SDW v SEB
[2021] NZHC 3314
•6 December 2021
IN THE HIGH COURT OF NEW ZEALAND SDW REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2021-404-001477
[2021] NZHC 3314
UNDER the Care of Children Act 2004 AND
the Domestic Violence Act 1995
BETWEEN
SDW
Appellant
AND
SEB
Respondent
Hearing: 24 November 2021 (by VMR) Appearances:
S Jefferson QC and L Reed for Appellant/Cross-Respondent S Mitchell for Respondent/Cross-Appellant
G Askelund for Child
Judgment:
6 December 2021
JUDGMENT OF VENNING J
This judgment was delivered by me on 6 December 2021 at 4.00 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors: McVeagh Fleming, Auckland
Glaister Ennor, Auckland
Counsel: S Jefferson QC/L Reed/,Auckland
S Mitchell, Auckland G Askelund, Taupo
SDW v SEB [2021] NZHC 3314 [6 December 2021]
Introduction [1]
Procedural issues [10]
Background [12]
The protection order decision [21]
The protection order appeal [24]
Care of Children Act decision [65]
COCA appeal [74]
Result/orders [116]
Term time [118]
Term holidays [121]
Video/phone calls [122]
Changeovers [124]
Result/orders [129]
Costs [131]
Introduction
[1] SDW and SEB are the parents of C. SDW and SEB had a relatively short relationship commencing in approximately June 2015 and ending September 2017. C was born on 10 June 2016. She is currently five years, five months old. SDW lives in Epsom. SEB lives in Pukekohe.
[2] A shared care arrangement (2:2:5:5) had been in place by consent of the parties since November 2017 and confirmed by order of the Court on 1 December 2017. The arrangement worked while C was at pre-school but once she turned five the need for her to attend school raised issues with it. Both parties agree it is impractical and not in C’s best interests to require her to regularly travel between their respective addresses for school as would be required by the current arrangement. SDW considers C should spend the majority of time with him and attend school in Epsom. SEB considers that C should spend the majority of time with her and attend school in Pukekohe.
[3] The relationship between SDW and SEB is a difficult one. The parties were unable to resolve the parenting and related issues concerning C between themselves and have resorted to the Court process. SEB also sought a protection order against SDW.
[4] Over the course of a seven day hearing in the middle of this year Judge S J Maude heard the following applications:1
1 SDW v SEB [2021] NZFC 5836.
(a)SEB’s application for a protection order under the Domestic Violence Act 1995 (DVA) against SDW;
(b)SEB’s application under s 48 of the Care of Children Act 2004 (COCA) to vary the existing parenting orders;
(c)SEB’s application under s 46R of COCA to relocate C to live primarily with her in Pukekohe; and
(d)a related application under s 46R regarding the school C should attend.
[5] The applications under the DVA and COCA had previously been consolidated so were heard together.
[6] The Family Court heard evidence from SDW, his mother, SEB, her mother and father, and the Court appointed psychologist, Mr Watts.
[7] In his judgment delivered on 28 June 2021 Judge Maude declined to make a protection order. While he was satisfied that SDW had perpetrated family violence in the form of psychological violence, he concluded that SEB did not have a reasonably held subjective fear of future violence.
[8] On the applications under COCA the Judge varied the existing parenting orders largely as sought by SEB. He also allowed SEB’s application to relocate C to Pukekohe. As a consequence the Judge made orders that C attend the school in Pukekohe proposed by SEB.
[9] SDW appeals the parenting order under s 48 of COCA. He challenges the order which effectively places C in the weekly day-to-day care of SEB. He also seeks leave to appeal the decisions in relation to relocation and schooling. SEB cross- appeals the decision in relation to the Judge’s refusal to grant a protection order.
Procedural issues
[10] SDW sought and obtained a stay of the enforcement of the orders and directions regarding schooling pending the hearing of the appeals.2
[11] SDW has an appeal as of right against the parenting order made under s 48 of COCA. He requires leave to appeal the decisions as to schooling and relocation. In practice, the parties accept that the focus is on the change in the parenting arrangements which were necessitated because C has reached the age where she can attend school. Mr Mitchell confirmed that SEB does not oppose leave being granted so that all matters can be considered together.
Background
[12] The Judge summarised the background as follows. The parties commenced a relationship after meeting in June 2015. C was born on 10 June 2016. The parties first separated in September 2017. Between 10 and 20 October 2017, SDW travelled, and SEB and C lived in SDW’s Epsom home where they had all formerly lived together. On 28 October 2017, SDW accessed SEB's laptop, and, using her password, gathered information from it, including photographs and messages to S. On 29 October 2017 the parties separated for the final time. Proceedings were then commenced in the Family Court.
[13] In November 2017 SEB moved to an apartment in Nelson Street. On 1 December 2017 the Court made interim parenting orders by consent in terms of what the parties had agreed at a round table meeting. Between 26 December 2017 and 5 January 2018, SDW joined SEB, C and SEB’s parents at their family beach house. On 25 March 2018 a joint memorandum was signed by the parties agreeing to participate in family dispute resolution and counselling. SEB resiled from that on 27 March 2018. She said that she had been time pressured when agreeing to the proposal and she no longer consented.
2 SDW v SEB [2021] NZHC 1887.
[14] Between 2 and 15 April 2018 C and the parties holidayed together in Rarotonga. On 27 April 2018, SEB complained to the Police of harassment by SDW and a threat to kill her. Between 5 August 2018 and 5 October 2018, SEB, C and SDW all lived at his Epsom property. On 5 October 2018, SDW asked SEB to leave.
[15] SEB applied for a protection order in early November 2018. On 14 December 2018 SEB moved into a police home that she tenanted (and still occupies) in Pukekohe. On 16 December 2018, SEB invited SDW to a picnic in Pt Chevalier. On 23 December 2018, she spent the night at SDW’s home, returning to her property the next day. In December 2018/January 2019, SEB cancelled C’s enrolment at a day-care in Epsom on Mondays and Tuesdays (when C was in her care).
[16] On 11 January 2019, at SEB’s suggestion, the parties spent the afternoon together and later had dinner together. On 13 January 2019 SEB had dinner with SDW at his home and stayed the night.
