TEJ v ROJ

[2013] NZHC 512

NOTE:  PURSUANT TO S139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO

11D OF THE FAMILY COURTS ACT 1980.  FOR FURTHER INFORMATION PLEASE SEE THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2012-404-4110 [2013] NZHC 512

IN THE MATTER OF     an appeal under s 143(1)(c)(ii) of the Care of Children Act 2004

BETWEEN  TEJ Appellant

ANDROJ Respondent

Hearing:         2, 3 and 4 October and 3 and 4 December 2012

Appearances: R C Knight and T A Chubb for appellant

J Robertson and J Hawker for respondent
C Elliott for children

Judgment:      18 March 2013

JUDGMENT OF ALLAN J

In accordance with r 11.5 I direct that the Registrar endorse this judgment with the delivery time of 4.30 pm on Monday 18 March 2013

Solicitors/counsel :

Martelli McKegg, Auckland

R C Knight, Auckland  [email protected]
Wynyard Wood, Auckland
J Robertson  [email protected]

C Elliott Auckland  [email protected]

TEJ V ROJ HC AK CIV 2012-404-4110 [18 March 2013]

Index

Para

Family background  [03] Post-separation events  [11]

Post appeal developments

Stay  [31] Appellant’s further evidence  [32] Psychiatric evidence  [45] The psychologist’s report  [49] The children’s views  [54] Leave to appeal  [61] The course of the appeal hearing  [69]

Legal principles

The approach on appeal  [71]

General principles  [75] The Family Court judgment  [82] Appeal grounds  [106] The children’s views in this case  [108] Section 133 report  [124]

Predictive assessment  [131] Section 5(a)  [132] What will Ms J do if a relocation order is made?  [133] Shared care  [154] Section 5(b)  [156] Disruption  [157] Parenting plans  [161] Section 5(c)  [165] Section 5(d)  [169] Contact with extended family  [170] Section 5(e)  [174] Section 5(f)  [175]

Other relevant matters

Ms J’s wishes and needs  [182] Running Ms J’s business from the United States  [185] Children’s primary need  [191] The parties’ situation in the United States  [193] Parental health  [200] What if Ms J is parted from the children?  [205]

Conclusion  [207] Result  [209] Parenting orders  [210] Costs  [217]

[1]      This is an appeal from an order of the Family Court made on the application of the respondent, Mr J, directing that the two children of the marriage of the parties, relocate to the United States of America.1   Because the relocation issue is a dispute

between guardians, the appellant, Ms J, requires leave to appeal.2

[2]      In the Family Court, Judge Fleming left the question of ancillary parenting orders over for further argument.  In the result, parenting orders were not made in the Family Court, because events were overtaken by the filing and prosecution of this appeal.  The parties are agreed that parenting orders should be made in this Court in

the light of the outcome of the appeal.3

Family background

[3]      The parties were each born in Oregon USA in 1970.  They established a relationship in 1996 and married in Oregon in 1998.  A daughter, V, was born on

9 February 2005, and a son, N, on 26 May 2007.  In 2010, the parties arrived in New Zealand with their children, having been approved for permanent residency in March of that year.

[4]      In October and November 2008, they had visited New Zealand on vacation. During the stay, Ms J attended to some work related activities.  She returned alone twice during 2009.  For some years, the parties had been interested in moving away from the US, and considered a move to a number of countries including Canada.

[5]      They lodged an expression of interest with the New Zealand Immigration

Authorities  in  July  2009,  and  filed  an  application  for  permanent  residency  in

November 2009.

1 J v J FCC Auckland FAM-2011-044-153, 20 June 2012.

2 Care of Children Act 2004 , ss 44 and 143(2).

3 Section 48, and District Courts Act 1947 s 76(1)(a).

[6]      They are now at odds as to their long term residence intentions when they arrived here.  Ms J says that they were to make a permanent home in New Zealand. On the other hand, Mr J says that the move to New Zealand was temporary, and that a return to Oregon was always contemplated after a sojourn of several years, or alternatively, no more than exploratory with the parties to make a decision about whether to remain in New Zealand once they had settled down and assessed the benefits of remaining here.

[7]      Mr J worked in the telecommunications field in Oregon.  Ms J ran her own public relations business.  In the course of that work, she developed business links in New Zealand.  Some of her work involved clients with business in both countries.

[8]      In about late 2008, Ms J met Mr H, who lived in New Zealand and was able to assist her with certain business related matters.  During 2009, he provided advice and practical help in the New Zealand immigration process.

[9]      Over Christmas 2011, the parties and their children holidayed in Hawaii with members of Mr H’s family.   Late in 2011, the personal relationship between Ms J and Mr H had deepened, and they became romantically involved.  The detail of that was the subject of much cross-examination in the Family Court, but is not significantly material for the purposes of this appeal.  For Mr J, it was suggested that he had been tricked by Ms J into moving to New Zealand so she could pursue her relationship with Mr H.   In my view there is insufficient evidence to justify that conclusion.

