Shaw v Brown

[2014] NZHC 2843

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 COURT/LEGISLATION/RESTRICTIONS-ON-PUBLICATIONS.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-001907 [2014] NZHC 2843

BETWEEN

SHAW

Appellant

AND

BROWN Respondent

Hearing:	21 October 2014
Appearances:	A J Cooke and T L M Norton for Appellant A Dullabh and S D Bennett for Respondent A K Finnie for Children
Judgment:	14 November 2014

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 14 November 2014 at 4.00 pm

pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date……………………….

SHAW v BROWN [2014] NZHC 2843 [14 November 2014]

Introduction

[1]      The appellant, Mr S and the respondent, Ms B, separated in 2010.  Initially Ms B had the day-to-day care of their son L (now aged 11) and daughter N (now aged 7), with Mr S having contact at weekends.   Following a Family Group Conference in October 2012 a trial shared care arrangement was implemented, with the parties having day-to-day care on a week about basis.  Following a hearing in the

Family Court that arrangement was confirmed.1

[2]      Mr S appeals the Family Court decision on the ground that it was against the weight of evidence and that Judge Maude made errors in his assessment of the evidence.  The specific grounds of appeal can be summarised as error by the Judge in:

(a)       Finding  that  the  accommodation  provided  by  Ms   B  was   not inappropriate;

(b)      Finding  that  Ms  B’s  arrangements  for  child  care  when  she  was

working night shifts were not to be criticised;

(c)       Finding that Mr S was unwilling to communicate with Ms B regarding the children;

(d)      Failing to separate the issue of communication between the parties

from their response to the specific issue of L’s bedwetting;

(e)       Finding that Mr S had failed to ensure that professional help was

sought and carried through in relation to L’s bedwetting;

(f)       Wrongly  attributing  Ms  B’s  failure  to  appropriately  address  L’s

bedwetting to the issue of communication between the parties;

(g)      Failing  to  give  sufficient  weight  to  the  inadequacy  of  Ms  B’s

explanation for not completing the necessary parenting programmes;

1      B v S [2014] NZFC 4204.

(h)      Finding that the children had not been coached by Ms B;

(i)Relying on the evidence of a social worker who was not familiar with the file and had not prepared the s 132 report;

(j)Failing to take into account the evidence of the financial and other resources available to Mr S in assessing the best interests and welfare of the children.

[3]      The appeal is a general appeal brought under s 143 of the Care of Children Act 2004 (CoCA).   The approach is that described in Austin, Nichols & Co Inc v Stichting Lodestar.2   It is for Mr S to persuade me that the Family Court’s decision was wrong and, if that is the case, he will be entitled to a fresh assessment in this Court.

Relevant principles under Care of Children Act

[4]      Determination of the children’s care arrangements fell to be decided on the principles set out in ss 4, 5 and 6 of CoCA, to which the Judge expressly referred.

[5]      Under s 4(1) the welfare and best interests of the children are the first and paramount consideration in proceedings involving the issue of day-to-day care.  Of relevance in this case is the direction under s 4(3) that a parent’s conduct may be considered only to the extent (if any) that it is relevant to the child’s welfare and best interests and s 4(4) that there is no presumption that a particular person will, because of that person’s sex, best serve the welfare and best interests of the child in terms of day-to-day care.

[6]      The principles relevant to determining a child’s welfare and best interests are

set out in s 5, which provides:

The principles relating to a child's welfare and best interests are that —

(a)       a child's safety must be protected and, in particular, a child must be protected from all forms of violence (as defined in section 3(2) to (5)

2      Austin, Nichols & Co Inc v Stichting Lodestar [2008] NZLR 141, [2007] NZSC 103.

of the Domestic Violence Act 1995) from all persons, including members of the child's family, family group, whanau, hapu, and iwi:

(b)       a child's care, development, and upbringing should be primarily the responsibility of his or her parents and guardians:

(c)       a child's care, development, and upbringing should be facilitated by ongoing consultation and co-operation between his or her parents, guardians, and any other person having a role in his or her care under a parenting or guardianship order:

(d)       a child should have continuity in his or her care, development, and upbringing:

(e)       a child should continue to have a relationship with both of his or her parents, and that a child's relationship with his or her family group, whanau, hapu, or iwi should be preserved and strengthened:

(f)       a child's identity (including, without limitation, his or her culture, language, and religious denomination and practice) should be preserved and strengthened.

[7]      Finally, s 6 requires the Court to allow a child the opportunity to have his or her views put before the Court and taken into account.  This was done; the children were represented, their views conveyed and taken into account by the Judge.

