judge Black’s minute of 11 November 2020, the subsequent factual findings of the hearings before Judge Grace and the s 133 report presented by Mr Garner and Dr Garner’s own acknowledgment that her “views may be altered if the court was to find that some information, on which I have relied, may be inaccurate or given a weight which was inappropriate”.17
[34] In evidence in the Family Court, Dr Garner’s opinion on Dr Calvert’s methodology in this case—of writing a report based on information from that party only—was that it involved an inherent bias that is exceedingly difficult to overcome for a report writer. Dr Garner considered that he would have revised his findings if he had been in Dr Calvert’s position and expressed surprise that Dr Calvert chose not to do the same.
[35] The Judge similarly observed that it was “remarkable” that Dr Calvert was not prepared to revise her conclusion in light of the findings of the hearing before Judge Grace.18 The Judge went on to say:19
16 The Decision, above n 1, at [74].
17 At [75].
18 At [81].
19 At [82].
[82] The lack of data triangulation, and Dr Calvert’s refusal to consider revising her views, notwithstanding she indicated in her report that she would revise her views if the facts relied upon turned out to be different lead me to the point where I am unable to consider her opinion evidence is reliable in relation to this aspect of matters.
[36] Judge Black concluded that there was nothing in the evidence which established that Ms S’s mental health issues are a current issue for her parenting.20 He therefore concluded that it was not necessary to consider whether a move to Ireland would improve her mental health.
Weight given to appellant’s mental health
[37] Ms Whelan submitted that Judge Black’s finding that Dr Calvert’s evidence was not reliable related only to her position on the respondent’s alleged violence and use of alcohol, and refusal to revise her views following the hearing before Judge Grace. However, the Judge did not question Dr Calvert’s evidence as to Ms S’s mental health issues.
[38] It is correct that Judge Black accepted the evidence that Ms S suffers from depression and PTSD, and anxiety at subclinical levels.21
[39] I conclude that the Judge did give appropriate weight to that evidence. The nub of the appellant’s application is about the consequences of accepting that Ms S suffers from those conditions, in terms of the potential impact on the children and what is in their best interests. That question is raised by the other grounds of the application.
Failure to assess whether the appellant’s mental health would improve if relocation
was allowed
[40] The lawyer for the children who appeared before Judge Black did not support the submission that the children had been adversely impacted to date by Ms S’s mental health.22
20 At [96].
21 At [84].
22 At [58].
[41] Judge Black observed23 that Dr Calvert (properly, as the Judge noted) did not offer any opinion as to impacts of Ms S’s mental health on her ability to parent T and B.
[42] Judge Black concluded that, on the evidence available, Ms S’s psychological health had no current impact on her parenting of T and B. The Judge’s view that it was not necessary to consider the impact of a move to Ireland, logically followed from that conclusion. In any event, as the Judge noted,24 the evidence on this question was, perhaps inevitably, speculative at best.
[43]The Judge’s decision not to consider this question was not an error of law.
Failure to give proper weight to the benefits to the children of being surrounded by
family in Ireland
[44] The Judge did address and weigh the potential benefits for the children of relocation, separate from the possible impacts of an improvement in Ms S’s psychological health.
[45] The Judge accepted that it would be beneficial for the children to be immersed in their Irish culture and that such immersion would improve their understanding and connection with the culture.25
[46] The Judge did raise a “question mark” about the quality of Ms S’s relationships with her Irish family, particularly her mother,26 and also noted that Ms S had not lived in Ireland since she was 23.27 For those reasons he concluded that relocation offered potential, but untested, benefits in terms of broader relationships.28 On the other hand, relocation would result in attenuation of the children’s relationship with their paternal family.29
23 At [91].
24 At [97].
25 At [124]-[125].
26 At [117].
27 At [118].
28 At [119].
29 At [121].
[47] Overall, the Judge concluded “wider family relationships are neutral”, but that relocation would pose a significant risk to the children’s relationship with their father.30
[48] The Judge also noted the desirability of continuity in the children’s care arrangements.31 He observed that they had lived in Waikanae for most of their lives, and referred to Mr Garner’s evidence that the parties have provided “good quality”, stable care to the children. Mr Garner posed the question whether that could be replicated in Ireland, observing “we ought to question, from the children’s perspective, why give up something that is working…”.
Outcome
[49] I accept that in cases where relocation is involved, the starting point may be that it is appropriate to grant leave to appeal. But it is no more than a starting point. I do not accept that leave should be granted in every case involving the possibility of relocation. This is not a relocation case such as ACCS v AVMB, where Panckhurst J said that “… it was unthinkable that this decision as to relocation [from Christchurch to London] should not be susceptible of appeal to this Court.” 32 There, the decision was finely balanced. In this case, as Judge Black said, “… I conclude that by significant margin it is not in the children’s welfare and best interests for relocation to take place…”.33
[50] I accept Ms Dunbar’s submission that it is very difficult to see how another Judge, on appeal, could come to a different decision as to the significance and potential impact of Ms S’s mental health issues on the basis of the evidence which was before the Family Court.
[51] I conclude that there was no error of fact or law on the part of Judge Black. Rather, the evidence before the Family Court did not support the conclusions argued for by the appellant.
30 At [123].
31 At [103]-[105].
32 ACCS v AVMB, above n 11, at [9].
33 The Decision, above n 1, at [136].
[52] For completeness, I note that s 139A of the Act would allow Ms S to make a further application for a Parenting Order and Guardianship Direction, enabling her to have day-to-day care of the children in Ireland and to relocate the children in Ireland, after the expiry of two years, or earlier if there was a “material change” in the circumstances of either party and/or the children.34 That seems to me to be an adequate safeguard in the event that Ms S’s mental health were to deteriorate and/or to have an adverse impact on her parenting of T and B, or if the parties’ circumstances otherwise change.
Result
[53]The application for leave to appeal is declined.
Costs
[54] I expect that the parties should be able to reach an agreed position on costs. Failing that, they are to file written submissions within 10 working days of the date of this judgment.
Gwyn J
Solicitors:
Wilkinson Rodgers, Dunedin Morrison Kent, Wellington
34 Act, s 139A.
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