Scotland v Ireland

[2017] NZHC 1002

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

THE-FAMILY-COURT/LEGISLATION/RESTRICTION-ON-PUBLISHING- JUDGMENTS.

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV-2016-470-181 [2017] NZHC 1002

UNDER	the Care of Children Act 2004
IN THE MATTER	of an appeal under s 143(2) Care of Children Act and s 72 District Courts Act 1947
BETWEEN	[MS SCOTLAND] Appellant
AND	[MR IRELAND] Respondent

Hearing:	26 April 2017
Counsel:	G E Whiteford for Appellant S C Potter for Respondent R M Adams for children
Judgment:	16 May 2017

JUDGMENT OF BREWER J

This judgment was delivered by me on 16 May 2017 at 4:00 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors:           Davenports City Law (Auckland) for Appellant Enterprise Law (Auckland) for Respondent Adams Law (Tauranga) for children

[SCOTLAND] v [IRELAND] [2017] NZHC 1002 [16 May 2017]

Introduction

[1]      This Judgment concerns the ongoing fight between the parties, Mr Ireland and Ms Scotland, over the day-to-day care of their two infant daughters, Pretty (born

18 January 2013) and Savannah (born 16 April 2015).1

[2]      On 7 October 2016, Judge S J Coyle made final parenting orders that Pretty be in the day-to-day care of Mr Ireland and that Savannah be in the day-to-day care of  Ms Scotland.2      The  Judge  also  gave  detailed  directions  as  to  the  rights  and obligations of each of the parties in relation to contact with the daughter not in their day-to-day care, and contact between the daughters.

[3]      Another issue decided by the Judge was the name by which Savannah should be known.  Her registered name is Savannah Moana Ireland.  Ms Scotland decided to call her Moana for reasons explained later in this Judgment.  Judge Coyle ordered that Savannah’s name is to be her registered name “and that is the name that she is to be known and referred to at all times with [Savannah] as her first name”.3

[4]      Ms Scotland now appeals Judge Coyle’s decisions.   She wants day-to-day care of both daughters and she wants Savannah to be called Moana.  Indeed, she has continued to use the name Moana despite Judge Coyle’s order.

[5]      Ms Scotland  contends  also  that  Judge  Coyle’s  directions  about  contact

between the parties and the daughters not in their day-to-day care are unworkable.

Background

[6]      The background is set out in detail in Judge Coyle’s decision.  I am not going

to repeat it.  Instead, I set out the factual matters I consider to be the most significant:

(a)       From about the middle of 2015, Ms Scotland has lived in Auckland with Savannah and Mr Ireland has lived in Tauranga with Pretty.

1      I have adopted false names for the parties and their daughters to conform with the current practice that this is necessary to preserve privacy rights in appeals from decisions of the Family Court.

2      [Ireland] v [Scotland] [2016] NZFC 8440 at [38](1).

3      At [38](6).

(b)On 14 January 2016, Judge Twaddle made a final protection order against Mr Ireland.4

(c)      The daughters are not considered to be at risk while in the care of either Mr Ireland or Ms Scotland.   They love their daughters and, subject to the next point, take good care of them.

(d)Mr Ireland and Ms Scotland so dislike each other that they have been unable or unwilling to co-ordinate their parenting of their daughters since their separation.

The law

[7]      This is a general appeal.   I must consider the evidence before Judge Coyle against the submissions of counsel and decide whether I agree with the decisions made by the Judge.  If I disagree with a decision, then I must substitute the decision I find to be the correct one.  However, I will bear in mind the advantage that Judge Coyle had in hearing from the witnesses at trial.  It is only if I find, on the balance of probabilities, that he was wrong in a decision that I will overturn it.

[8]      Ms Scotland has filed two affidavits which she wants me to take into account. Normally, an appeal court will not look at evidence not before the Judge at first instance.   An exception can be made if the evidence is cogent, fresh or if it is otherwise in the interests of justice to admit it.

[9]      I have decided to have regard to the affidavits to the extent that they go to the workability of the day-to-day care orders made by Judge Coyle.  That is to say, how the parties have given effect to them.5

Issues

[10]     I must decide these broad issues:

4      [Scotland] v [Ireland] [2016] NZFC 155.

5      There were two other preliminary applications which I considered to be technical and which I allowed at the commencement of the appeal hearing. They were an application for leave to bring the  appeal out  of  time  and  an  application for  leave  to  appeal Judge  Coyle’s decision on [Savannah’s] name.