[17] On 21 January 2019, SDW completed the purchase of the property at Epsom he had been living in. On 6 February 2019 the parties agreed to gym together, taking
C. On 15 February 2019 the parties together took C to a playground in Mt Eden.
[18] On 23 May 2019, SEB arranged for a family meeting to be called at which the protection order was discussed. On 26 June 2019, SDW lodged a complaint with the Independent Police Complaints Authority (IPCA) complaining about the misconduct by police employees, including SEB.
[19] In July 2019, SEB, C and a police officer using a ticket originally purchased in SDW’s name travelled Air New Zealand to Queenstown return. SDW engaged a private investigator, who photographed them at the airport. SDW lodged a further complaint to the IPCA.
[20] In December 2020, SEB through counsel, advised she was in a relationship with a man called A.
The protection order decision
[21] After detailing further actions by SDW following separation (referred to below) the Judge concluded that the overwhelming picture painted was of a partner and father understandably distressed by his partner’s new relationships, distressed at what he perceived as a breach of trust, and distressed at the impact that such could have on his relationship with his daughter if primary care resided with SEB.3 The Judge went on to note that:
[126] What, however, is not normal or acceptable has been how SDW, in my view, has become obsessed by his loss and its potential impact on him and his relationship with C, that distress descending into a pursuit of SEB and an obsession with maintaining oversight or control of what she does.
The Judge then concluded on this point:
[131] Neither party has behaved with impunity in these proceedings, having been drawn into an adversarial process that has consumed them; however, my task has been to determine whether there has been perpetrated family violence in the form of psychological violence by SDW.
[132]I am satisfied that there has been.
[22] After referring to the Court of Appeal decision of S v S4 and noting that the evidential burden passed to SDW to demonstrate factors weighing against the necessity for the making of the order, the Judge then went on to consider whether an order was necessary. The Judge noted:
[153] The evidence satisfies me that SEB has now established her new life free of the control of SDW in Pukekohe and that conflict (as is very apparent) has now been directed by the parties toward care arrangements for C and an inability to extract themselves from what from an outsider's perspective appears to be an addiction to the litigation process.
…
[156] I have no doubt that SEB was traumatised by SDW’s obsession with risk of loss of family and his responses to that; however, my observation of her now is that she has been able to forthrightly and uncompromisingly engage in litigation without fear, meet with SDW on occasions and pursue and continue her own life in Pukekohe.
[157] I come to the conclusion, when taking into account the need for these parents to co-parent and grow from a position of non-communication to being
3 SDW v SEB, above n 1, at [124].
4 S v S [2008] NZCA 565, [2010] 2 NZLR 581.
able to communicate with each other about C, that there is now not a necessity for the making of a protection order in favour of SEB, rather a need for control of the parties' relationships through the making of comprehensive parenting orders that will govern their only reason for inter-relationship (C) and which through the COCA provisions enables enforcement of orders where necessary.
[158] I do not hold the view that SEB currently has a reasonably held subjective fear of future violence.
[23]For those reasons he declined to make the protection order.
The protection order appeal
[24] While supporting the Judge’s finding that SDW had subjected her to family violence in terms of psychological abuse SEB appeals the Judge’s conclusion that a protection order was not necessary for her protection.
[25] In response, SDW supports the Judge’s decision that a protection order was not necessary and also seeks to support the refusal to grant the protection order on the alternative ground that the Judge was wrong to have found that he had perpetrated family violence in the form of psychological violence.
[26] Mr Jefferson QC conceded that GEH v AJH (Protection Order) establishes that a party who has been successful in opposing the making of a protection order cannot appeal that part of the decision which they are not satisfied with.5 However, he submitted GEH can be distinguished because, in the present case, SEB has sought to appeal the decision. As SEB has challenged the ultimate outcome which was in SDW’s favour, SDW should be entitled to support the decision, albeit on different grounds.
[27] Mr Jefferson cited a decision of Cooke J where (in a different context) the Judge had confirmed the ability of a respondent to a High Court appeal to support the decision on alternative grounds: van der Eik v Accident Compensation Corporation.6 Mr Mitchell did not seek to challenge SDW’s right to support the decision on alternative grounds. He conceded that it was open for SDW to challenge the findings
5 GEH v AJH (Protection Order) [2009] NZFLR 721 (HC).
6 van der Eik v Accident Compensation Corporation [2020] NZHC 2523.
of domestic violence given that SEB had appealed the decision. I proceed on that basis.
[28] The starting point is the jurisdiction to make a protection order which is provided for in s 14, Domestic Violence Act 1995:7
14 Power to make protection order
(1)The court may make a protection order if it is satisfied that—
(a)the respondent is using, or has used, domestic violence against the applicant, or a child of the applicant’s family, or both; and
(b)the making of an order is necessary for the protection of the applicant, or a child of the applicant’s family, or both.
(2)For the purposes of subsection (1)(a), a respondent who encourages another person to engage in behaviour that, if engaged in by the respondent, would amount to domestic violence against the applicant, or a child of the applicant’s family, or both, is regarded as having engaged in that behaviour personally.
(3)Without limiting section 3(4)(b) or the matters that the court may consider in determining, for the purposes of subsection (1)(b) of this section, whether the making of an order is necessary for the protection of the applicant, or a child of the applicant’s family, or both, where some or all of the behaviour in respect of which the application is made appears to be minor or trivial when viewed in isolation, or appears unlikely to recur, the court must nevertheless consider whether the behaviour forms part of a pattern of behaviour in respect of which the applicant, or a child of the applicant’s family, or both, need protection.
(4)For the avoidance of doubt, an order may be made under subsection
(1) where the need for protection arises from the risk of domestic violence of a different type from the behaviour found to have occurred for the purposes of paragraph (a) of that subsection.
(5)Without limiting the matters that the court may consider when determining whether to make a protection order, the court must have regard to—
(a)the perception of the applicant, or a child of the applicant’s family, or both, of the nature and seriousness of the behaviour in respect of which the application is made; and
(b)the effect of that behaviour on the applicant, or a child of the applicant’s family, or both.
