Silver v Strang
[2017] NZHC 942
•10 May 2017
ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF THE PARTIES AND THE CHILD.
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CIV-2016-409-000881 [2017] NZHC 942
BETWEEN RICHARD SILVER
Appellant
AND
KIM STRANG Respondent
Hearing: 15 February 2017 Appearances:
Appellant in person
Respondent in person
Ms N Ebert as counsel for the childJudgment:
10 May 2017
JUDGMENT OF NATION J
[1] Mr Silver and Ms Strang have a daughter, Kate, born in 2009.1
[2] Kate lives mainly with her mother in Christchurch but has contact with her father and his two sons. Mr Silver lives in Nelson. There have been a number of disputes between the parents which have been the subject of various applications in the Family Court from 2010.
[3] On 26 January 2015, Mr Silver filed an application with the Family Court seeking orders relating to:
(a) his wish to have certain Court records corrected;
(b) the issue of a United Kingdom (UK) passport for Kate;
1 To protect the identity of the child who is the subject of these proceedings, the names of the parties and any identifying information have been anonymised.
SILVER v STRANG [2017] NZHC 942 [10 May 2017]
(c) provision for Kate to be able to travel with him to the UK; and
(d) future arrangements for the contact he would have with Kate if he relocated to Christchurch in 2017.
[4] There was a hearing in the Family Court in relation to Mr Silver’s application on 2 August 2016.
[5] Issues as to a UK passport, UK travel and contact were dealt with in a judgment of Judge Harrison of 5 August 2016. Contact issues, relating to Mr Silver’s possible return to Christchurch in 2017 and Mr Silver’s application to have the Court record corrected, were the subject of minutes of 3 August 2016.
[6] Mr Silver filed a notice of appeal on 30 August 2016 against the decision regarding the amending of Court records, UK travel and future care arrangements.
[7] I heard the appeal on 15 February 2017. As was the case in the Family Court hearing before Judge Harrison, both Mr Silver and Ms Strang were self represented. Ms Ebert appeared as counsel for Kate.
Jurisdiction on appeal
[8] Section 143 Care of Children Act 2004 (the Act) permits a party to appeal a decision of a Family Court in proceedings under the Act to:
(a) make or refuse to make an order (other than an interlocutory or interim order); or
(b) dismiss the proceedings; or
(c) otherwise finally determine the proceedings.
[9] Mr Silver had a right to appeal the orders made as to UK travel. The Judge’s decision to adjourn the application for orders as to the shared care of Kate if Mr Silver was to be living in Christchurch did not finally determine that application as it remained before the Court. The Judge did not dismiss that application but I treat her
decision to adjourn the application as being a decision to refuse to make an order. Mr Silver accordingly had a right to appeal that decision.
[10] The Judge’s refusal to make an order amending Judge McMeeken’s minute was probably in the nature of an interlocutory order in that it did not finally determine the proceeding. On that basis, Mr Silver would have had no right of appeal as to the Judge’s decision. Mr Silver’s challenge was actually to the decision of Judge McMeeken as recorded in her minute of 17 September 2014. Although his objection was not to the decisions recorded in that minute but to an observation she had made as to the background to those decisions. Any appeal in respect of Judge McMeeken’s decision of 17 September 2014 had to be brought within 20 workings
days of Judge McMeeken’s decision.2 Because the Act did not specify the time
within which an appeal had to be brought, Mr Silver could have applied to the High Court for leave extending the time for appealing that decision. The High Court Rules specify that such an application should have been made by interlocutory application on notice to Ms Strang. No such application was made.
[11] Mr Silver and Ms Strang have made full submissions as to the issue which Mr Silver has wanted to raise in respect of Judge McMeeken’s minute. I have considered their arguments carefully in considering the submissions which Mr Silver had made in relation to other aspects of his appeal. In the circumstances, I have treated Judge Harrison’s decision, refusing to amend the earlier minute, as a substantive determination rather than an interlocutory order. This is an indulgence to Mr Silver but will hopefully assist in enabling the parties to treat that particular issue as at an end.
Approach on appeal
[12] The appeal is brought under s 143 of the Act. The appeal is a general appeal.3
The principles are set out in the Supreme Court judgment of Austin, Nichols & Co
Inc v Stichting Lodestar.4 In summary:5
2 High Court Rules, r 20.3; Care of Children Act 2004, s 143(4).
3 Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1.
4 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
5 At [4]-[5].
(a) the appellant bears an onus of satisfying the appeal Court that it should depart from the decision under appeal;
(b) it is only if the appellant Court considers that the appealed decision is wrong that it is justified in interfering with it;
(c) the extent of the consideration which an appeal Court, exercising a general power of appeal, gives to the decision appealed from is a matter for its judgement; and
(d) on a general appeal, the appeal Court has the responsibility of arriving at its own assessment of the merits of the case.
Rectification of the Court record
[13] On 17 September 2014, Judge McMeeken issued a minute after a hearing or conference during which Mr Silver had been involved via telephone. Ms Strang had appeared in person and Ms Gardner had appeared as lawyer for Kate. The minute at para [6] recorded the Judge’s decision that s 139A(2) of the Care of Children Act prohibited Mr Silver from making the application which he had filed in May 2014. At para [9], the Judge formally dismissed those proceedings but indicated:
If Mr [Silver] wishes to reinstate them he will need to make (sic) leave and, as I have indicated, it is my clear view he will need to take some legal advice first”.
She added:
[10] It is a shame to see these parties back before the Court. I dealt with them in a hearing in January 2013 and I had hoped that as time passed they would be able to parent more co-operatively. It is unfortunate for [Kate] that that has not occurred.
[14] The Judge then dealt with a live issue over an order for costs which another Judge had made against Mr Silver, after he had failed to appear at a directions conference on 12 June 2014. Her minute recorded that Mr Silver had applied for a rehearing in respect of that costs award. The Judge directed that the rehearing application be sent to the Judge who made the order.
[15] In her minute, the Judge made the following general observation:
[7] Sadly, this is a case where there are two mature and intelligent parents who were never in a relationship but made a decision to have a child together and since that child’s birth there have been difficulties. Unfortunately, these difficulties simply continue and, notwithstanding that Judge Somerville recorded the agreements that have been reached, there are still difficulties.
[16] On 22 October 2014, Judge McMeeken issued another minute which recorded:
Mr [Silver] has written to the Court asking that my minute of the 17th September 2014 be amended at para 7. I stated that the parents ‘were never in a relationship’.