The Family Court decision

[8]      In the Family Court Ms B applied and Mr S cross-applied for parenting orders under which each would have day-to-day care of the children and the other fortnightly weekly contact.  Although there had been past concerns about physical disciplining of the children by both parties, that issue was no longer live.  Still live, however, was the problem of L’s bedwetting.

[9]      The issues identified by the parties as relevant, and recorded by the Judge at the  start  of  his  judgment,  were  Ms  B’s  accommodation  arrangements  since separation, whether Mr S’s new partner was in fact the primary caregiver when the children were in Mr S’s care, Ms B’s childcare arrangements when she was at work, communication between the parties, the parties’ response to L’s behavioural difficulties and whether the children had been coached in the views they expressed to their lawyer.  Save for the Judge’s finding that Ms K was not the primary caregiver when the children were in Mr S’s care, Mr S challenges the Judge’s conclusions on all of the remaining issues.

[10]     Before considering each of the issues separately it is convenient to record the Judge’s overall conclusions in confirming the shared care arrangement.  The Judge considered that because the children’s predominant experience had been of shared care it was in their best interests to have both parents continue to be involved in their care.  This was notwithstanding his view that Ms B was less competent than Mr S in caring for the children.

[11]     The Judge identified the lack of communication and cooperation between Ms B and Mr S as the major issue affecting the family but considered that this problem could be overcome through further counselling.  In reaching his conclusion on the issue of communication and cooperation under s 5(c) the Judge said:3

What was absolutely clear and I have made reference to this in my judgment already was that there was an abject absence of any reasonable communication between these parents.

Mr [S] would not communicate. Ms [B] did not communicate.

Neither had met or talked about their children since the October 2012 Family

Group Conference.

This does not auger well for, in particular, [L], who requires of his parents consultation, cooperation, engagement of helpers when needed and consistency.

[12]     Notwithstanding those problems the Judge considered that:4

The Court should as much as the child’s welfare and best interests allow, foster the best possible relationship for a child with each parent and foster the preservation and strengthening of the relationship with family …

A minimisation of time with either parent reduces the relationship that the children have with, in mother’s case – maternal grandparents.  And father’s case – paternal grandmother, step-grandfather and uncles.

[13]     The Judge finally concluded that:5

An overview of the evidence reveals (confirmed by Mr [S]) that were it not

for Mr [S’s] concerns as to Ms [B’s] parenting and the complete breakdown

3      At [108] – [112].

4 At [122].

5      At [126] – [136].

of communication between the parties, week about care would be the best outcome for these children.

I have no psychological evidence or medical evidence as to the nature of

[L’s] difficulties.

I observe that there has been no notification to the Child Youth & Family

Service since the October 2012 Family Group Conference.

The children’s school principal (consulted by the social worked in a lead-up to hearing) has given no indication of problems still manifesting themselves at school for [L] [N] (and it was the school that referred the family to Whirinaki).

Ideally these children should continue their current shared care arrangement unless that is not possible.

I simply do not accept that these parents should be excused from cooperation and communication.

These parents have become trapped in a cycle of non-communication.

There is no evidence to suggest that living on the same property as mother and maternal grandparents is anything other than positive for these children.

Mr [S] in my view provides a good parenting environment.  I do not accept the criticism levelled against him that, in reality, Ms [K] provides the care for the children.

I do not believe that the views expressed by the children that there should be now a marginalisation of their relationship with their mother, which would be contrary to their wellbeing.

I  have  come  to  the  above  conclusion  mindful  of  the  lack  of  evidence

presented with relation to [L’s] incontinence …

In my view, [L] and [N] should remain in the week about care of their parents with, however, their parents taking immediate steps to parent better.

There must be:

(a)      A willingness of each parent to do better;

(b)      Support   of   both   parents  so   that   change   to  ingrained behaviour occurs.

[14]     The Judge made final parenting orders requiring the children to live in the day-to-day care of their father and mother on a rotating week about basis.   He imposed  three  conditions;  the  Family  Court  was  to  immediately  facilitate  and arrange for the parents to attend three joint counselling sessions, whanau agreement with the Ministry of Social Development was to be executed for the provision of

parental therapy and education, and parties, following the counselling and therapy,

were to meet not less than monthly to discuss the children’s needs.

[15]     On the appeal I was not advised whether any or all of these conditions had been met.

Ground 1: Appropriateness of accommodation

[16]     Mr S occupies a four-bedroom house with his current partner, Ms K.  Ms K’s son from her previous marriage lives there on a week about basis.  The children each have their own bedrooms.