7 The proceedings were filed on 4 November 2018. Pursuant to Schedule 1, Rule 1, Family Violence Act 2018 they are to be determined pursuant to the provisions of the DVA.
[29] The first issue is whether the Court is satisfied that SDW has used domestic violence against SEB. In this context violence means psychological abuse and can include intimidation and/or harassment. While a single act may amount to abuse, a number of acts which, when viewed in isolation, may appear minor or trivial can form a pattern of behaviour which also amounts to abuse. Psychological abuse need not involve actual or threatened physical or sexual abuse.8
[30] Mr Jefferson submitted that the Court’s analysis of whether an order was necessary must be limited to the five findings that supported the Judge’s findings of domestic violence, in this case, namely:
(a)the use of photographs of SEB (2017);
(b)going to an address on the North Shore of a male that SEB was seeing (2018);
(c)complaining to the IPCA (2019);
(d)obtaining details of SEB’s recent partner, A (2020); and
(e)sending of a text to SEB in March 2021.
[31] In relation to the use of the photographs Mr Jefferson noted that the Judge had said that, on accessing SEB’s computer SDW had downloaded images which he used as evidence in Court (photographs of SEB in a naked posing position on her bed with C, then aged 14 months on the bed also) and which he used “to forward images to S in bed with SEB”. I agree with Mr Jefferson that it is difficult to make sense of that last statement.
[32] In any event, Mr Jefferson’s argument was that SDW was using the photographs for proper purposes, namely as evidence in the course of the COCA hearing. But the short response to that is that does not address SEB’s proper concerns in relation to SDW’s use of the photographs. First, SDW obtained them by using
8 Domestic Violence Act 1995, s 3.
SEB’s password to access her computer and secondly, apart from the use in the course of the proceedings, he also sent a copy of the affidavit with them in it to her parents.
[33] Next, in relation to the Judge’s finding that there was no reasonable explanation for SDW to have visited what he believed Mr S’s address to be, Mr Jefferson again submitted that context was important. SDW thought a condition of the parenting agreement was being breached, namely that C was being exposed to a partner of SEB without his prior consultation as had been agreed by the parties in the March memorandum. He made the point that SDW was not aware that SEB had resiled from such an agreement. Again, however, the position and SDW’s actions are perhaps not so benign on further consideration. In addition to visiting what he believed to be S’s home, SDW had sent a text to S sometime later saying “your mum seems nice”. The Judge accepted that the communication about S’s mother would have left SEB worried. That finding was open to the Judge.
[34] Next, Mr Jefferson challenged the finding relating to the complaints made by SDW to the IPCA. He submitted that a complaint to the IPCA could not be domestic violence, especially where the authority had upheld the complaint. Mr Mitchell invited the Court to consider the full IPCA report finding which Mr Askelund made available to the Court during the hearing. There were effectively two complaints involving SEB and her actions. First, the attendance of Constable Griffiths at a family meeting of SEB’s family in May 2019. The first complaint was directed at the actions of Constable Griffiths rather than SEB. The authority considered that Constable Griffiths should not have attended the family meeting and in doing so had acted outside his mandate as a police officer. It upheld the complaint. However, it rejected the allegations of more serious behaviour by Constable Griffiths.
[35] The authority also rejected a related allegation that SEB had improperly accessed the Police database either directly or using Constable Griffiths or others as a proxy.
[36] The next complaint involved SEB using an Air New Zealand airline ticket to travel to Queenstown with C and a male passenger, a police officer. The other police officer used a ticket which had earlier been purchased in SDW’s name. At an earlier
occasion it had been planned that SDW, SEB and C would travel to Queenstown. A ticket was bought in SDW’s name for the trip. That trip did not eventuate. SEB made inquiries of Air New Zealand as to whether the name on the ticket could be changed but was unable to readily do so. She used that ticket issued in SDW’s name for the travel with the other police officer.
[37] Apart from referring the matter to the IPCA, SDW also complained to the Police who investigated the matter to consider whether an offence under s 228 of the Crimes Act 1961 had been committed. While the authority considered SEB’s actions were unwise it noted that having investigated the matter the Police had rejected the complaint. The authority also noted the Police had considered that SEB had failed to meet Police expectations for conduct and had taken remedial action.
[38] The Court accepts Mr Jefferson’s point that the complaint in relation to Constable Griffiths to the IPCA itself could not be perceived as domestic violence against SEB. The complaint against SEB to the Police can, however, be regarded as an attempt to place pressure on SEB, particularly in relation to her work. A further relevant feature is that, to support the complaint, SDW had instructed a private investigator to inquire into the movements of SEB and the police officer on the Queenstown trip.
[39] Next, Mr Jefferson referred to the finding regarding SDW’s actions towards SEB’s recent partner, A. Mr Jefferson submitted that the Judge’s findings that SEB was alarmed at the extent of knowledge of A by early in the new year was not justified on the evidence. He noted that SEB had, through her lawyer, advised prior to Christmas 2020 of her relationship with A and that C had been introduced to him. SDW had sent a text raising a concern about Covid-19 bubbles given that SEB worked in South Auckland and A worked in intensive care. SDW had just checked the Medical Council website to confirm A’s work details. There was no further interaction once SEB had provided assurance that C’s bubble was safe.
[40] Again, however, there was somewhat more to SDW’s actions in relation to A. As the Judge found, it was more likely than not that, having once observed SEB in the
Epsom area, SDW had focused on identifying whether she was visiting A and where that was.
[41] The next matter involved SDW sending a text to SEB in March 2021 raising the issue that a man’s knickers had been seen in C’s bed. Mr Jefferson acknowledged that that had occurred but he submitted it was, in context, not of concern.
[42] While the above incidents or certain aspects of them might be regarded as minor, taken overall it was open for the Judge to find, as he did, that they amounted to a pattern of behaviour. SEB had been left chilled at how SDW had obtained and used certain information regarding her new relationships. There was only a passing reference in SEB’s evidence to threats and no reference in the judgment to physical violence but I accept it was open to the Judge who heard and saw the witnesses to conclude that, in the circumstances, there was psychological violence amounting to violence as defined.