(a)      Do Judge Coyle’s day-to-day care orders satisfy in the circumstances of this case the paramount criteria of the welfare and best interests of the daughters?6

(b)      Should Savannah be called Moana?7

The welfare and best interests of the daughters

[11]     Ms Scotland’s case on appeal is that Judge Coyle made incorrect findings of fact about her behaviour and failed to give sufficient regard to the findings of Judge Twaddle about Mr Ireland’s abuse of her.  She submits further that Judge Coyle gave no consideration to Pretty’s relationship with Ms Scotland and how this may be strengthened; instead, he focused on Mr Ireland’s relationship with Savannah.  The outcome was parenting orders that are submitted to be impractical and not in the

daughters’ welfare and best interests.8

[12]     Judge  Coyle found that  he could  characterise Ms Scotland’s  history as  a parent as showing a propensity for taking unilateral action.9   His Honour referred to unilateral actions by her as including moving from Auckland to Tauranga to be with Mr Ireland and bringing with her two children by a previous relationship.   That resulted in Family Court action that saw the two children concerned returned to Auckland.     His  Honour  also  accepted  evidence  that  Ms Scotland  asserted  to Mr Ireland that she had received legal advice that she could simply take Pretty to Auckland to live with her without the consent of Mr Ireland, and that she intended to

do so.  Finally, the Judge had regard to Ms Scotland moving back to Auckland with the still unborn Savannah.

[13]     Judge Coyle further took the view that Ms Scotland had no wish to share parenting with Mr Ireland and that, if Ms Scotland had day-to-day care of both

daughters, she would act to frustrate reasonable contact with them by Mr Ireland.

6      Care of Children Act 2004, s 4(1).

7      Care of Children Act 2004, s 46R(1).

8      There was a submission also that Judge Coyle incorrectly applied the dicta of the Court of Appeal in Surrey v Surrey [2008] NZCA 565, [2010] 2 NZLR 581 to the effect that the best predictor of the future is past known facts. Ms Whiteford did not pursue this point after I suggested that it is simply an expression of common sense.

9 At [17].

[14]     It is submitted on behalf of Ms Scotland that this an unfair characterisation, as:

[24]     Her moving to Auckland with the still unborn [Savannah] was her first unilateral move in the parties’ relationship.  The difficulties in the  parties’  relationship  and  the  appellant’s  burden  of  travel warranted  a  more  sympathetic  and  contextual  response  by  the learned [J]udge.

[15]     In support of the submission that Judge Coyle failed to have sufficient regard to the findings of Judge Twaddle, Ms Whiteford for Ms Scotland submits that while Judge  Twaddle  correctly  captured  the  abusive  power  dynamic  in  Mr Ireland’s behaviour and its impact on Ms Scotland, Judge Coyle did not recognise and give proper effect to that dynamic.

[16]     As to the submission that Judge Coyle gave no consideration to Pretty’s relationship with Ms Scotland, it is submitted on behalf of Ms Scotland that the Judge  put  emphasis  on  care  arrangements  for  Savannah  which  would  enable Mr Ireland to build a relationship with her, but did not examine how Ms Scotland’s relationship with Pretty might be strengthened.

[17]     As is so often the case with appeals of this sort, there is detailed reference to particular aspects of evidence and detailed submissions made for alternative interpretations or outcomes.  That can be important where there are clear errors.  But where, as here, the Judge has drawn conclusions open to him on the evidence, then there is little or no basis for an appellate court to be satisfied that the Judge’s findings should be overturned.

[18]    In my view, Judge Coyle, on the evidence, was entitled to reach those conclusions.

[19]     There was sufficient evidence that Ms Scotland had historically engaged in unilateral activity in relation to guardianship issues.  Ms Scotland submits that the decision to move to Tauranga was not unilateral, due to the alleged influence of Mr Ireland.  I disagree.  This was a unilateral decision in her position as a guardian of her two children by a previous relationship.  She did not inform those children’s father of her decision.

[20]     I also do not accept that Judge Coyle failed to appreciate the abusive dynamic identified by Judge Twaddle.  Indeed, Judge Coyle spends a considerable part of his judgment discussing and applying Judge Twaddle’s analysis.   This is not a case where a Judge has wrongly stigmatised one party while wrongly whitewashing the other.   Judge Coyle was concerned with the welfare and best interests of the daughters.  He was faced with warring parents, one of whom he concluded would try to frustrate the other’s contact with their daughters.  The other had a protection order against him because of low level physical violence and a moderate level of psychological abuse.   The Judge found that the welfare and best interests of the children required them to have the best opportunity possible in the circumstances to build and consolidate their relationships with both parents.  At the same time, they had to have the best opportunity in the circumstances to consolidate and build their relationships  with  each  other  as  siblings  and  also  with  their  half-siblings  in Auckland.