[17]     In the Family Court Mr S was critical of the accommodation provided by Ms B.  There were two issues.  First, it was said that Ms B’s accommodation since separating from Mr S had generally been poor and should be regarded as a predictor of her future decision-making ability.   Since separation Ms B has lived in five different homes, some of them undoubtedly inappropriate for young children.  The cross-examination did seem to disclose a remarkable lack of insight on Ms B’s part as to the need for stable and appropriate accommodation for her children during some of that period.   Ms B has, however, occupied a granny flat on her parent’s property for some time and there are no reported plans to move.  I am not convinced that the decisions made in the immediate aftermath of separation should necessarily be given great weight in the context of a forward-looking assessment of day-to-day care arrangements.

[18]     Secondly, Mr Cooke submitted that the accommodation at Ms B’s parent’s property, which the Judge found was not inappropriate was, in fact, not suitable for the children.   The evidence was that the granny flat had one bedroom, which the children shared.  Ms B slept in the living room.  There was evidence that Ms B, L and N all shared a bed sometimes and a suggestion that the three of them sometimes shared a bed.  It transpired from the evidence, however, that the latter was limited to Friday and/or Saturday “movie nights”.

[19]     Of greater concern was that L, then aged 10, was sharing a room with his seven-year-old sister.   The Judge’s found that the current accommodation was not inappropriate:6

I do not have the benefit of expert evidence, however I do observe that while not reaching the level of concern to suggest care and protection issues, the children’s quality of accommodation with their mother has, at times, been compromised and that with L at 10 years of age Ms [B] needs rapidly to consider the appropriateness of she, L and N sharing a bed.

I   do   not   conclude,   however,   that   Ms   B’s   current   two-bedroom accommodation is in any way inappropriate.  Indeed, situated as it is as a flat on the same property as the children’s paternal grandparents, it offers significant advantages.

[20]     Mr Cooke submitted that, in reaching these conclusions, the Judge did not turn  his  mind  at  all  to  the  evidence  that  Mr  S  had  given  about  the  living arrangements at his house and failed to see the issue as symptomatic of Ms B’s lack of insight and ability to make consistent appropriate child-focused decisions. Although it is true that the Judge did not refer in detail to Mr S’s home I do not consider that is a matter for criticism.   Mr S’s property was referred to; it clearly offered an appropriate level of accommodation and, no doubt, can be regarded as superior to that offered by Ms B.  But that accommodation was not in issue and did not warrant greater consideration.  Nor do I consider it fair to view the deficiencies in Ms B’s house as “symptomatic of Ms B’s lack of insight and ability to make consistent appropriate child-focused decisions”.  Ms B has limited finances and the size of the granny flat was rightly viewed by the Judge as off-set by the advantages for the children of being on the same property as their grandparents.

[21]     In any event, this issue has been overtaken by updating evidence provided (at my request) following the hearing.   That request came about as follows: in the Family Court Ms B gave evidence about plans her parents had for extending the granny flat to provide a separate bedroom for L.  However, when Mr Finnie met with L before the appeal L made a comment suggesting that he was now sleeping in his grandparents house.  Neither counsel addressed this point and, having considered the issues relating the Judge’s finding on the accommodation issue it appeared to me

necessary to know whether there had been changes to those arrangements since the

6      At [42] – [43].

Family Court hearing.  In requesting updating evidence I also permitted counsel to file further submissions.

[22]     Ms B provided an affidavit explaining that L now occupies a bedroom in her parent’s house while she and N share the bedroom in the granny flat.  In submissions Mr  Cooke,  for  Mr  S,  pointed  out  certain  inconsistencies  in  Ms  B’s  evidence regarding the timing of the accommodation arrangements.   However, the main concern, of L not having his own room, appears not to exist any longer.

Ground 2: Ms B’s work hours

[23]     Ms B has worked in a local club for some years.   Historically she has worked for five or six nights a week, including night shifts that extended to 1 am.  However, the evidence was that she now works only two shifts a week, being a total of 10 hours which might be either a day shift between 9 am and 2 pm or night shift between 4-5 pm and 10 pm, with an occasional late shift.  The arrangements when she is working a night shift vary depending on the finishing time.  Sometimes the children go to their grandparent’s house on the property and return to the granny flat when Ms B gets home.  Sometimes the children’s grandparents come down to the granny flat and babysit.  If Ms B is working a late shift the children sleep overnight in their grandparent’s house.

[24]     The Judge found nothing to be criticised about those arrangements and I see no error in that conclusion.   While the children are with Ms B they live in an extended family situation.  On one view of things the children’s evening routine is more predictable at Mr S’s house.  But being cared for by grandparents a few nights a week while mother is working is a not uncommon arrangement in New Zealand society and not, in itself, to be regarded as inappropriate.