That view is based on para 2 of Ms [Strang]’s affidavit of 21 August 2010, and para 2 of Mr [Silver]’s affidavit of 1 April 2010, Ms Feltham’s memo of the 14 May 2010 at para 8, and Ms [Strang]’s affidavit of 15 Sept 2010 at para 7.
Subsequent affidavits referred to ‘going out together’ but there is no agreement that there was a ‘long-term relationship’. If Mr [Silver] wishes he may file an affidavit detailing his view of and evidence of the ‘relationship’, so that any future Judge may have his view on the file.
[17] The background to the birth of Kate was discussed in some detail by Judge McMeeken in her judgment of 30 January 2013 in which she decided a dispute over Kate’s name in Mr Silver’s favour. In that judgment, she said:
[4] The background to this dispute is interesting and explains why there are now two relatively full Family Court files relating to [Kate].
[5] [Kate]’s parents are mature, intelligent adults who deliberately chose to have a child. That distinguishes them from many of the people who come to Court asking the Court to make decisions about children that accidentally came to be born. This was a child whose birth was planned. The mother wanted a child and was not in a relationship and it seems after some discussion it was agreed that the mother would have a child fathered by the father. We have just had some discussions about that because it is clear that their expectations were entirely different and that has led to all of the litigation including this litigation.
[6] The mother’s view is that she envisaged that the father would have some contact and indeed that is why she had a child to the father rather than an anonymous donor because she acknowledged the benefits of a child knowing their biological father. The mother did not ever envisage that the father would be wanting to have virtually equal rights with her and she freely acknowledges that she is angry about his demands.
[7] The father seems to have a different view and his view is that he only agreed to be the father on the basis that he would have an involvement in his daughter’s life. I can only say that it is most unfortunate that the situation continues to be a difficult one.
[8] The mother and father never lived together but the father is a guardian pursuant to s 18 because his particulars are registered on [Kate]’s birth certificate.
[18] Mr Silver neither appealed that decision nor made any request for correction
of the Judge’s reference to the circumstances in which Kate was conceived.
[19] Mr Silver filed two affidavits in support of an initial application for parenting orders, both sworn on 23 February 2010. In the first of those affidavits he said nothing about the nature of his relationship with Ms Strang. In the second, he used a partially printed form where clause (2) read:
The respondent [Ms Strang] and I have been married / in a relationship /
living together for “N/A” years / months.
“N/A” was Mr Silver’s insertion. In a further affidavit of 1 April 2010, Mr Silver crossed out that particular paragraph altogether.
[20] In an affidavit of 21 April 2010, Ms Strang said the way Mr Silver had used these paragraphs was not contentious. She also said, “[Richard] and I were not in a relationship at the time of [Kate]’s conception nor subsequently”. She said they had always maintained their own homes. In para [7] of Ms Strang’s affidavit of 15
September 2010 she said that she and Mr Silver had “never lived together in any
form of relationship”.
[21] Consistent with Judge McMeeken’s minute of 22 October 2014, Mr Silver had a solicitor who had acted for him previously swear an affidavit which was filed with the Family Court. In that affidavit of 13 July 2015, Mr Daley referred to an affidavit which Ms Strang had filed in other proceedings between Mr Silver and the mother of his two sons. Mr Daley said that, in her affidavit, Ms Strang had confirmed that in 2007 she was in a relationship with Mr Silver, they spent all their time together going between separate homes and she envisaged them having a future together but were taking things one step at a time. All that is consistent with Ms Strang’s affidavit of 11 October 2007, a copy of which Mr Silver filed with the High Court on 4 January 2017.
[22] In his chronology for the appeal, Mr Silver said:
In 2007 [Ms Strang] and I were in a relationship for most of the year. We did not live together. We stayed at each other’s houses in [Christchurch]. We took holidays together and with my sons (then aged 9 and 7). We formulated a plan for having a child together …
2008 we split up but remained close spending much of our free time together. We both dated other people but unsuccessfully.
He then said they were successful in Ms Strang conceiving a child as she had wanted when they were in a committed relationship.
[23] In her chronology for the High Court, Ms Strang said, although she and Mr Silver were in a relationship in 2007, it was not analogous to marriage. They did not live together. The relationship ended before the end of 2007. She said they were not in a relationship at the time she became pregnant with Kate in September 2008.
[24] In relation to this issue, Mr Silver contended in the notice of appeal:
The Judge failed to show cognizance of the five affidavits of correction from my lawyer Mr Jeremy Daley and myself which were filed on judicial instructions so that the Court’s records could be corrected and prejudicial, misleading, and injurious information updated. The pattern of the respondent making unsubstantiated allegations continue to impact on my ability to continue my teaching career and provide for my children.
[25] Judge Harrison dealt with Mr Silver’s complaint carefully in her minute of 3
August 2016. She recorded that Judge McMeeken had indicated that if Mr Silver wished to file an affidavit detailing his views and evidence of the relationship, he should do so to ensure that any future Judge would have his view on the file, and that Mr Silver had done that.
[26] Judge Harrison said the focus for her had to be on the welfare and best interests of Kate with regard to the issues that she was required to consider. The Judge did not consider the nature of the parents’ relationship at the time of Kate’s birth or conception was pertinent to the issues over the UK passport and UK travel which the Judge was required to determine. The Judge, however, went on to consider the Family Court Rules 2002. She said it was not a situation where r 204 could be used on the basis there had been a clerical mistake or slip in the judgment, as Judge McMeeken’s minute recorded what she had intended to say at the time. She also said no application had been made for a rehearing in terms of r 209(1).
Because such an application has to be filed within 28 days of when a judgment is delivered, this course of action was no longer available to Mr Silver. Judge Harrison concluded that the particular issue of correcting the Court record was thus at an end.
[27] On the hearing of the appeal, Mr Silver did not argue that the Judge had made any mistake in her analysis of what the Family Court Rules would permit.
[28] The statement which Judge McMeeken made, which Mr Silver objected to, was a brief observation based on the information which was before her, including material provided by Mr Silver. It was not in any way a judicial determination as to a matter which had been in dispute. Her observation was not material to the actual decisions which were recorded in her minute. It will not be material to decisions which any court may have to make in the future.