[21]     I   understand   Ms Scotland’s   view   that   Judge   Coyle   overlooked   her relationship with Pretty.  However, given the respective ages of the two children, he rightfully felt the need to emphasise the importance of Savannah developing her then “very  intermittent  and  brief  relationship”  with  her  father,  Mr Ireland.10    The arrangements allowed for Savannah to do that.  They did not prevent, nor were they intended to prevent, Ms Scotland from further developing her already established

relationship with Pretty.

[22]     I was helped by the objective and pragmatic submissions of Ms Adams as the lawyer for the daughters.  Her position can be summarised as follows:

21.My  submission  at  the  hearing  in  2016  and  which  remains  my position as Counsel for the children is that either the arrangement proposed by the father or the arrangement proposed by the mother would, in terms of simply the breakdown of days in each household, adequately meet the children’s needs on a physical and emotional and psychological basis. The girls need and deserve substantial time with both parents. The primary concerns which I identified then, and now, are the practical implications having regard to the geographical distance between the parties and the poor communication and complete and reciprocal loss of trust and confidence between them.

[23]     I note  that  Ms Adams’s  submissions  on  the issues  raised  by counsel  for Ms Scotland are consistent with the findings I make herein.   Ms Adams was quite clear that the central issue for Judge Coyle in relation to determining what day-to- day care arrangements  should  be put  in  place  to  promote the welfare and  best interests of the children is the ongoing hostility between the parties:

36.Counsel  for  the Appellant  has  focused  extensively  on  what  she describes as His Honour’s “harsh criticism” and “determination to excoriate”  [Ms Scotland].   With  respect,  it  is  submitted  that  the Family Court Judge’s essential consideration was whether there were safety issues for either of the girls in [Mr Ireland’s] care and, on the basis of his finding that there was no such safety risk, which of the proposed care arrangements would best promote and support the children’s relationships with  both of their parents and  with  each other and their half-siblings in the future.

37.The parties both repeatedly confirmed under cross-examination that the communication between the two of them was poor and that there is little trust or respect either way … The assessment of Judge Coyle was that it was essentially the conflict over parenting issues which was the primary cause of the conflict, and that as [Ms Scotland] herself   accepted   under   cross-examination   …   this   destructive dynamic would be likely to be significantly reduced if Parenting Orders were made which clearly defined and directed the care arrangements.

38.It will not remedy the hostility between the parties to reduce the number of weekly handovers and therefore the direct contact. That is too simplistic. It is the disagreement and continued conflict over parenting arrangements which leads to the acrimony which Judge Coyle himself identified as the real risk to the safety of the children

…

[24]     I turn now to the final submission, namely whether the orders made by Judge

Coyle are impractical.

[25]     The relevant orders made by Judge Coyle are:11

(2)       The children are to be in the care of the parent with whom they are not living on an alternating fortnightly basis so that the children are both together with their father for one weekend and on the alternate weekend both together with their mother. The weekends shall run from noon  on  Friday until  noon  on  Monday,  until such time  as [Pretty] starts school, and thereafter shall be from 5.00pm Friday until 5.00pm Sunday. The changeover shall occur inside McDonalds, Mercer.

…

(3)      Christmas holidays

(a)      In even numbered years both children are to be in the care of

[Mr Ireland] from 12 noon on Christmas Eve through until

12 noon on 30 December[.]

(b)       In odd numbered years both children are to be in the care of their mother for the same period. The balance of Christmas holidays for this Christmas are to be as per the above arrangements i.e. the children together every weekend, on an alternating basis in each parent’s household.

(c)       For subsequent Christmas holidays the above arrangements in relation to the period around Christmas Day are to remain, with the balance of the holidays shared between the parties as agreed.

(d)       For each of the school term holidays commencing at the end of Term 1 2017, both children are to be in the care of their father from 12 noon on the last day school would finish (and once  [Pretty]  starts  school  from  5.00pm)  through  until middle weekend on Sunday at 12 noon, and then in the care of  their  mother  through  until  the  following  Sunday  at

12 noon.

[26]     In her affidavit of 1 December 2016, Ms Scotland describes the difficulties the parties had in implementing Judge Coyle’s orders in the period October 2016 to December 2016.  The difficulties, in Ms Scotland’s mind, are the fault of Mr Ireland. However,  that  period  has  passed  and,  according  to  Ms Adams,  the  order  as  to alternating fortnightly exchanges is being adhered to by the parties.

[27]     In her affidavit of 26 January 2017, Ms Scotland describes the unfortunate situation which occurred at Christmas 2016.  Matters became worse in the New Year:

4.When I collected [Savannah] on 2 January, she was in a terrible state. For the first few days she was clinging and crying. It took me about  5  days  to  settle  her  down.  I  waited  these  5  days  before emailing the respondent on 7 January that I would not be handing [Savannah] over on Monday 9 January 2017 but would return her on Friday 13 January 2017  …  I strongly believe  it was  not  in  her welfare and best interests to be returned to the care of the respondent for extended periods. When I met the respondent at handover on

9 January and gave him [Pretty], he did not say “Hello” at all and just said, “Where is [Savannah], Police coming to get her now”. He

said this [as] he was holding [Pretty] who was looking sad and

confused.