Ground 3: Parental communication

[25]     The Judge criticised both parties for their inability to maintain a rational and productive line of communication.  There was substantial evidence around the issue of  communication,  with  particular  emphasis  on  the  breakdown  of  a  specific agreement for weekly discussions about the children, Ms B’s failure to advise Mr S

when N was  hospitalised and the failure of the parties to jointly deal  with  L’s

behaviour problems. The Judge concluded that:7

In my view Ms [B] failed to communicate with Mr [S] because she sees herself still as the primary caregiver for the children and likely also is threatened by Mr [S’s] emergence as a competent parent, supported by Ms [K].  Mr [S] fails to communicate with Ms [B] for his part to avoid conflict.

The outcome is a loss for the children.

[26]     In his conclusion, already referred to, the Judge also made the finding, now challenged, that “Mr [S] would not communicate.”8    Mr Cooke submitted that this finding  was  unfair  and  not  supported  by  the  evidence,  which  centred  on  two particular aspects, being the agreed weekly contact between the parties and N’s hospitalisation.

[27]     At the Family Group Conference in October 2012 it was agreed that the parties would have telephone contact on Sunday evenings when the children were asleep, to avoid them being exposed to adult issues.   The parent with care of the children on the particular day was to initiate the telephone call.  The unchallenged evidence was that Ms B did not keep to that agreement.  Mr S said in evidence that Ms B only made one of the Sunday telephone calls, that he made fortnightly calls for

a further four weeks but then “it got to the point where she wasn’t even answering.”9

Ms B did not have any recollection of the phone calls made pursuant to that agreement.

[28]     N was hospitalised for three days from 3-6 September 2013.  Ms B did not inform Mr S.  Her explanation was that she did not have credit on her phone and it was only when her lawyer rang her on 6 September 2013 (after N had been released) that she was able to have a message conveyed through the lawyer.

[29]     The Judge held that:10

Ms [B] did not display any real understanding of her duty to keep Mr [S]

informed.

7 At [72].

8      At [109] – [111].

9      NOE 128.

10 [68] – [70].

The impression that I gained was of a mother somewhat disorganised on a day-to-day  basis  who  has  always,  until  separation,  been  the  children’s primary caregiver and who now sees little reason to engage Mr [S] notwithstanding however that care has for over two years been on a week about basis, with L demonstrating significant behavioural difficulties.

Sadly  that  unwillingness  to  communicate  is  replicated  by  Mr  [S]  who equally initiates no communication with Ms [B].

An example of this is that following receipt of advice about his daughter having been in hospital (which, albeit was late and through the lawyers) took no steps on her release from hospital to contact Ms [B] or to arrange to see N before she returned to his care.  No doubt to [N’s] detriment.  He said he was too emotional to, but that decision put his own needs ahead of his daughter’s.

[30]     It is apparent from his questions and the judgment that the Judge was under the erroneous impression that the hospitalisation dates were 6-9 September 2013. That misunderstanding could have led the Judge to think that Mr S chose not to visit N in hospital but the finding suggests that, notwithstanding the error, the Judge appreciated that Mr S was not told of N being in hospital until after she had been released.

[31]     Nevertheless I consider that the Judge’s assessment of Ms B was unduly lenient and of Mr S unduly harsh.   The evidence showed something more than disorganisation as the reason for Ms B not advising Mr S that N was in hospital.  It suggested that the decision was deliberate and that there were earlier opportunities for her to have got a message to him.  It also suggests that Ms B offered a misleading account in her affidavit, one that portrayed Mr S as having the opportunity to visit N in hospital and not doing so out of spite towards Ms B.   Neither was the case because, as Ms B knew, N had already been released from hospital by the time she arranged for a message to be got to Mr S.

[32]     In her affidavit Ms B said:

I also asked my lawyer to advise Mr [S’s] solicitors that I did not have any credit on my phone either.  I hoped that Mr [S] would then get in touch with me to ask about [N].  This did not happen.  However, [N] did not ask about her father at all whilst we were in hospital.

His refusal to talk to me even when our child is in hospital demonstrates his bitterness and hatred towards me … I felt really bad for [N] that her father did not come and see her in hospital and I didn’t know what to tell her. I was not about to explain to my six-year-old daughter that her father refuses

to talk to her mother and that is why he hasn’t made the effort to come and

see her.

(emphasis added)

[33]     Further, Mr S’s unchallenged evidence was that when he received the news from his lawyer that N had been in hospital he was very upset and his lawyer advised him not to contact Ms B or N.   In these circumstances, I agree that the Judge’s conclusion that Mr S put his own needs ahead of his daughter’s was unfair.