[29] At the time Mr Silver made an issue of Judge McMeeken’s observation, he knew that Ms Strang had sworn an affidavit for his benefit in which she described the nature of the relationship in the year before Kate’s conception. He had the benefit of Judge McMeeken’s judgment of 30 January 2013. The most important aspect of the relationship between these parties was that they were the parents of Kate. The importance of that had been acknowledged in Judge McMeeken’s careful judgment where she dealt with an issue between guardians over Kate’s name.
[30] On reading the Family Court file, my assessment is that Mr Silver has allowed a misplaced grievance about a minor matter to assume an unwarranted importance, which has become mixed up with his grievance about what has happened in the Family Court and the way he considers others have made it difficult for him to have the relationship he wants with his daughter. What should have been of little significance must have added to the emotional impact the disputes in the Family Court have had on him. His sense of grievance about this must have caused him to incur additional legal expenses in obtaining the affidavit from his lawyer. His dwelling on this must also have been frustrating to Ms Strang, contributing to the manner in which, on occasions, she has reacted negatively to Mr Silver. All of this is part of what has made it more difficult for these parents to work together in doing what is best for their daughter.
[31] I am satisfied Judge Harrison was correct in concluding that the Family Court Rules did not permit her to direct that a correction be made to Judge McMeeken’s minute. I also agree with her conclusion that the issue, as to whether the minute should be altered in the way Mr Silver requested, was at an end. I am also satisfied that it is not in the interests of Kate for her parents to be involved in any continuing proceeding or argument over this issue. Mr Silver’s appeal as to Judge Harrison’s decision on this issue is dismissed.
Future contact arrangements – relocation to Christchurch in 2017
[32] In Mr Silver’s application to the Family Court of 26 January 2015, he detailed a number of alleged difficulties in arranging agreed contact with Kate and difficulties which he said he had encountered in having to arrange contact from Nelson with Kate and her mother living in Christchurch. He said he had a section in Christchurch, adjacent to a local school, on which he could then rebuild. He said that, if he and his sons were living back in Christchurch, he would like to have at least an equal role in Kate’s guardianship and day-to-day care.
[33] In her response in the Family Court, Ms Strang said that she considered Kate was happy and settled in her current situation and environment. She did not believe it would be in Kate’s interests to disrupt the status quo, especially during the week. She also said she did not believe that Mr Silver had any firm plans to relocate to Christchurch. She responded in detail to the statements Mr Silver had made in his application as to difficulties which had occurred over contact and the reasons for them.
[34] Ms Strang swore an affidavit in support of her position. It dealt with all issues before the Court but included numerous statements responding to Mr Silver’s complaints over past issues and difficulties.
[35] In an affidavit in reply of 23 June 2016, Mr Silver responded to the affidavit of Ms Strang. As with affidavits in earlier proceedings, the parents had again become consumed by disagreements over what had happened in the past although, to his credit, Mr Silver did say “[Kate] is a fantastic child to spend time with and [Kim]
has done great things for her”. That affidavit contained no further detail or certainty as to Mr Silver’s potential return to Christchurch.
[36] Ms Ebert, counsel for Kate, filed a second report to the Family Court of 29
July 2016 in which she advised the Court of comments which Kate (then aged seven)
had made to her. Those comments included the following:
If Dad moved back to Christchurch that would be good. I could be busy except on Friday but maybe on the weekends I could see him. He will probably move back to his old house. He has been talking about that.
[37] Ms Ebert ended the report with the statement:
It is clear from [Kate]’s comments to me that she is very much aware that Mr [Silver] is indeed her father and she is also very aware that her relationship with her brothers is as half-siblings. If and when Mr [Silver] returns to reside in Christchurch an increase in Mr [Silver]’s care of [Kate] would be in her welfare and best interests and it seems that the terms of increased care for Mr [Silver] would need to be negotiated at that time. [Kate] appears to envisage at least some weekend time would be something that she would like.
[38] In her minute of 3 August 2016, Judge Harrison recorded that this aspect of Mr Silver’s application was discussed with him in Court on 2 August 2016. The Judge recorded that she raised a concern about the lack of evidence before the Court on which to base decisions regarding Kate’s future care arrangements and her indication the Court would not be prepared to make an order for future care arrangements on the basis that Mr Silver might return within a specified period. The minute also recorded that Mr Silver indicated his preference was to approach the matter of the future care arrangements in two stages:
Stage 1 – to have a trip to the UK with [Kate]
Stage 2 – to then consider whether he will return to Christchurch
[39] The Judge then made directions:
(a) There is to be a case review hearing date of 6 December 2016.
(b) If Mr [Silver] intends to relocate to Christchurch in 2017 and his plans have firmed up, then he is to file an affidavit on or before 6 December
2016 setting out the following:
(i) details of his impending return, including a date of return, his proposed living arrangements and work commitments.
(ii) his proposal for a shared care arrangement for [Kate] including days and times, where the handovers would take place, term time and Christmas school holiday arrangements, [Kate]’s birthday, special days such as Mothers day & Fathers day.
(iii) he is to detail his reasons why he believes the proposed shared care arrangements will be in [Kate]’s welfare and best interests.
[40] In her response to the appeal, Ms Strang said there continued to be considerable uncertainty as to what Mr Silver’s living arrangements might be and where or how he might be working if he were to return to Christchurch. She supported the approach taken by Judge Harrison in her minute.
[41] In his grounds of appeal, Mr Silver claimed:
The Judgement took no account of the ample evidence that our contact with [Kate] was being obstructed and minimised. We now have no practical contact times with [Kate] and the urgent application I made to try to relocate to Christchurch in 2017 has been deferred to 6 December which is too late
…
[42] In his written submissions, Mr Silver said “Ms [Strang] has opposed contact for [Kate] with us as every stage of [Kate]’s life”.
[43] I have read through all the documents and evidence on the Family Court file. I do not see the situation as being black and white in the way Mr Silver suggests.
[44] For reasons she gave in affidavits filed initially in the Family Court proceedings, Ms Strang was anxious, defensive and insecure about the role Mr Silver would have in Kate’s life after her birth. That may well have resulted in her being less forthcoming and cooperative in facilitating contact initially in the way that Mr Silver wanted. There are also numerous documents that show she has come to accept that Mr Silver and his family should be involved with Kate, had enabled Kate to value the relationship which she did have with her father, her half-brothers and her awareness of her relatives in the UK. Further, she has at times taken the initiative in advancing specific proposals for contact to take place.