5.At about 1.30pm on Monday 9 January 2017, 3 Police officers came to my mother’s house … While I was standing on Mum’s doorstep holding [Savannah], the 3 officers were threatening and bullying me. One officer said, “As you are outside the property I’m within my right to take the child from you now.” I have since made a formal complaint  with  the  Police.  I  put  up  with  about  45  minutes  of hounding from them.

6.The Police told me that on Monday 9 January, the respondent and [Pretty] were both waiting in the car round the corner. This means that on Monday 9 January, I took [Pretty] to Mercer, an hour’s drive, and on the same day the respondent drove [Pretty] back to my mother’s house with the Police and waited in the car and then drove her all the way back to Papamoa, approximately 6 hours driving. I was very concerned at the psychological effect on [Pretty] and what was being said to her when I didn’t hand over [Savannah].

7.I rang my lawyer and explained the reasons why. The Police officer also spoke to my lawyer. Because of my concerns for [Savannah’s] welfare, I refused to give her to the Police. I found the Police to be arrogant and intimidating. I was stressed by this, burst into tears and finally they left me alone.

[28]     In my view, these affidavits reinforce the major concern identified by Judge Coyle.   The major threat to the welfare and best interests of the daughters is the continuing conflict between their parents.  One parent lives in Auckland.  The other lives in Tauranga.  The daughters are young, but one has been in the day-to-day care of the mother and the other in the day-to-day care of the father since 2015.  Judge Coyle’s options were limited.   Neither the Family Court nor the High Court can change the attitudes of the parties.  I cannot say that Judge Coyle was wrong to make the orders he did.   I accept, as did Judge Coyle, that the burden of travel on the parties is onerous.   But that cannot be helped.   Perhaps one aspect of it which is positive is that the parties will have to co-operate to make the regime work.  They each have an interest in making it work because that is how each will maintain and build their relationship with both daughters.

Should Savannah be called Moana?

[29]     Ms Whiteford  for  Ms Scotland  submits  that  Judge  Coyle  failed  to  take account of Ms Scotland’s evidence that she felt pressured to agree to the name “Savannah”.   Her agreement to the name was reluctant and extracted within the context of the dynamic of abuse identified by Judge Twaddle:

29.In her oral evidence, the appellant stated that [Savannah] had been called “[Moana]” for over a year now. In this period, [Savannah] had had considerably more time with her mother and half siblings. The appellant also makes the valid point that many people who are given two names are referred to by their middle name. Counsel submits it is not uncommon for children to be given nicknames by some relatives and/or friends.

30.      The principles in section 5(d) and 5(f) [of the Care of Children Act

2004]   support   [Savannah]   continuing   to   be   called   [Moana]. However, counsel submits that, based on his unfounded view of the

appellant as “having a history of unilateral actions”, his Honour

seemed determined to reject the appellant’s choice of name.

[30]     Judge Coyle said:

[37]      In relation to [Savannah’s] name, I have a clear view that she should retain the name that was agreed to by both parents, and not the name that [Ms Scotland] has unilaterally changed it to. Thus [Savannah] is to be known by her registered name and not by [Moana]. I agree with Ms Adams’ submissions that it is intolerable for [Savannah] as she grows and develops to be in two households in which she has two different names as that becomes very confusing for her, and for [Pretty] …

[31]     Ms Adams, as lawyer for the daughters, submitted:

28.The submission which I made at the hearing in the Family Court, and by which I still stand, is that it is not acceptable for this child to be known by different names in the two respective parental households. That is potentially confusing and destabilising and in itself divisive. It is equally confusing for [Pretty] to be required to refer to her little sister by different names in different contexts, and will reinforce to the children in a destructive way the lack of co- operation or cohesion between their two parents.

29.      The issue is, with respect, not so much by which name [Savannah]

should be known, but that she should be known by one name.

[32]     With respect, I accept Ms Adams’s submissions.  However, I think that there is little that the Court can do in a practical sense.  Ms Scotland has, as Ms Whiteford confirmed, continued to call Savannah by the name Moana.   I have no reason to believe that my upholding Judge Coyle’s decision will change her practice. Nevertheless, the official position will be that Savannah’s name as registered at her birth will remain her name.

Result

[33]     The appeal is dismissed.  If any matter of costs arises, the respondent is to file a memorandum by 30 May 2017 and the appellant may respond by 13 June 2017.

Brewer J