[34]     Mr S also said that when he saw N the following week she told him that Ms B had been able to talk to N’s grandfather by phone from the hospital.   The inference to be drawn from this evidence was that Ms B could have either contacted Mr S herself or arranged to have a message conveyed to him earlier than she did. Ms B seems to have accepted that she spoke to her father from the hospital but dismissed the possibility of having him convey a message because her parents and Mr S had “never gotten on and the communication between them has never existed.”

[35]     This is a convenient point at which to note the curious absence of Ms B’s parents as witnesses.  When Ms B was cross-examined on this point she gave the implausible explanation that “[t]hey didn’t see the need in sitting outside for eight hours, they didn’t think they’d be called up”.   Given the significance of Ms B’s parents to important aspects of Ms B’s case (likely changes to the granny flat, child- care arrangements while working, N’s letter and the feasibility of conveying a message to Mr S from hospital) either or both of her parents could reasonably have been expected to have been called.

[36]     The appropriate course would have been for Ms B’s counsel to have sought leave to call them or for the Judge to have indicated that he would give leave if it were sought and, if it were not, to indicate the risk of an adverse inference being drawn if they were not called.11    Given the challenge to Ms B’s credibility and her assertion of matters that only her parents could have confirmed, this was a situation

in which the decision not to call them should have been taken into account.

11     Perry Corporation v Ithaca (Custodians) Ltd [2004] 1 NZLR 731 at [153] – [154], citing Jones v

Dunkel (1959) 101 CLR at 308, 312 and 320 – 321.

Grounds 4 – 7: L’s behaviour and bedwetting

[37]     I deal with these three grounds together because, as counsel acknowledged, they overlap to a significant extent. The specific complaints are that the Judge:

(a)       Treated the parties’ responses to L’s bedwetting as reflective of their

respective attitudes to communication;

(b)Wrongly found that Mr S had failed to ensure that professional help was obtained and carried through;

(c)       Wrongly attributed Ms  B’s  failure to  respond  appropriately to  L’s

bedwetting to a general breakdown in communication; and

(d)       Failed  to  give  sufficient  weight  to  Ms  B’s  explanation  for  not

completing the necessary parenting programmes.

L’s bedwetting

[38]     Before I consider these criticisms I briefly describe the issue regarding L’s bedwetting.  L regularly wets his bed.  It appears to a longstanding problem dating back to before the parties separated which worsened after the separation.  For a time Ms B took the view that he would grow out of it.  But in 2012 she finally sought a referral to the Public Health nurse.  Nothing appears to have come of that, however; on 13 September 2013 her GP’s practice wrote to Ms B advising that there was a long waiting list and the Public Health Office had not returned its calls.

[39]     In the meantime, there were steps that could be taken, particularly limiting fluid intake before bed and getting L up during the night to use the toilet.  But no significant progress appears to have been made and the parties’ accounts conflicted over who was more diligent about implementing these steps.

[40]     The Judge commented:12

12 At [75].

[71]      … The couple had failed to meet to discuss a common  plan to address [L’s] bedwetting or to make a joint appointment to obtain a plan to jointly implement.

[72]      The appallingness of that is shown by:

(a)      Mr  [S]  in  his  week  implementing  a  plan  to  address bedwetting that produced some dry nights.

(b)      Mr    [S]    abandoning   that   plan   because   it    was    his understanding that Ms [B] did not implement it.

(c)      [L] now being wet every night in Mr [S’s] care.

(d)      Ms [B] subsequently implementing Mr [S’s] plan and now

reporting some dry nights when in her care.

…

[75]      It  may be that [L’s] bedwetting arises from physiological causes which will pass or it may be for behavioural reasons.  But the reality is that neither parent has ensured that professional help has been sought, then carrying  through  with  a  recommended  plan,  notwithstanding  that  the problem was formerly identified as long ago as in October 2012 and known about well before then.

[76]     An example of the lack of expert evidence on the issue was the attempt  by counsel to cross-examine  the social worker  as to  night time incontinence. The social worker plainly was not an expert in that field.

[41]     Mr Cooke submitted that the Judge’s finding at [71] that Mr S abandoned his plan because he believed Ms B was not implementing it was incorrect because in evidence Mr S said that L had conveyed a direction from Ms B to stop waking him up in the night because he needed his sleep and, as a result, he stopped getting L up at night but continued to restrict fluid intake before bed.  But Ms B claimed that she avoids large fluid intakes before bed and wakes L at midnight or 1am each morning to take him to the bathroom.

[42]     The reason for the Judge’s obvious sense of frustration is evident when one reads the notes of evidence and affidavits, with both parties claiming that they are right and blaming the other.   I see no error in the Judge’s approach to treating the lack of progress with L’s bedwetting as symptomatic of the lack of communication between these parties.