[45] On 13 January 2014, Judge Somerville recorded in a minute an agreement reached between the parties after four hours of negotiation in a mediation
conference. He recorded that the parties had signed an agreement which included provisions:
(i) day to day care to Ms Strang;
(ii) Mr Silver’s contact while he remained living out of Canterbury to be for six weeks during the school holidays, three of which would be during the Christmas school holidays. Mr Silver to have Kate in his care for Christmas Eve to Boxing Day in 2015 and subsequent odd years. In
2015 and subsequent years, Mr Silver was to advise Ms Strang by 31
January of his preferred dates for the following Christmas holidays;
(iii) Ms Strang, wanting Kate to be happy in her relationship with Mr Silver, agreeing to him having equal guardianship rights, full discussion of guardianship issues, free access to medical records and consultation about all health issues;
(iv) Mr Silver having the right to take Kate to the UK for no more than four weeks during 2014 (despite it possibly delaying her starting school); and
(v) on Mr Silver returning to Canterbury, the time Kate would be in his care would be reviewed sympathetically.
[46] On the other hand, there is a recurring pattern of Mr Silver dwelling upon and magnifying in importance his sense of grievance about statements which he says Ms Strang has made about him or past events, and his wanting to address those grievances even when doing so was not essential to the arrangements which the parents needed to agree on to promote Kate’s relationship with her father and his family.
[47] While there have been difficulties over arranging contact, there is evidence which indicates that Mr Silver has very strong views about just how he should be involved in his daughter’s life. He is reluctant to compromise on those views and has found it hard to accept either Ms Strang’s or the Family Court Judges’ views as to concessions he should make or compromises he should accept in order to achieve the best outcome for Kate in all the relevant circumstances. The evidence on the
Family Court file indicates there have been a number of occasions where Mr Silver has not obtained what he wanted, has then blamed others for the situation that has eventuated and then refused to take advantage of the opportunity for further contact, even though the varied arrangements would still have been of benefit to his daughter.
[48] Consistent with that, Judge Harrison recorded in her decision of 5 August
2016 that, at the conclusion of the hearing before her, Mr Silver made it clear that, if the Court did not order a 56 day trip as Mr Silver wanted, there would be no trips to the UK for Kate.
[49] The agreement of 13 January 2014 recorded the parents’ agreement that Mr Silver would have the right to take Kate to the UK for no more than four weeks during 2014. That did not happen, it seems, not because of Ms Strang’s objection to such contact occurring but because Mr Silver had proposed that Kate, then aged 4, should travel unaccompanied with Malaysian Airways from New Zealand to the UK.
[50] In accordance with the 13 January 2014 agreement, Kate should have been able to spend three weeks with her father during the 2014/2015 Christmas school holidays. Ms Strang detailed how she had on four occasions, over August and September 2014, asked Mr Silver to say what dates he would like to have Kate over the holidays and how she planned to have Kate with her in Australia, returning at
7.00 am on 11 January 2015. According to her evidence, on 1 December 2014 Mr Silver proposed that Ms Strang should immediately, on her return from Australia, drive Kate to Nelson. For reasons which she explained, Ms Strang did not consider this would work.
[51] In a letter of 10 December 2014 to Ms Strang, Mr Silver’s lawyer raised various issues. Ms Strang responded calmly and rationally to him in a letter of 12
December 2014, explaining her position over what was to happen and why the arrangements she proposed over changeover were necessary. It was clear that, despite the areas of disagreement, Ms Strang intended and planned for Kate to be with her father for three weeks from 11 January 2015 to 1 February 2015 over that Christmas holiday on her return from Australia. She also confirmed in that letter she
had agreed to Mr Silver taking Kate to the UK for up to four weeks in 2015 with two of those weeks to be over a school holiday.
[52] While Ms Strang was in Australia, she received a letter dated 22 December
2014 from Mr Silver’s lawyer stating:
It is apparent that there is a significant disconnect between your respective positions.
From Mr [Silver]’s perspective, he remains firmly of the view that there has been a complete breakdown in terms of compliance with the agreement … In the circumstances he proposes to revisit the extent and nature of contact in the new year by way of an application to the Family Court.
Given the inability to reach agreement in respect of the scheduled contact between Mr [Silver], his sons and [Kate] in the new year, he gives notice that that contact will not now proceed.
[53] Ms Strang said, in documents in the Family Court, that Mr Silver did not take Kate to the UK in 2015 because ultimately he wanted to take her for five weeks, the majority of which were in the school term. I infer that neither parent was willing to compromise on the positions they had adopted.
[54] In documents filed in the Family Court, Ms Strang says that, between 5
November 2015 and 11 December 2015, she proposed dates for Mr Silver to have Christmas contact on eight occasions before ultimately an agreement was reached for Kate to be with Mr Silver for three weeks beginning in early January 2016.
[55] In a minute of 27 September 2016, Judge Somerville recorded that he had discussed an issue with the parties. Mr Silver was wanting to take Kate with him to the UK for 59 days (nearly eight and a half weeks). Ms Strang was agreeable to her being away for 28 days provided that incorporated school holidays from 9 to 24 July so that she would miss only two weeks of school, meaning the travel should be from
10 July until 10 August. Judge Somerville’s minute recorded this offer was unacceptable to Mr Silver, who considered it impracticable because it would not work in properly with his sons plans for their holiday and it was only one of a number of issues which he wished to address in the proceedings. Mr Silver thus rejected the offer so that Kate did not travel at all with him to the UK, a response
which deprived Kate of the benefit she would, in all likelihood, have obtained from the compromised position that was available.
[56] In April 2017, I had direct experience of the difficulties these parents have in dealing with this sort of issue. After I had reserved my judgment, Mr Silver approached the High Court for urgent assistance when he considered a problem had emerged in his being able to take Kate to the UK so that she could see her grandmother when it appeared her grandmother might not have long to live.
[57] I dealt with this request immediately by convening a hearing by way of a telephone conference. Ms Strang’s initial response during the telephone conference hearing was to complain at the lack of any prior notice that this issue was going to be before the High Court.
[58] Mr Silver wanted to be able to take Kate to the UK on an extended and open- ended basis. I indicated that, if I were to make any order in this regard, it would have to be consistent with the Family Court judgment which allowed for both a two week trip to the UK in the event of an emergency or four weeks travel if two weeks of that coincided with a school holiday. Mr Silver’s immediate reaction was to indicate that such restrictions would be unreasonable and unacceptable.