[10]     On 5 January 2011, Ms J told Mr J that she considered their marriage to be over, and on 12 January 2011 she moved out of the rented family home in Auckland and into Mr H’s residence.  On 14 January 2011, she introduced the children to her new living arrangements with Mr H.

Post-separation events

[11]     Although,  as  appears  below,  Court  proceedings  concerning  the  children quickly followed the separation, the parties have been able to make their own care

arrangements for the children over the past two years, pending eventual resolution through the Courts.  In broad terms, the children spend about half of the week with each parent in Auckland. The respective residences are not far apart.

[12]     On 14 January 2011, two days after separation, Ms J obtained a temporary listing through Interpol, preventing the removal of the children from New Zealand.4

On 28 January 2011, she obtained a “without notice” order in the North Shore

Family Court preventing the removal of the children from New Zealand.5

[13]     On 19 February 2011, Mr J filed a petition for dissolution of the marriage in the Circuit Court of the State of Oregon, Jackson County.  In it, he alleged:

(a)      that he had been domiciled and resident in Oregon for more than six months preceding the filing of the petition;

(b)he had been convinced by Ms J to move with the children to New Zealand where she refused to relinquish their passports so that they might return to the USA;

(c)      that he should have custody of the children and that Ms J should be awarded generous parenting time when she was in the USA, and not be permitted to remove them from that country unless she was accompanied by Mr J who was to have control of their passports; and

(d)that he had no knowledge of any custody proceedings “in any other State” (despite the proceedings already underway in the North Shore Family Court).

[14]     On 16 March 2011, Ms J applied to the North Shore Family Court for a parenting order, on the basis that the parties share care of the children, Ms J to have them in her care for four nights a week, and Mr J for three nights a week, this being

the arrangement that had been in place since the date of separation.

4 Care of Children Act 2004, s 80(a).

5 Section 77.

[15]     On 22 March 2011, Mr J first sought Ms J’s consent to the children travelling to the USA in order to visit members of his family.  By then, a serious concern had developed about the health of Mr J’s father.

[16]     On 24 March 2011, Mr J filed a cross-application in the Family Court for a parenting order and on 1 April 2011, he filed an application for an order permitting the children to be relocated back to the USA.

[17]     On 18 April 2011, counsel for the children was appointed, and the following day Ms J filed an application for orders under the Property (Relationships) Act 1976.

[18]     On 1 June 2011, the Circuit Court of the State of Oregon denied Ms J’s

motion to dismiss for want of jurisdiction Mr J’s proceedings in that Court, and on

3 June 2011, the Circuit Court made orders restraining the parties from:

(a)       changing the children’s usual place of residence in New Zealand;

(b)interfering  with  the  present  placement  and  daily  schedule  of  the children;

(c)       hiding or secreting the children from the other parent; and

(d)      interfering with the other parent’s usual contact and parenting time

with the children.

[19]     In a minute dated 25 July 2011, Judge Ryan,  sitting in the North Shore Family Court, delivered a minute noting that the Oregon proceedings did not bind the Family Court in New Zealand, and  that accordingly, the proceedings in the New Zealand Court would need to be progressed.

[20]     On 10 August 2011, the Oregon Circuit Court convened in order to consider Mr J’s application for temporary custody of the children, pending determination of his divorce petition.  The parties participated in the hearing by telephone and each gave oral evidence.  Each was represented by counsel.

[21]     On 12 August 2011, Circuit Judge Grensky gave judgment confirming that the Court had jurisdiction to make custody decisions regarding the children, and awarding  Mr J  sole  legal  custody  until  further  order  of  the  Court.    The  Judge confirmed that:

(a)      Mr J was entitled to make decisions as to where the children should live;

(b)      Ms J was to return N’s passport to Mr J immediately; and

(c)      Both  parties  were  to  provide  a  name  and  contact  information  in respect of anyone who had responsibility for the children while they were in that parent’s care.

[22]     As to day to day care, Judge Grensky ruled that the children were to spend equal time with both parents, as long as they were living in proximity to each other “ …where this is possible”.

[23]     Finally, Judge Grensky ruled “the children shall return to the United States as soon as possible to visit their paternal Grandpa who is seriously ill and hospitalised”. Plainly underpinning the Circuit Court judgment was the consideration that it was appropriate that the children should return to the USA to visit their grandfather by reason of his physical condition at the time.

[24]     On 19 August 2011, Mr J applied to the North Shore Family Court for an order discharging the order preventing removal of the children from New Zealand, upon the grounds that the children’s grandfather was dying in the USA and he wished to see them before he passed away.

[25]     On 23 August 2011, Judge Ryan issued a minute at a judicial conference in which he directed that a fixture for the application to discharge the order preventing removal should be accorded priority.  It was envisaged that the application would be heard early in September.