No updating psychological evidence

[43]     There is a matter that is of concern, however, that counsel did not address, namely the lack of expert evidence available to the Judge in dealing with this issue. For reasons that were not explained no psychological report was obtained in respect of the children even though L has had what appear to be quite serious psychological problems, of which bedwetting may be symptomatic.  In May 2012 L was referred to Counties Manukau Whirinaki for a mental health assessment.   Counties Manukau

Whirinaki13 recorded that:

The school was concerned about his behaviour.   They reported that [L] frequently lies, makes up stories of a sexual nature and he was not achieving academically.  He was seen with his father and stepmother, Mr ]S] and Ms [K] on the 08/04/2013 for an Initial (Choice) appointment by Tafadzwa Mavhunga,  occupational  therapist  …  Another  phone  call  was  made  to Ms [B] (biological mother) who shares her concerns.  She reported that [L] has anger outbursts at home and pushes boundaries.  When angry he can be physically aggressive.  His anger outbursts are triggered by not getting his own way.  Ms [B] believed that he does this because he knows that Mum does not have back-up …

Our impression is that [L’s] challenges were precipitated by the separation of parents a few years ago and are perpetuated by the dissimilar parenting styles between the two homes.  This continues to present as a challenge for [L] to manage.

[44]     Whirinaki recommended that L’s parents complete a parenting course, that Ms B complete the Parenting Through Separation course and that the parties use consistent behavioural strategies between the two homes to manage L’s behaviour. The Judge referred specifically to this advice and noted the incomplete response regarding the parenting programmes, concluding that:

[81]     Consistent behavioural strategies between the homes have not been implemented because of the parties’ failure to meet the Whirinaki recommendations and to communicate with each other.

[82]      While it is my finding that Ms [B] has been the parent who has most failed to engage in programmes to assist [L] both parents must bear some responsibility for the failed communication between the homes.

[45]     In a s 132 report prepared by a CYFS social worker, Pamela Putland, on

31 July 2013, she reported on the information she had obtained from the children’s

13     The date shown on the letter, 17 May 2013, is wrong and should be 2012.

school  about  L,  which  included  the  fact  that  the  Daily  Report  book  that  went between home and school “illustrates a pattern of improved behaviour at school and willingness to help with any task when in the care of his Dad and stepmother but deteriorating behaviour when in his mother’s care”.  It also reported a comment from the children’s maternal grandparents that “they find [L’s] behaviour challenging and note his disrespect towards his mother”.  In her report Ms Putland covered, though not in detail, issues relating to the children’s accommodation, inconsistency in parenting (particularly in relation to the school communication diary and L’s bedwetting) and L’s general behaviour, and had concluded that the children would benefit more from being in the day-to-day care of Mr S than that of Ms B:

I see merit in the children being primarily in their father’s and Ms [K’s] care spending some weekends and parts of school holidays with their mother …

Mr [S] and Ms [K] demonstrate through describing their family life and routines that they know what good parenting looks like and can implement it

– boundaries, rules, positive experiences etc.

Ms [B] has a different style of parenting, not better, not worse.   In many situations this would not be an issue; but [L] has special needs which require a tight plan to address his bedwetting, his behaviour and his educational needs. To achieve this, there needs to be a primary caregiver arrangement so the children know exactly where home is.

If the children are in their dad’s and stepmother’s care for school weekdays, there would be greater opportunity to put in place ongoing and consistent behaviour modification in respect of [L’s] lying, bedwetting and meltdowns and extra tuition in respect of subjects [L] is behind in.

[46]     There  was  little  evidence  at  the  Family Court  hearing  about  L’s  current behaviour aside from his ongoing bedwetting.  The gist of Ms B’s evidence was that L’s general behaviour (bedwetting aside) had improved from what it was in 2012. She described him as a “very happy young boy”.   Likewise, Mr S described L as well-behaved when he was with him, allowing for the typical misbehaviour any child is likely to present.  The social worker who gave evidence reported her enquiry with the school for the purposes of the most recent hearing; the principal said that the children had not come to her notice for a long time.

[47]     It may be that by the 2014 hearing L’s behaviour had improved from what it

was in 2012 and 2013.  However, against that very troubling history, the lack of any

objective report and the fact of L’s continued bedwetting, an assessment of what was in the children’s best interests could only be made with the benefit of information about the nature and extent of L’s needs.  The tenor of the judgment is that the Judge has viewed both parties’ performance as inadequate to some extent and confirmed the shared care arrangement in the hope or expectation that the parties will realise the urgent need to change their ways.  However, he did so specifically acknowledging

the lack of evidence as to L’s incontinence, which I consider to be an error.14

Ground 8: Coaching of children

[48]     This issue arose from the report by the children’s lawyer, Mr Finnie, of

15 May 2014 recording the children’s wish to spend more time with Ms B than with Mr S.   It was put to Ms B that she had coached the children to say this.   The allegation of coaching was based on an earlier episode, in which Ms B had produced letters, just before a hearing into the children’s safety during care, suggesting that Mr S had been violent towards the children.