[59] Fortunately, despite those positions, both Ms Strang and Mr Silver did contribute to further discussions. I produced a summary judgment which provided a framework within which, in the immediate circumstances that existed, Mr Silver would have been able to take Kate to the UK. Very soon after this, Mr Silver wrote to the Court generally complaining about what he said was the history to his application but stating:
I am not going to hold a stop watch over my mother’s last days and cut our time in the UK short so that [Kate] can get back by 25th … I do not want to horsetrade with Ms [Strang] over [Kate] seeing my mother nor do I want this to be made into yet another obstacle course.
[60] Despite Mr Silver’s expression of these sentiments, I was pleased to be advised by Ms Ebert that Ms Strang and Mr Silver were able to agree to the basis on
which Mr Silver was able to take Kate to the UK for a little over four weeks beginning 5 April 2017.
[61] One of Mr Silver’s complaints is that Ms Strang has a pattern of making unsubstantiated strategic allegations to get her own way and solo-parent Kate. As an instance of this, in a memorandum to the Court of 23 May 2016, he said “her latest suggestion that I have been trying to poison [Kate] is extremely disturbing”. In an affidavit of 23 June 2016, Mr Silver said:
The allegation that my sons and I have tried to poison [Kate] is a concern and the latest in an escalating pattern of falsehoods that can only be damaging to the relationships of those concerned.
…
When the issue surfaced in January and in order to reassure Ms [Strang] my older son and I drove all the way down to Christchurch with [Kate] to try to reassure Ms [Strang] and to try to get her to reassure [Kate]. It was not a success.
[62] In response, Ms Strang said that, on a return from spending time with her father, Kate told her mother that her father said he was poisoning her.
[63] Any statement Kate made about this should sensibly have been treated by both parents with appropriate scepticism.
[64] Ms Strang’s reaction may have added to Kate’s anxiety over this. In her reply, Ms Strang said she was shocked but questioned Kate as to whether she meant by words or food. That response might have indicated to a young child that her mother thought there was some reality in what Kate was saying as to what her father had said. Ms Strang says she told Kate to ignore completely what her father had said. That response might also have indicated to Kate that her mother believed Mr Silver might have made a statement as described by Kate although it would have also indicated that, if such a statement was made, she should not take any notice of it.
[65] There was however no evidence that Ms Strang had, herself, made any allegation that Mr Silver or anyone in his family had been attempting to poison Kate. In the Family Court, she did however refer to what she reported Kate as having said
to her as an example of inappropriate and/or bizarre behaviour on the part of Mr Silver as if what Kate had told her about Mr Silver making such a statement was true.
[66] The way Mr Silver dealt with this potential issue would also have aggravated any anxiety that Kate may have had about this. According to him, when she was staying with Mr Silver in Nelson and after she had refused to eat her food and said something about her fear of being poisoned, Mr Silver drove her and her older step- brother from Nelson to Christchurch to have her mother reassure her that this was not the case. He complained that Ms Strang refused to do this. The fact he went to such lengths would have suggested to Kate that what she was saying should be treated more seriously than the whole situation warranted.
[67] What is clear from a number of statements on the file is that both parents accuse each other of doing or saying things which would alienate this young girl from the other parent. It would not be surprising if in either household this young girl has heard things which suggest to her that the other parent has been in some way attempting to “poison” her against the other parent. The fact Kate has apparently made such statements or acted in a way consistent with such an idea should demonstrate to these parents how the conflict between them, their inability to communicate with each other positively or to make compromises and put themselves out for the benefit of their daughter, has the potential to be seriously damaging for her.
[68] There is also significant evidence that indicates Mr Silver is unwilling or unable to appreciate and acknowledge the extent to which his actions or decisions have made it difficult for him to have the relationship he wants with Kate. It is difficult for him to be involved extensively and regularly in Kate’s daily life when he is living in Nelson but Kate and her mother are in Christchurch. Mr Silver’s move to Nelson may have largely been forced on him as a result of the Canterbury earthquakes. But, from what I was told, Mr Silver is renting a home in Nelson and is not in permanent or fulltime employment there. Any move from Nelson now would however be of concern to his second son who is in year 12 and doing level two NCEA at secondary school. It would be understandable that Mr Silver might choose
to remain living in Nelson in the immediate future. If, however, Mr Silver is committed to playing a greater part in Kate’s life, it could be expected that he would be working now towards a move back to Christchurch so that he can more easily have time with Kate.
[69] I do not consider that Mr Silver is being rational or reasonable in taking the view that a decision about rebuilding in Christchurch has to be conditional on his knowing how he will have more equal care of Kate, as expressed in his points of appeal and in his written submissions.
[70] I have considered the way the parties have communicated with each other and also the way they have presented their cases to the Family Court, as apparent from documents on the Family Court file. Often they have been inflexible over the particular positions they have adopted. In communicating with each other or with the Court, they have not simply set out their respective positions but have included in the communications some disparaging comment about the other or some criticism over some other matter other than the issue which needs to be resolved. Communications in such a manner lessen the prospects of obtaining cooperation. While both Mr Silver and Ms Strang have communicated with each other in this way at times, it is much more often a significant characteristic of the way Mr Silver deals with matters, than with Ms Strang.
[71] The email correspondence that occurred between June and September 2016, when Ms Strang was trying to confirm when Mr Silver could have Kate with him over the September school holidays, is a good example of this. In that context, Mr Silver repeatedly and unnecessarily referred to his belief that Ms Strang had accused him of trying to poison Kate. Ms Strang made it clear to him in an email of 19 June
2016 that she had made no such allegation and had no reason to.
[72] On the evidence that was before the Family Court and with what I learnt from the submissions which Mr Silver made to me personally, I do not accept that Ms Strang has been so obstructive about Mr Silver’s relationship with Kate, so as to require Judge Harrison to make orders for the parents to share equally in the care of
Kate if, at some uncertain time in the future, Mr Silver returns to live in
Christchurch.
[73] When the matter came on for hearing before Judge Harrison, there was no agreement as to what the arrangements should be if Mr Silver did return to live in Christchurch.