[43] Mr Mitchell submitted that, having found domestic violence established, a protection order should follow as a matter of course unless there is a compelling reason to the contrary.
[44] He submitted that in declining to grant the protection order the Judge had failed to apply the correct test, failed to take into account mandatory considerations, and had taken into account a number of irrelevant considerations.
[45]Mr Mitchell cited the following passage from the Court of Appeal in S v S:9
[37] While we accept that even reasonable fears do not automatically lead to the making of a protection order, where a victim’s fears are based on having been subjected to a pattern of recent serious domestic violence, as in this case, it is unlikely that a Court could rationally refuse to grant a protection order, absent very strong indications that the order is not necessary (for example, because the perpetrator is imprisoned with no possibility of contact or alternatively is hospitalised with a serious illness or some such matter). See, for example, A v B [Protection order] [2008] NZFLR 65 (HC), discussed in Appendix Two at [119] - [121].
9 S v S, above n 4.
[46] With respect to Mr Mitchell’s reliance on that paragraph, however, the facts in Surrey were stark and were quite different to the present case. While it is of course correct that any domestic violence is serious, the examples of violence in S v S were extreme. The Court acknowledged that by its reference to serious domestic violence.
[47] In relation to psychological abuse Mr Mitchell also referred to the following passage from SN v NM, another Court of Appeal decision, where the Court noted:10
[23] … The Act is designed not only to protect a person against future violence but the reasonably held fear of violence. Cultivating a fear of physical abuse constitutes psychological abuse, and thus satisfies the broad meaning of violence under the Act.
[48] Mr Mitchell referred to SEB’s evidence that she has been seeing a counsellor and psychologist for two years to deal with the impact of SDW’s behaviour on her life. He submitted the Court had failed to properly consider SEB’s perception of the nature and seriousness of SDW’s behaviour and to properly assess whether family violence was symptomatic of the parties’ relationship breakdown despite finding it was ongoing and that there was a pattern of behaviour.
[49] Mr Mitchell submitted that SEB had established a reasonably held subjective fear of future violence. SDW’s past behaviour was the best indicator of his likely future conduct. There was no evidence to suggest SDW’s family violence behaviour would stop or that the COCA orders would result in a change of behaviour. He submitted SDW showed no or little insight into his actions. He referred to passages of the evidence where, when challenged as to his actions and the impact on SEB or others, SDW’s response simply was that was not his intention.
[50] Mr Mitchell also submitted the Judge was wrong to take into account that SEB had engaged in litigation without apparent fear. He submitted her engagement in the legal process was unsurprising given the other steps she has undertaken, including counselling and police intervention. In SN the fact the complainant was able to continue to carry out her duties as a school teacher did not diminish the need for her protection. In relation to this point, Mr Jefferson accepted that the fact SEB had
10 SN v NM [2017] 3 NZLR 448 (footnote omitted).
pursued a protection order could hardly be a reason to deny her an order. That was a proper concession but the Judge’s reasoning was, in any event, rather more nuanced than that.
[51] Mr Mitchell also submitted the Judge placed too much reliance on the various attempts at reconciliation.
[52] The assessment of necessity under s 14(1)(b) requires a broad based assessment of the need for protection in the future, having regard to both the objects of the DVA, the factors set out in s 14 and the relevant factors of the particular case.
[53]In the present case, the relevant factors from K v G included:11
(a)the time that had elapsed since the violence occurred;
(b)whether the violence was one-off or not;
(c)whether the violence was symptomatic of the breakdown of the relationship;
(d)the character of SEB and the effect on her; and
(e)the perspective of SEB and the effect on her.
[54] The incidents of violence were sporadic. The Judge did not find any incidents of particular concern since the issue involving SDW’s actions in relation to A in early 2021. While the Judge did identify the five incidents referred to, so the behaviour was not one-off, a number of the incidents were relatively minor, and in the case of the referral to the IPCA, (as opposed to the complaint to the Police) are difficult to clarify as psychological violence.
[55] Judge Maude was clearly aware of the principles to apply. He referred himself to the leading Court of Appeal authority of Surrey v Surrey and the need to take into
11 K v B [2010] NZSC 112.
accounts SEB’s perception that she needed protection. He identified the evidential burden passed to SDW to demonstrate factors weighing against the necessity for the making of an order. It was however, relevant that the parties were no longer in a relationship and their only need for contact was in relation to C. In that regard, the concluding sentence of the following passage from S v S is relevant:12
[114] Although it may be a relevant factor, we do not consider the fact that an order will sever domestic relations should in itself be the governing factor in the judicial determination of necessity. A person is entitled to decide with whom they wish to associate. If an individual does not wish to associate with another person, it would normally be expected that the other person would respect his or her wishes in that regard. Where there is a protection order, however, this expectation is backed up by criminal sanctions for any breach of the order. A Court, when deciding whether a protection order is necessary, must decide whether the intervention of the State (including the imposition of criminal sanctions for breach) is justified, taking into account the purposes of the DV Act as set out in s 5 (see [89] of Appendix One), the statutory criteria set out in s 14 of the DV Act and any other relevant factors.
[56] While the incidents the Judge found proved did amount, taken collectively, to psychological violence, the relatively minor nature of them is relevant to consideration of whether SEB could be said to have a reasonable perception of future violence.
[57] In that regard examples of psychological abuse can vary extensively. In some cases it can encompass the threat of physical violence. In others it can be an overwhelming domination of the other partner, financially and/or emotionally. In the present case, in context the violence is at the lower state of seriousness. While SEB may have been impacted by it, her subjective perception is only one of a number of relevant factors to consider (albeit an important one).
[58] The principal concerns of SEB revolve around SDW’s interference with her new relationships. While that is an understandable concern, it is relevant that with time and with the issue of these proceedings behind them, SDW is less likely to be concerned in that way. As the Court said in K v G, it is not sufficient to grant an order on the basis it will give an applicant peace of mind.13 Importantly the Judge noted that SDW now accepted that both he and SEB should be able to have new partners, they engaging with C.