[49]     There had been a hearing scheduled for 1 August 2012 to determine s 60 issues; in affidavits over the course of 2011 both Ms B and Mr S had referred to the fact that they had each physically disciplined the children but by early 2012 the position described in their respective affidavits was that no physical discipline was currently being used and that they both regarded unsupervised care by the other as safe.  It therefore came as a surprise to Mr S when his counsel received a letter from Ms B’s counsel dated 30 July 2012 alleging physical force against the children and attaching letters said to have been written by L and N.  These letters refer to Mr S abusing and punching L and being mean and slapping N.

[50]     In an affidavit filed in response to this development (which Mr S put down to Ms B finding out that he was in a new relationship) Mr S annexed these letters, together with a speech that L had written at school, in which L described his father in extremely positive terms.   Notwithstanding the allegations made in the letters the parties agreed at the Family Group Conference on 11 October 2012 to trial shared

care on a week about basis. At a later hearing Judge Fleming held that although both

14 At [136].

parties had physically disciplined the children in the past, they were safe in each

parties’ care.

[51]     Ms  Norton,  who  represented  Mr  S  in  the  hearing  before  Judge  Maude, submitted that the children had been coached to write the 2012 letters and that was it was likely the children had been coached prior to their meeting with Mr Finnie for the purposes of the hearing before Judge Maude.

[52]     The Judge held that:15

I am of the view that if [L] and [N’s] July 2012 letters were not the result of prompting by Ms [B] (and I think that, on the balance of probabilities, they likely were) then at the very least they were influenced by the atmosphere in her household leading up to the 1 August hearing.

The coincidence in timing is too great to indicate otherwise and the willingness of Ms [B’s] mother to act as the scribe for [N] too much an indication of adult engagement for me to come to any other view …

The views of [N] and [L] expressed this month to Mr Finnie, their lawyer, however, in my view, paints a different picture.

They express a wish to spend more time with their mother however, fall well

short of a coached plea to desert their father’s care.

Absent are comments designed to expressly support the mother’s position …

I do not find that the children in the lead-up to this hearing have been coached as to their views.  I am cognoscente [sic] in coming to that view that the social worker reporting to the Court in July 2013 observed that [L] had: “a reputation for lying and stealing and fantasising behaviour …”

[53]     Mr  Cooke  submitted  that  this  finding  did  not  reflect  the  totality  of  the evidence and that the proper inference to be drawn was that Ms B had influenced the children in expressing their views.

[54]     The Judge’s conclusion at [94] that Ms B had coached L and N in relation to the 2012 letters but not in the lead-up to the 2013 hearing was based on the apparent lack of express support for Ms B’s position and the fact that L had a reputation for lying and  fantasising.   There was no  credibility finding regarding Ms B, either

generally or in relation to this particular issue.

15     At [94] and [101].

[55]     I  agree  with  Mr  Cooke’s  submission  that  the  Judge’s  conclusion  is  not consistent with the weight of the evidence.  The fact that the children did not “over egg” their position regarding support for Ms B has only limited significance given that the statements were made during a private conversation with Mr Finnie when their mother was not present.  When Ms B was cross-examined, her explanation of the 2012 letters was implausible and her denial of coaching for the purposes of the hearing hardly whole-hearted:

At the end of the – I’ve never told them “I want you to be here” or “I want you to be there”.  I said “I would like for us to spend time together, you need to spend, you know, time with Dad, you never spend time with Mum”.  I’ve never actually said “I want you here period”.

[56]     The matter was not touched on in re-examination.

[57]     However, ultimately, the views that the children expressed to Mr Finnie did not persuade the Judge to favour Ms B over Mr S.  Whilst the conclusion is not the one I would have reached on this issue nor is it one that affected the outcome.

Ground 9: Social worker’s evidence

[58]     A Child Youth & Family social worker, Ms Ashby, gave evidence.  She had no direct knowledge of the family and had not been involved in the proceedings. She gave evidence because Ms Putland, the author of the s 132 report, was no longer with the Department.  Ms Ashby could add little to Ms Putland’s report, though she did identify the general possibilities in terms of assistance for Ms B and Mr S, including a family whanau agreement.

[59]     The Judge referred only briefly to Ms Ashby’s evidence:

[137]    The author of the social work report was represented at hearing by her supervisor, who provided evidence that the Ministry of Social Development would provide mentoring and therapy for these two parents for a period of at least three months and possibly longer.  I specifically sought her confirmation that that was the case and she confirms that.