[74] Although it might have been hoped that Kate’s parents would be able to deal with potential changed care arrangements with mutual respect for each other and a focus on what would be in Kate’s best interests moving forward, the history of the proceedings in the Family Court and the detailed allegations and counter-allegations made by the parties during those proceedings suggest that such a constructive approach to dealing with a possible change would probably not have been adopted if there had been a hearing over this potential situation.
[75] If there had been a full hearing and argument over the future care arrangements for Kate were Mr Silver to live in Christchurch, the parties would again have been dwelling on all the detail as to why and how things had allegedly gone wrong in the past. That would have further damaged the relationship between Ms Strang and Mr Silver and made it more difficult for them to cooperate as parents. That is something they will need to do if they are to share the care of Kate in the way that Mr Silver would like, if he does ultimately come to live in Christchurch.
[76] It would also have been difficult for Judge Harrison to assess just what impact shared care arrangements might have on Kate without knowing where Mr Silver would be living in Christchurch, what commitments he might have with employment, what activities Kate might be involved in both in and out of school, just what sort of social contact she might be having with her contemporaries at the time and how, in all the circumstances, her welfare could be enhanced by the parents sharing in her care.
[77] If such an assessment has to be made by a Judge, one of the most crucial considerations will be whether either or both parents have demonstrated that they are able to communicate with the other constructively and with mutual respect, so that it
is not difficult or stressful for the child to move frequently between two different homes.
[78] It was apparent from Mr Silver’s submissions to me that there continues to be considerable uncertainty as to his possible return to Christchurch. He has not applied for teaching positions here. His younger son is in year 12 at school and it seems he might want to stay in Nelson. Like others in Christchurch, Mr Silver unfortunately is facing some difficulty and uncertainty over the potential rebuild of a home on the Christchurch section. When I heard the appeal, Mr Silver had just been told that his mother was terminally ill in the UK. He indicated that this was also creating some uncertainty as to precisely where he would choose to live in the future.
[79] In oral submissions to me, Ms Ebert said that, potentially, she could see no problem in changing care arrangements if Mr Silver were living in Christchurch. She said that Kate would probably want that. She thought Ms Strang would probably welcome it because she is working and it would mean Mr Silver could potentially share the responsibility of providing day-to-day care of Kate. Ms Ebert was however making submissions about a potential situation only.
[80] I do not consider there was any error in the approach which Judge Harrison took in effectively deferring consideration of what the care arrangements might be at some indeterminate time in the future, if and when Mr Silver returns to Christchurch. With her decision, Mr Silver’s application for shared care orders remained before the Court so he did not have to obtain leave to file a further application if he did decide to move back to Christchurch. Her orders gave him the opportunity, if he was prepared to take advantage of that opportunity, to have a trip to the UK with Kate and to then decide how he wished to proceed. This was in line with how he said he wanted to proceed. As matters have turned out, such a trip has just now taken place.
[81] Having regard to Kate’s best interests, I consider the deferral of Mr Silver’s application for shared care orders was appropriate. His appeal in relation to the Judge’s decision in this regard is dismissed.
UK travel
[82] Judge Harrison’s decision records that Mr Silver had wanted Kate to travel to the UK annually for a period of 56 days (eight weeks) but during cross-examination had suggested the length of time should coincide with her age, meaning that when she is seven years the trip ought to be for seven weeks. The Judge noted that Mr Silver believed it important his daughter have the same opportunities as his sons with regard to regular trips to the UK during the English summer months, which he identified as May/June/July/August/September, but that his preference was for the trip to coincide with the English July/August holiday period which was when his sons usually travelled to the UK. In giving evidence, he had said he would home- school her during this period so she did not miss out on her education in New Zealand.
[83] The Judge recorded Ms Strang’s belief that a holiday period of 28 days would be adequate and her wish that holiday travel to the UK coincide with the New Zealand school holidays so as to minimise the amount of time Kate was out of school. The Judge said it was Ms Strang’s preference that the travel to the UK should occur every alternate year.
[84] The Judge referred to Ms Ebert’s report as to what Kate had said to counsel a few days before the hearing. Kate was reported as saying:
I would probably say we could stay there for four weeks but four weeks would count for the time it would take to get there … The longest I’ve been without mum is about three weeks. I live with her.
[85] Judge Harrison said she took into account:
(a) the trips to the UK would provide Kate with a rich experience of her identity and her heritage;
(b) the trips would provide an opportunity for Kate to travel abroad to
Europe; and
(c) the trips would provide an opportunity for Kate to be with her father for an uninterrupted period of time.
[86] Balanced against that, factors she took into account were:
(a) Kate lives in New Zealand. Her permanent residency was New Zealand, unlike her father who she recorded as considering his permanent residence to be in the UK;
(b) Kate attends school. As she became older, it would become increasingly more important for her to be at school to meet the requirements of the curriculum. Kate had friends; and
(c) Kate may become involved in extra-curricular activities or school activities that require her presence. Such things might make Kate reluctant to be away for increasingly longer periods from year to year.
[87] Judge Harrison considered the frequency of the travel ought to be yearly. She noted that, while she was required to take account of Kate’s views, those views were not determinative. She considered the length of time for a trip to the UK should be
28 days unless the travel occurred in the New Zealand December/January holiday period in odd numbered years, in which case the travel could be for 42 days. The Judge considered it would not be in Kate’s best interests to have increasingly longer periods away from New Zealand as she advanced in age, for example, a 16 year old to be away for 16 weeks of the school year. The Judge considered such lengthy periods of absence could well have a detrimental impact on Kate’s critical years of secondary schooling.
[88] The Judge considered the long distance air travel would provide a unique opportunity for Kate and her father to spend time together. She considered this would be positive and that the experience for Kate would not be restricted just to her time on the ground in the UK. The Judge considered an annual month long trip would be sufficient for Kate to make and maintain relationships with her family members in the UK and, with careful planning, would allow for potential travel to a European country.
[89] The Judge made orders:
(a) permitting Kate to travel to the UK with her father each year;
(b) the first trip of 28 days duration could occur in September and October
2016 on the basis it included a two week period of the third term school holidays; and
(c) thereafter, there could be an annual holiday to the UK of 28 days duration provided two weeks of that period coincided with a New Zealand term school holiday, unless the travel was to occur during the New Zealand Christmas school holidays in which case:
(i)the travel would occur in alternative years to the Christmas school holiday trips that Kate has with her mother to Australia; and
(ii) the duration of the trip to the UK during the Christmas school holiday period would be for 42 days.