12 S v S, above n 4.
13 K v B, above n 11.
[59] Further, as Mr Jefferson noted, the submission by Mr Mitchell that the violence had a significant impact on SEB and a devastating effect on her were contrary to the Judge’s findings, where he noted that the parties had:14
[s]afely, and it appears without apprehension by [SEB], participated in shared activities …
[60] It is relevant that following separation SEB has, despite SDW’s actions towards her, felt able to interact with him and apparently make positive choices about spending time with him while with C and for C’s benefit. In other words, she has been able to make choices about how and when she interacted with SDW and has dealt with him on her terms.
[61] I accept the submission for SDW that overall, the Judge identified SEB’s perception of the nature and seriousness of SDW’s behaviour and contextualised it with reference to the relationship dynamics and behaviour of both since separation in making his decision a protection order was not necessary.
[62] Importantly, the Judge noted that SEB had established a new life free of control of SDW.
[63] Despite the background of conflict between these parties they are both concerned for the best for C. It is notable that Mr Askelund as counsel for C is firmly of the view that C does not require protection from SDW. Further, Mr Askelund had a number of concerns for C in the event a protection order was to be made.
[64] I conclude that it was open for the Judge, having observed the parties giving their evidence and be cross-examined on these issues, and thus in the best position to determine if an order was necessary, to take the view it was not.
Care of Children Act decision
[65] After referring to the background, and the 2:2:5:5 day parenting regime the Judge noted that, as C was of age where she could attend school both SEB and SDW
14 SDW v SEB, above n 1, at [146].
wished her to commence school but that travel at peak times between Pukekohe where SEB lives and Epsom where SDW lives made continuation of the existing orders impossible. For that reason it was not practical or in C’s welfare and best interest to maintain the existing parenting regime. That at least, is one issue the parties agree about.
[66]SDW’s proposal was that:
(a)C’s primary place of residence be with him in Epsom and C attend a local school in Epsom;
(b)from commencement of term three C be in his day-to-day care from
8.30 am Monday until 3.00 pm Friday;
(c)C be in SEB’s day-to-day care during all weekends;
(d)from term four C be in his weekday care and SEB’s weekend care, except for each first weekend of the month when C would remain in his care;
(e)non-school changeovers would occur at SEB’s parents’ home and either his mother or former nanny E being responsible for the same;
(f)there be video and telephone calls;
(g)in respect of term one and term two school holidays be shared on the basis C be in SEB’s care from collection from school on the last Friday until the second Monday;
(h)in respect of term holiday three the reverse to apply with SDW able to take C to Rarotonga for a holiday;
(i)the above regime to continue through Easter without change; and
(j)further arrangements in relation to Christmas and special events, such as Mother’s and Father’s Day.
[67]SEB’s proposal was:
(a)that C be confirmed as relocated to live with her in Pukekohe and attend school in Pukekohe;
(b)C live in her day-to-day care;
(c)C to be in her father’s care every second weekend from collection from school Friday until return to school Monday, the collecting parent being responsible for driving;
(d)C to be in her father’s care overnight each Wednesday from collection from school until return to school Thursday or collection from school Wednesday till return to SEB’s parents by 6.30 pm on the same day at SDW’s election; and
(e)shared arrangements in relation to school holidays.
[68] The Judge noted that SEB had been living in Pukekohe for approximately two and a half years. He considered the competing proposals advanced by the parties as to their parenting arrangements, and noted the report from Mr Askelund as to his interactions with C. The Judge also considered a report from a social worker and the evidence of Mr Watts, a clinical psychologist.
[69] The Judge noted that SDW proposed to continue to manage his working days while C was in his care with the assistance of his mother. SDW had purchased a unit upstairs from his property in which his mother would live, which would free up a bedroom for C in his unit. He proposed to manage his commitments as a criminal trial lawyer by getting to work when C was in his care by 4.00 am, returning home by
7.00 am and then returning to work. An integral part of SDW’s parenting proposal was the support of his mother. His mother is a New Zealander but had returned from living in Los Angeles to assist him. However, the Judge noted that, in her evidence,
SDW’s mother noted she had a number of commitments to the United States. The Judge was also concerned at aspects of SDW’s mother’s conduct and her ability and willingness to remain non-partisan. The Judge accepted SEB’s evidence that C had told her of certain statements made by SDW’s mother, which were, putting it neutrally, unsupportive of SEB and which were confirmed and consistent with a text message sent by SDW’s mother to SEB.
[70] Ultimately the Judge concluded that, as between equally important parents for C, it was only SEB’s parenting plan for C during week days that in his view offered sustainability. He concluded that the most viable parenting plan for C was that she would spend most time in the care of SEB. The Judge did not consider SDW’s proposal to be secure. He considered it unlikely to be sustainable. The Judge then addressed the relevant factors in s 5 of the COCA.
[71] The Judge made various orders confirming the relocation of C to Pukekohe and directing that she was to attend school in Pukekohe commencing term three, 2021. As noted, that aspect of the judgment has been the subject of a stay pending this appeal.
[72] The details of the orders eventually made were in accordance with SEB’s proposals:15
[268] C is to live in SDW’s day-to-day care from collection from school every second Thursday at the end of the school day until uplift of her from his home by SEB at 6.45 am on the following Monday morning.
[269] In the week that C does not come into SDW’s care on Thursday morning he may collect C from school at the end of the school day on Wednesday, having her overnight in his care until return of her to school on Thursday morning, or he may pick C up from school at the end of the school day on Wednesday and return her to SEB’s parent's home at 6.30 pm on the same day, he to elect which of the two options he will exercise by advice to SEB by email by 3.00 pm on the Tuesday preceding the Wednesday contact day.
[270]C is to be in SEB's day-to-day care at all other times during term time.
[73] The Judge also made detailed directions dealing with term holidays, Christmas holidays, video and phone calls, changeovers, public holidays and teacher only days,
15 SDW v SEB, above n 1.
birthdays, Mother’s and Father’s Days, and travel. The Judge also made further detailed conditions as to the parenting orders, counselling and therapy.
COCA appeal
[74] Mr Jefferson submitted the orders were not conducive to the welfare and best interests of C and, in particular, the Judge had failed to consider the s 5 COCA requirements before determining what was in C’s best interests.
[75] Further, the Judge had failed to take into account the views of C as required by s 6 of the COCA. The Judge mischaracterised her views and failed to take account of C’s stated preference for her father.