[60]     Mr Cooke submitted that the Judge was wrong to rely on evidence from

Ms Ashby because she had not prepared the report.  I do not accept this submission;

Ms Ashby’s evidence was very limited and the only aspect of her evidence that the

Judge did rely on was general information regarding therapy available to the parties.

[61]     Mr Cooke also submitted that the Judge made an error of fact in referring to Ms Ashby as being the supervisor of the report writer.  It is true that Ms Ashby was not Ms Putland’s supervisor at the time she wrote the report.  However, it was not a point that attracted any attention during the hearing and the Judge’s error made no difference to his conclusion.

Ground 10: Failing to take into account Mr S’s resources

[62]     There was evidence during the hearing from Mr S that showed his financial position to be much stronger than that of Ms B, with the inevitable result that he was able to offer the children a higher standard of living in material terms.  I have already referred to the superior standard of accommodation that Mr S is able to offer the children, with a substantial family home with separate bedrooms for the children. Mr S also gave evidence of a substantial combined income of $160,000 between him and Ms K.  He referred to his desire that L and N have the opportunity to have a private school education, as his older daughter (from a previous relationship) had had.  He was, however, only willing to finance private school fees if he had day-to- day care of the children.

[63]     Mr Cooke submitted that the superior material benefits and opportunities available to the children in Mr S’s day-to-day care were a significant and justifiable consideration in determining the children’s best interests16  and that the Judge had erred in not placing greater weight on this aspect.

[64]     It will frequently be the case upon separation that one parent has greater financial resources than the other.  However, in the usual course differences such as a private school education or larger house would rarely outweigh the intangible value of time spent with both parents and their respective wider families.  I do not consider

that the Judge made any error in not placing greater weight on these factors.

16     D v W 13 FRNZ 336 at 359.

Developments subsequent to the appeal hearing

[65]     Following the filing by Ms B of her updating evidence regarding L’s sleeping arrangements Mr Finnie filed a further memorandum himself reporting an approach he had received from a social worker at Whirinaki Child & Adolescent Mental Health Services in relation to L.  Both the timing of this approach and the nature of the information provided caused Mr Finnie serious concern.

[66]     I held a telephone conference with counsel on 14 November 2014 to discuss this matter.   Mr Finnie expressed the strong view that a psychological report in respect of L should be undertaken.  Counsel for Mr S and Ms B agreed with this. There is,  however,  uncertainty over the appropriate course.    The directing of a psychological report and consideration of it fall within the specialist expertise of the Family Court.  But all counsel expressed serious concerns about the current delays in the Family Court.

[67]    This is a matter which does need to be expedited; if there are ongoing behavioural  and  bedwetting  issues  affecting  L  then  an  appropriate  intervention should be undertaken as quickly as possible.  There is now little left of this year but if steps were able to be taken between now and the start of the next school year a significant difference could be achieved.

[68]     As a result of my discussion with counsel I indicated that I would release this judgment  today,  leaving  the  issues  relating  to  a  psychological  report  to  be determined next week.  By 5 pm, Monday 17 November 2014 counsel will file either memoranda or, preferably, a joint memorandum identifying:

(a)      Whether it is feasible for this Court to direct the production of a psychological report for the purposes of use in the Family Court and remitting this matter to the Family Court; and

(b)      The proposed identity and brief for a suitable report writer.

Conclusion

[69]     I have concluded that the Judge did make some errors, particularly in his criticism of Mr S for not visiting N after she came out of hospital and in finding that the  children  had  not  been  coached  by  Ms  B.    However,  the  Judge’s  overall assessment of the evidence was right and these are not major issues that would lead me to differ from the Judge.

[70]     I do, however, consider that the Judge was wrong to attempt an assessment of what was in the children’s best interests without expert assistance regarding the nature and extent of L’s behavioural issues and needs.  The Judge appears to have taken the view that L’s problems are attributable to the breakdown in communication and lack of co-operation between the parties, a conclusion for which there was an inadequate evidential basis.   In addition, he has assumed that further counselling would lead to the necessary change in the parties’ behaviour, without putting in place any means for reviewing compliance with the conditions and their effectiveness.

[71]     The appeal is allowed.  I would usually remit the matter to the Family Court but  will  postpone  making  an  order  pending  receipt  of  counsels’  memoranda regarding a psychological report.

[72]     The parties may address the issue of costs as follows: (a)      Mr S may file a memorandum within 14 days; (b)      Ms B within seven days of that; and

(c)       Mr S may reply within a further seven days.

[73]     I have consulted with counsel as to the reporting of this decision.  They are agreed that it may be reported as Shaw v Brown and I direct accordingly.