[90] In the case of a family emergency or special occasion in the UK, Kate was to be permitted to travel to and from the UK with her father for a period of up to two weeks.
[91] The Judge also made orders as to how and when Mr Silver was to give notice of his intentions (including provision of details of travel and relevant addresses), provision for contact between Kate and her mother, and accompaniment during travel.
[92] In his notice of appeal, points on appeal, memoranda and written and oral submissions to me, Mr Silver argued, amongst other things,:
(a) Judge Harrison had no regard to the pattern of care that had existed for his sons which enabled them to have 56 days annually for trips to the UK in the summer months, neither had she considered Mr Silver’s ability to home-school Kate during UK travel;
(b) Kate’s views had not been appropriately ascertained in that her counsel had spoken to her only when she was with her mother and when she was subject to her mother’s influence;
(c) the Judge appeared to have been unaware that Mr Silver had his two sons in his sole care and had not considered their relationships with Kate;
(d) the Judge took no account of “the ample evidence” that Mr Silver’s
contact with Kate was being “obstructed and minimised”;
(e) provision for visits to the UK during New Zealand summer holidays was pointless because the nature of an English winter and Mr Silver’s health problems meant it would be impossible for him to visit the UK at that time of the year, and the possibility had not been discussed during the Family Court hearing; and
(f) The Judge was in error in making an order permitting a trip in September/October 2016 because such travel was impossible for Mr Silver.
[93] In submissions and in documents filed with the Court, Mr Silver is intensely critical of the way Ms Ebert has conducted matters as counsel for Kate. One of the grounds of appeal included the statement that:
Despite a series of timely and reasonable requests, the lawyer for child saw [Kate] (7) with her mother on two occasions and in a situation where [Kate] could not speak freely and repeated verbatim what her mother then said in the hearing.
[94] After the hearing on 15 February 2017, Mr Silver wrote to the High Court with a complaint against Ms Ebert as the lawyer for his daughter. He said his complaint related “to the enduring bias shown by Ms Ebert and to her lack of concern for the emotional security and well being of [Kate]”. He complained of the lateness of receiving her report as to what she had been told by Kate and the fact she had not contacted him during January 2017 when Kate was staying with him. He made allegations that Kate would not have been able to talk freely to Ms Ebert in the way that Ms Ebert interviewed her. He referred to allegations of poisoning and to a report from Judge Walsh in the Family Court as to a complaint he had made regarding Ms Ebert’s conduct during those proceedings, contending that the most serious concerns in his letter of complaint had not been dealt with. Mr Silver asked
that this letter of complaint to the High Court be considered alongside the submissions he had made during the hearing.
[95] I have not sought a response from Ms Ebert to the complaint which Mr Silver made in his letter of 27 February 2017 before giving this judgment because her response would not have altered my judgment.
[96] In her submissions and in affidavits in the Family Court, Ms Strang has described the circumstances in which she said Ms Ebert interviewed Kate at her mother’s home and why Kate would have been able to speak to Ms Ebert freely and say what she meant.
[97] Ms Ebert responded to a complaint made by Mr Silver to the Family Court by saying that she had chosen to talk to Kate in a setting where the child was comfortable rather than in an office environment. The Judge dealing with Mr Silver’s complaint accepted the appropriateness of that decision and said Mr Silver’s complaint, that in the bedroom Kate would have felt constrained because the conversation could have been monitored, was speculation.
[98] As Family Court Judges are well aware, it is possible for young children to be influenced in what they say about their wishes through their understandable desire to please both their parents. In this case, what is important is that Kate was only aged seven at the time of the hearing in the Family Court. As Judge Harrison said, her views were not going to be determinative. They were clearly not, as far as Judge Harrison was concerned, because with her orders she made it possible for Mr Silver to take Kate with him on trips to the UK during the summer school holidays for periods of up to six weeks.
[99] There was also no indication in Judge Harrison’s decision that Ms Ebert had been negative about the actual or potential relationship between Mr Silver and his daughter or as between Mr Silver’s sons and Kate. The indications are to the contrary.
[100] Ms Ebert, in her submissions before the Family Court, submitted it would be in Kate’s welfare and best interests for her to be able to travel with Mr Silver to England to meet with his family, even if this involved taking some time out of school.
[101] Ms Ebert had not travelled from Christchurch to Nelson to speak to Kate when she was with her father over that time. She spoke to Kate not long afterwards when she was back in Christchurch before the hearing of the appeal. Ms Ebert told me that Kate had talked positively of being away in the UK for a period of four to five weeks. Ms Ebert noted this represented something of a shift from the three to four weeks Kate had spoken of before the hearing in the Family Court. This suggests that perhaps Kate had become more comfortable at the prospect of being away from her mother for a little longer than she had been previously, perhaps as a result of her having just returned from three weeks with her father. It also suggests Kate felt able to express an opinion as to what would work for her, even though what she said differed from what her mother had earlier said would be appropriate.
[102] Before me, Ms Ebert did support the decisions which Judge Harrison had reached. Her submissions were not in line with what Mr Silver wanted but those submissions reflected her professional view as to what she considered would promote the welfare of the young child she represented. Both in the Family Court and before me, Ms Ebert’s submissions appear to have been much framed by the realities as to Kate’s age, the fact she was living with her mother in Christchurch, that Mr Silver was positive about the way Ms Strang is a parent to Kate in a general sense and the fact Mr Silver is living in Nelson.
[103] In submissions to me, Ms Ebert stressed that Kate was very aware of her English heritage and that it was important for her to be able to travel to the UK. She did make the submission that it was important Kate not spend too long away from school and made the appropriate submission that, as Kate grew older, her friendships and social life outside school would become more important. Ms Ebert said that Kate “dearly loves her father”. Consistent with what was a generally positive picture which Ms Ebert presented as to the relationship between Kate and her father, Ms
Ebert had suggested that potentially there could well be a change in the care arrangements if Mr Silver does decide to live in Christchurch.6
[104] I do not accept that Judge Harrison failed to take into account Mr Silver’s wish to be able to take Kate with him on extended travel to the UK at the same time as he might travel to the UK with his sons. Mr Silver’s wish to have contact with Kate that fitted in with arrangements for his two sons is clear from the affidavits that were before the Family Court. Ms Ebert told me that Mr Silver’s wishes in this regard featured in the discussions which took place in the Family Court. This is as I would expect given the importance which Mr Silver placed on these matters when making submissions to me.