[76] In relation to that, Mr Jefferson submitted the Judge had also conflated C’s expression of views with alignment and made findings that led to a psychological assessment without any evidential support and contrary to the evidence of Dr Watts who had declined to go that far.
[77] Mr Jefferson also criticised the trial process and the way the oral evidence-in- chief was permitted to be given at the hearing. SEB had effectively introduced new evidence and no opportunity had been afforded to SDW to give evidence in rebuttal. As a result the decision was based on inadequate or incomplete evidence.
[78] The last point can be dealt with shortly. In the context of a seven day hearing where the transcript ran to over 740 odd pages it was always going to be difficult for Mr Jefferson to support a submission that there was inadequate or incomplete evidence. However, in any event, as Mr Jefferson effectively conceded during the course of the appeal hearing, both SDW and SEB supplemented their evidence, and if there had been an issue of particular concern as to what SEB said in her supplemental evidence in relation to matters not put to SDW, then trial counsel (not Mr Jefferson) could have sought to have SDW recalled to address or respond to those issues. Trial counsel had not done so. In the circumstances I put that matter to one side.
[79] Nor am I able to accept Mr Jefferson’s submission that the Judge failed to apply the correct principles of the COCA and, in particular, had failed to take into account
the considerations under s 5 when determining the parenting arrangement. At the outset of his consideration of the issues raised by the COCA proceedings the Judge reminded himself of the provisions of ss 4 to 6 of COCA in particular.
[80] Under s 4 the welfare and best interests of C in her particular circumstances are the first and paramount consideration in relation to the ultimate parenting order. The Judge was well aware of that and approached his task accordingly.
[81] Further, in the course of his decision the Judge considered the relevant principles relating to C’s welfare and best interests under s 5 of the Act. As Mr Mitchell submitted, it could hardly be said to be in the best interests of C for a parenting plan that was insecure or unlikely to be sustainable to be sanctioned by the Court.
[82] Mr Jefferson’s criticism of the Judge’s approach was essentially that, by dismissing SDW’s proposal as not sustainable before taking account of the s 5 considerations, the Judge had effectively misdirected himself. However, I accept the force of Mr Mitchell’s response, which was that there was little point in working through the s 5 considerations in relation to both proposals if ultimately SDW’s proposal was not secure and was unlikely to be sustainable as the Judge found. Effectively the Judge considered SEB’s proposal was the only sustainable one and then tested that by reference to the s 5 considerations.
[83] After consideration of Dr Watts’ evidence and Mr Askelund’s submissions the Judge concluded that, apart from the conflict that existed between SDW and SEB safety issues for C did not arise in either parents’ care.16 Next, the Judge was satisfied that there were a need for parenting orders that engaged both parents in C’s care as much as possible.17
[84] Relevantly the Judge identified the “dramatic and urgent need” for development of co-operation and consultation in a conflict manner between C’s parents as again informed by Dr Watts’ opinion.18
16 COCA, s 5(a).
17 COCA, s 5(b).
18 COCA, s 5(c).
[85] As to the continuity of care, the Judge was aware that the need for as near as shared parenting as could be achieved was the objective but recognised that must be subject to the constraints of the distances between C’s parents’ homes.19
[86] The Judge was also aware of the need to maintain the strength in family relationships as envisaged by s 5(e) of COCA. He noted that SEB’s proposal for C to remain in Pukekohe, with the proximity to her maternal family, including SEB’s parents, would enable the strengthening of those relationships. The Judge also noted and was aware of C’s paternal grandmother’s presence in Epsom while she was in New Zealand.
[87] Although the Judge did not expressly refer to it at this particular point in the judgment, in his orders he also provided for SDW to travel to Rarotonga with C for up to seven days in any holiday period when she was in his care. That goes at least some way to maintain SDW’s (and through him) C’s connection with the culture of the Cook Islands in satisfaction of s 5(f). The one week was the period that SDW had sought in his proposal (and with which SEB agreed).
[88] It was open to the Judge, having heard the evidence to conclude, as he did, that SDW’s proposal was unlikely to be a secure proposal. An integral part of SDW’s proposal as presented to the Court was his mother’s presence and ability to care for C when needed. SDW’s mother gave evidence in the course of which it became apparent that she had many both emotional and other commitments to Los Angeles and the United States of America. SDW’s mother’s evidence was at variance with his.
[89] While SDW was giving evidence he went so far as to say that his mother had no intention of returning to live or work in the United States and he had bought the unit above so that she could reside in it. However, that evidence was somewhat undone by his mother’s evidence when she said: “Obviously I’d want to come and go to the States as well as I see fit. I’m very involved with the church there”.
[90] The remainder of the mother’s evidence confirmed her very real connection with the United states and Los Angeles in particular. She had a fiancé in Los Angeles,
19 COCA, s 5(d).
a tenancy in Los Angeles, some possessions and animals in Los Angeles, commitments to a church in Los Angeles that she intended to return to on a regular basis, and the need overall to return to the United States at least every 12 months to renew her green card and to continue her training as a chaplain.
[91]SDW’s proposal that on the days that if necessary he would go to work at
4.00 am in the morning and then return home at 7.00 am to organise C for the day was, as the Judge observed, likely to be unsustainable.
[92] In the absence of his mother a nanny would be required to support SDW. SDW had used a nanny in the past. But his employment of the nanny had stopped about a year before the hearing. As the Judge observed, the nanny’s availability was not known, it would be unlikely if she was only a backup, and in any event could not support the 4.00 am work proposal advanced by SDW.
[93] Quite apart from the likelihood that SDW’s mother would not be available permanently there is also the further issue which concerned the Judge about relevance on SDW’s mother. Having heard and seen SDW’s mother give evidence and the other evidence overall the Judge was concerned at SDW’s mother’s effect on C’s relationship with SEB. C had been expressing views suggesting alignment. As the Judge observed, any engagement by a parent (or parent’s family) in a way critical of the other parent, in this case critical of SEB, was not only self-serving but entirely overlooked the need and primacy of C’s wellbeing to have a positive view of each parent. In contrast the Judge noted SEB’s parents to be impartial and their evidence compelling.
[94] There was sufficient evidence before the Court in this case for the Judge to conclude:20
[200] I am, however, satisfied that [SDW] and his mother have, consciously or unconsciously, become a partisan team no doubt prompted by the parties’ addiction to this litigation. I am satisfied that [C] has been influenced by her grandmother’s comments and her father’s attitude to [SEB].
20 SDW v SEB, above n 1.
[95] Mr Jefferson criticised the Judge’s observation and submitted there was no evidence of possible alignment. He noted Dr Watts was clear in his evidence there was no present alienation.
[96] Dr Watts, the clinical psychologist, provided a report to the Court and also gave evidence. The report was dated 1 April 2020 at a time when C was three years, nine months old. Dr Watts had not seen C between April 2020 and the date of the hearing in the Family Court in June 2021. He had, however had access to the affidavits and evidence from the hearing.
[97] In his report Dr Watts noted that C presented as harboring positive mental representations in being in the care of each parent. She identified that being “good and happy” was the primary feeling state when she was with either of them. He did note that she had more access to tv and digital devices in the care of the father than the mother and that that was fun. In his opinion the main clinical concern to be raised about C’s then care arrangements was the parents’ inability or unwillingness to work with each other. He considered the situation should be a concern to both parents and that they faced an ever decreasing window of opportunity to resolve conflict between them before it would likely begin to have a deleterious impact on C’s wellbeing and functioning.
[98] In Dr Watts’ opinion the issues of engrained interpersonal conflict between the parties prevented them from co-operating in order to manage the care of C and presented the primary clinical concern regarding her future psychological functioning and wellbeing.
[99] Dr Watts suggested a basic solution might be to find a daycare centre (and then in time a school) she could attend that was situated an equal distance between each parties’ home. The location and timing of transitions would be set around the involvement of an independent third care party. That would have the advantage of reducing the travel distance for the child and allow the parents to remain independent. However, the Judge correctly ruled that suggestion out as requiring C to travel too far too regularly.
[100] The overriding theme of Dr Watts’ report was that the conflict between the parents and a lack of positive regard for each other had the potential to negatively influence C against them. Those issues limited their ability to behave in a co-operative and flexible manner around C’s care and contact.
[101] During his evidence, Dr Watts noted that, as far as he could make out from the further evidence made available to him, C was not rejecting the mother’s care and therefore examination of parental alienation on face value was not relevant at that stage.
[102] Mr Jefferson criticised the Judge’s referred to C being on a pathway of alignment. However, Dr Watts did acknowledge alignment as a possibility:
I would like to be clear that I think this child is on a trajectory being damaged psychologically by the conflict between her parents and based on the evidence that has been put before me post my report. There are indications from the mother’s perspective that there is influence happening and my response to that is, in the absence of understanding the drivers or whether that influence is the case, that alignment is a possibility, not that she’s clearly on a trajectory of alignment. The damage caused to this child would probably be generalised and pervasive and alignment will, I believe is a – or likely be a component of that.
[103] Given the Judge’s finding of concern as to SDW’s mother’s influence (which was open to him) the possibility of alignment was real.
[104] Mr Jefferson next criticised the Judge for failing to take account of C’s views or otherwise discounting them rather than taking them into account as required under s 6 of COCA.
[105] In March 2021 Mr Askelund met with C. At that meeting C said: “I like spending time at Daddy’s house the most. … Both Daddy and Nana look after me. … When Daddy is at court Grandma Jen looks after me. … I like Grandma Jen”. Then she says when she is Mum’s house: “I stay at kindy”. When the lawyer asked her to pretend with the wave of his magic wand he could get her to stay wherever she wanted to she said: “I would choose to live with Daddy”. But when asked if she could think of a reason why she replied: “Can’t think of one”. Later, she said: “At Dad’s house, Dad plays with me … all the games I want to … my favourite game with Dad is …
everything we play …”. She went on to say: “I don’t play games with Mum. … I can’t think of any games we play”. Then at a May 2021 meeting C went on to say: “I think I like staying at Daddy’s house more … I really do actually because my Dad plays with me a bit more”.
[106] The Judge was aware of the views of C expressed through Mr Askelund. As Mr Mitchell submitted, the Court must take the views into account but is not bound to follow them. On my review, the experienced Family Court Judge considered C’s words, her age and possible external influences. Importantly, as Dr Watts noted before taking account of a child’s wishes at the age of five clinicians would be “very, very tentative”. That is not to discount the importance of C’s views but rather to place them in an appropriate context.
[107] For the above reasons I find the Judge was correct to conclude that the best interests of C were met by her being primarily in SEB’s care during school terms.
[108] Once the parenting order was made providing for C to be in SEB’s care during the school week, the issues of relocation and schooling naturally followed.
[109] Although the Judge had SEB’s formal application for relocation before him, the practical situation was that SEB had been living in Pukekohe for approximately two and a half years with C spending the time with her mother there and C had become immersed in the local community. That was recognised by Mr Askelund, counsel for the child, before the Judge and confirmed by him at the hearing before this Court.
[110] In his submissions Mr Askelund confirmed that he took no issue with the Judge’s finding in relation to relocation. By the time of the hearing in the Family Court in June this year the reality was that SEB had been based in and around Frankton/Pukekohe area for two and half years and C had developed a sense of community within that area. She had been attending a local kindy for some considerable period of time. She had lots of friendships with other young children her age, and in particular was engaged in a number of activities that she attended after kindy and during kindy that her mother had enrolled her in. Mr Askelund agreed with
the Judge’s assessment that it simply would have been illogical to try and turn time back and to pretend that the sense of community for C did not exist.
[111] He also accepted that the Judge had sufficient evidence to find that C’s welfare and best interests would be promoted by living the school week with her mother. While he did not necessarily, with respect, agree with the Judge’s reference to sustainability both parents were entirely suitable custodial parents and he maintained the view that, while finely balanced, the Judge’s decision was understandable in that C had a considerable sense of community with the area at the time. He said he did not take issue with the Judge’s finding it was in her overall best interests she continue with that environment throughout the school week.