[105] Judge Harrison referred to the sons’ trips to the UK during the summer months and how Mr Silver said the travel was successful for them at several points in her judgment.
[106] Furthermore, from what I was told by Mr Silver during his submissions, it was understandable and sensible for the Judge not to make arrangements for UK travel on the basis those arrangements had to be synchronised with arrangements for Mr Silver’s sons. Mr Silver’s oldest son is now 18. He is attending a fulltime course of tertiary study in the North Island. Given his age and circumstances, the Family Court Judge could not have assumed that Mr Silver’s older son would be travelling to the UK during the English summer for a period of 56 days. I also do not make that assumption. Mr Silver told me that he had not taken his older son out of high
school for a UK trip when that son was in year 13 at his secondary school because
6 [Kate] has just returned to Christchurch from the recent four week trip to the UK with her father.
Ms [Strang] will naturally be interested in how it went. It is to be hoped that she has made it possible for [Kate] to speak of the trip without concern as to how her mother might react if it was a positive and enjoyable experience.
Unfortunately, the history of these matters suggests that, how the trip went, will ultimately be of concern to the Family Court in dealing with Mr [Silver]’s application for equal care if he returns to live in Christchurch. That application is still before the Family Court. For that reason, I direct Ms Ebert to arrange an appropriate time to talk to [Kate] to see what she has to say about the trip. There is no urgency over this. [Kate] should be reassured that what she says is not going to have an impact on any issue that the Court will be dealing with in the immediate future. The enquiry can be simply because the Judges may want to know how the trip went. Ms Ebert’s report as to what [Kate] has to say should be made available to the Family Court in the proceedings that are already before it, also to this Court and to the parents.
Mr Silver could not afford a trip at that time. Mr Silver had also not taken his older son to the UK the previous year when that son was in year 12. He said this was because the son had wanted to stay in Nelson where he had a job and a girlfriend, both factors in that son not wanting to go to the UK during that year.
[107] Mr Silver said it would be his younger son’s choice now as to whether he was away from his secondary school to travel to the UK for an extended period over the English summer.
[108] The relevant circumstances in which the Family Court had to determine matters at issue as between Kate’s parents were very different from those that exist with Mr Silver’s sons. Kate is considerably younger than her half-brothers. Mr Silver said that, after his move to Nelson in 2012, their mother had agreed or permitted their sons to be living primarily with their father in Nelson, with her having contact with them on what seems to have been a limited but flexible basis.
[109] In her judgment, Judge Harrison recognised the potential benefits there might be in Kate being able to travel with both her brothers and father to the UK, through expressly permitting Kate to travel to the UK during the English summer for a period of four weeks if two weeks of that coincided with a shorter school holiday. The Judge also recognised Mr Silver’s wish to have an extended time with Kate in the UK through allowing him to take her to the UK for six weeks in alternate years during the Christmas summer school holidays.
[110] I do not accept the Judge was in error in making an order that allowed Mr Silver to travel with Kate to the UK in September or October 2016. In his application, Mr Silver had sought an order that he be able to travel to the UK with his daughter in July or August. The application did not come on for hearing until 2
August 2016. If such travel was going to take place, Mr Silver and Ms Strang needed time to make the appropriate arrangements. In Mr Silver’s case, those arrangements might have had to include arrangements for the oversight of his two sons while he was away. The order did not require Mr Silver to travel to the UK at that time but gave him the option of doing so if, on balance, he considered it was important to have that time in the UK even if it meant leaving his teenage sons, who
were then in years 13 and 11 at high school for a time. Mr Silver must have decided it was not going to be of sufficient benefit to either him or Kate to undertake such travel. He accordingly did not take advantage of that opportunity. This does not mean that, having regard to what Mr Silver had originally wanted and the potential benefit to Kate of such a trip, it was wrong for the Judge to have made an order which would have permitted such travel.
[111] I do not accept the Judge was in error in not taking account of Mr Silver’s health issues in allowing for travel during a UK winter. Had that been relevant, I would have expected Mr Silver to have drawn attention to this in the evidence he put before the Family Court. He did not do so. I infer this must have been because either he did not consider it an issue at the time or perhaps because, consistent with his approach in other instances that I have referred to, he was determined that if he could not travel to the UK with his daughter on the terms he wanted then he would not take her to the UK at all.
[112] The orders made by the Judge did not oblige Mr Silver to travel to the UK during winter. The order provided a sensible basis on which he could choose to have extended time with Kate in the UK if he chose to take advantage of it. Given Mr Silver’s stated wish to ensure that Kate could spend time with her relatives in the UK and the particular pleasures that a young child might find in an English Christmas, it is unfortunate, from Kate’s point of view, that Mr Silver appears determined not to take advantage of the opportunity for Kate to have the experience of a holiday in the UK over an English winter in the way the existing orders provide for.
[113] The Judge obviously considered and took into account Mr Silver’s ability to home-school Kate while she was with him on any UK travel. She referred to Mr Silver’s evidence in this regard.
[114] For the reasons already discussed, I do not accept that the orders made by Judge Harrison should have been different because of Mr Silver’s assertion that the Family Court file demonstrated a history of Ms Strang obstructing or minimising the contact which Mr Silver could have with his daughter.
[115] I consider the orders Judge Harrison made allowing for Kate to travel to the UK with her father were carefully considered, took account of the competing views put to her by both parents and were in Kate’s best interests. They provided a framework within which both parents should have been able to, and can still, work to provide Kate with experiences which will be of benefit to her. That potential will however be achieved only if both parents concentrate on making arrangements, consistent with those orders, work. The potential benefit will not be achieved if either parent cannot move past their view as to what may or may not have occurred in the past. The agreement they reached over the recent UK travel suggests that there is some prospect of this being achieved.
[116] Mr Silver purported to file a further memorandum with the Court on 9 May
2017. He did not seek leave to do so. The memorandum repeats earlier expressions of opinion and attempts to provide evidence about his recent trip. New evidence cannot be put before the Court in this way. There was, however, nothing in the memorandum that has caused me to delay issuing this judgment or to seek further submissions or information from either Counsel for the Child or Ms Strang.
Conclusion
[117] Mr Silver’s appeal is dismissed. As neither parent was represented, I make no order as to costs as between them. In all the circumstances, I make no order requiring either party to make any contribution towards Ms Ebert’s costs.
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