[112] Mr Askelund however suggested that it was open for the Judge to have considered whether a 4:3 parenting arrangement was more appropriate with Monday to Thursday being allocated to SEB and the Friday, Saturday and Sunday, being allocated to SDW with SEB spending time with C one weekend a month at times to be set out by the Court. He submitted that he had advanced that proposal in closing submissions and discussed it with the parties during his cross-examination. Mr Askelund was concerned that on the evidence C’s relationship with SDW could be marginalised by the reduction of time spent in his care. He still supported such a proposal.
[113] During the course of the hearing Mr Mitchell prepared a schedule which set out the different approaches. Mr Askelund conceded that his proposal would see a longer period of separation between the time that C would be with SDW, however, he remained of the view that it would be preferable for there to be a 4:3 split generally if that was possible with the important rider that SEB, while having day-to-day four day care during school term should also have the ability to enjoy social functions with C one weekend in four.
[114]Mr Askelund’s proposal does not seem to have been addressed by the Judge.
[115] I consider it has merit, particularly with some minor adjustments. It can be adjusted so the principal time will remain with SEB who will also be able to spend
one weekend in four with C to ensure C has community contact. SDW will spend more regular time with C without the need to interrupt the school week with travel every second Wednesday. More importantly, the time C is required to travel from Epsom to school will be reduced. The relatively minor adjustments will address the need to provide for the welfare and best interests of C.
Result/orders
[116]The application by SEB to relocate C to Pukekohe is confirmed.
[117] Commencing term 1, 2022, C is to attend the school proposed by SEB in Pukekohe. In the meantime the existing interim parenting orders shall continue to apply until that date with the necessary adjustments in relation to the scheduled Christmas/school holiday period.
Term time
[118] C is to live in SDW’s day-to-day care from collection from school, the first, second and fourth Friday each month until the delivery by him to SEB’s home at
7.30 am on the following Monday morning.
[119] In the third week C is to be in SDW’s care from collection from school on Thursday at the end of the school day until the uplift of her from his home by SEB at
7.30 am on the Saturday morning.
[120]C is to be in SEB’s day-to-day care at all other times during term time.
Term holidays
[121] The directions and orders of the Family Court in relation to term holidays and Christmas holidays at [271] and [272] of the Family Court judgment,21 are confirmed, with the Christmas holiday period in 2021 to coincide with the formal school holiday schedule.
21 SDW v SEB, above n 1.
Video/phone calls
[122] The Family Court directions in relation to video/phone calls at [273] to [277] are to apply with the amendment to [275] to confirm that C shall have phone or video call contact with the parent that she is not in the care of at the following times:
(a)in term holidays and Christmas school holidays between 5.30 pm and
6.30 pm on the Tuesday and Friday of the week;
(b)when in SEB’s care, in term time weekdays between 5.30 pm and
6.30 pm on Tuesdays and Thursdays in the first, second and fourth weeks of the month;
(c)when in SDW’s care, in term time weekends between 5.30 pm and
6.30 pm on Saturdays; and
(d)when in SEB’s care on the third weekend between 5.30 pm and 6.30 pm on Saturday.
[123]The remaining orders at [276] and [277] are to apply.
Changeovers
[124] Changeovers are to be as fixed at [278] of the judgment,22 with the exception of changeovers provided to occur to and from school as referenced above. For the avoidance of doubt SDW is to be responsible for collecting C from school the first, second and fourth Fridays of the month and the third Thursday of the month and is to be responsible for delivery of C back to SEB’s care on the Monday following. SEB is to be responsible for collection of C from SDW’s care on the Saturday morning when she has C over the Saturday and Sunday of the third weekend.
[125] All other changeovers are to occur at the home of SEB’s parents if available, and if not available, then inside the McDonald’s Karaka restaurant.
22 SDW v SEB, above n 1.
[126] All other relevant provisions directed by the Judge at [279] to [287]23 are confirmed.
[127]I also noted the Judge’s proposals in relation to counselling and therapy.
[128] I attach a schedule based on Mr Mitchell’s original schedule which depicts the arrangement.
Result/orders
[129]The appeal against refusal to make a protection order is dismissed.
[130] The appeal against the parenting orders is allowed in part as noted above. The appeal against the relocation and schooling orders is dismissed.
Costs
[131]The parties did not address the issue of costs. I formally reserve them.
Venning J
23 SDW v SEB, above n 1.
District Court Orders
| Monday | Tuesday | Wednesday | Thursday | Friday | Saturday | Sunday | M | F |
| M | M | M | F | F | F | F | 3 | 4 |
| M | M | F | M | M | M | M | 6 | 1 |
| M | M | M | F | F | F | F | 3 | 4 |
| M | M | F | M | M | M | M | 6 | 1 |
| Total Nights Weekend Nights Longest Run | 18 4 7 | 10 4 4 |
Lawyer for Child’s proposal
| Monday | Tuesday | Wednesday | Thursday | Friday | Saturday | Sunday | M | F |
| M | M | M | M | F | F | F | 4 | 3 |
| M | M | M | M | F | F | F | 4 | 3 |
| M | M | M | M | F | F | F | 4 | 3 |
| F | F | M | M | M | M | M | 5 | 2 |
| Total Nights Weekend Nights Longest Run | 17 2 9 | 11 6 5 |
Appellant’s proposal
| Monday | Tuesday | Wednesday | Thursday | Friday | Saturday | Sunday | M | F |
| F | F | F | F | M | M | M | 3 | 4 |
| F | F | F | F | M | M | M | 3 | 4 |
| F | F | F | F | M | M | M | 3 | 4 |
| F | F | F | F | M | M | M | 3 | 4 |
| Total Nights Weekend Nights Longest Run | 12 8 3 | 16 0 4 |
Appeal result
| Monday | Tuesday | Wednesday | Thursday | Friday | Saturday | Sunday | M | F |
| M | M | M | M | F | F | F | 4 | 3 |
| M | M | M | M | F | F | F | 4 | 3 |
| M | M | M | F | F | M | M | 5 | 2 |
| M | M | M | M | F | F | F | 4 | 3 |
| Total Nights Weekend Nights Longest Run | 17 2 6 | 11 6 3 |
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