[26]     On 31 August 2011, the children’s grandfather died.  On 5 September 2011, Ms J applied to strike out Mr J’s application for an order discharging the order preventing  removal  of  the  children  from  New  Zealand.    In  an  affidavit  dated

13 September 2011 in opposition to the latest application by his wife, Mr J sought to pursue the application on the amended ground that the children ought to be able to spend time with his family in the USA after the death of their grandfather, and in particular to attend a second memorial service.   Mr J applied for costs against the applicant on the ground that her conduct in the Family Court proceeding had been vexatious and that he had been put to needless expense.

[27]     A half day hearing to determine Mr J’s application to discharge the order preventing removal took place on 29 September 2011.  It was adjourned part-heard and never resumed.  The adjournment was designed to enable the parties to take advice about the Oregon orders, but the focus of the parties soon moved to preparation for the relocation argument itself, which came on for hearing in the Family Court before Judge Fleming on  28 May 2012,  and  extended over three hearing days.  Judge Fleming delivered her judgment on 20 June 2012.  She granted the application permitting the children to be relocated to Oregon with Mr J.    The Judge considered that Ms J, despite her evidence suggesting the contrary, would go where the children were.

[28]     The relocation order was made conditional upon:

(a)       Mr J obtaining a discharge of the custody order in the Oregon Court; (b)      His undertaking to do all things necessary to ensure that the New

Zealand order was registered in the Oregon Court; and

(c)      If  required  by  Ms J  or  counsel  for  the  children,  to  co-operate  in obtaining orders in the Oregon Court which reflected those made in New Zealand.

[29]     In  a  minute  dated  12  July  2012,  Judge  Fleming  dealt  with  outstanding parenting order matters.  She indicated that if orders could not be made by consent,

then she would need to hear from the parties.  She also said that once the removal conditions specified in the substantive judgment had been complied with, Mr J could apply to the Family Court to discharge the order preventing removal of the children from the jurisdiction.

[30]     On 18 July 2012, Ms J filed this appeal.

Post appeal developments

Stay

[31]     Somewhat curiously, Mr J applied in the Family Court on 24 July 2012 for an order discharging the order of that Court preventing the removal of the children from the jurisdiction.  The application was made without notice, although served on a Pickwick basis.  The pre-conditions laid down by Judge Fleming in her judgment of

20 June 2012 for the filing of any such application had not been complied with. That led to an application by Ms J to this Court for a temporary stay of the substantive relocation order pending the outcome of the appeal.  An initial stay was granted on

31 July 2012, and extended by Duffy J on 29 August 2012 until the hearing of this present appeal.  At the commencement of the hearing before me I further extended the stay until delivery of this judgment.

Appellant’s further evidence

[32]     Ms J applied for leave to adduce further evidence on appeal.  Her application came on for hearing before Duffy J on 13 August 2012.   Her Honour delivered a judgment on 29 August 2012, in which the appellant was granted leave in respect of some, but not all, of the additional evidence which she sought to adduce on appeal.6

[33]     The appellant sought to adduce further evidence on appeal on the following topics;

(a)       Her personal circumstances;

6 TEJ v ROJ HC Auckland [2012] NZHC 2200.

(b)      The children’s Native American heritage;

(c)      The children’s education;  and

(d)      Guardianship, trust and confidence issues.

[34]     Ms J filed a draft affidavit setting out the further evidence that she wished to adduce on those issues.

[35]     The Judge considered the relevant principles at some length, noting that in general, the proposed new evidence must have arisen since the first hearing and be material.  But she recognised also that further evidence might be allowed for the purpose of clarifying confusion in the lower Court where, for one reason or another, a witness’s intention had not been adequately conveyed to the Court.  Every case had to be considered in relation to its own circumstances.  The power to admit further evidence was to be exercised sparingly; cogency, relevance and the possible effect of the evidence on the result must be taken into account.  The appeal ought not to be

turned into a new case as the result of the introduction of fresh evidence.7

[36]     With  respect  to  Ms J’s personal  circumstances,  the Judge made an  order

which conditionally permitted certain evidence to be given.  She said:

[23]      I propose, therefore, to allow Ms J to adduce this further evidence, but only for the purpose of establishing a change in her stance since the Family Court hearing on whether she will also relocate, or alternatively, to clarify a misunderstanding on the part of the Family Court so as to make it clear that it was always the case that Ms J doubted that she could relocate with the children.   Used for either of these purposes, the evidence falls within the first category of further evidence and satisfies the tests for admission.  Otherwise, the proposed evidence would fall into the second category and I consider that its use would be no more than an attempt to bolster the evidence that was already led at the Family Court.  When seen in this way, it would lack the necessary character of cogency and materiality to warrant its admission.   Nor do the circumstances of this case warrant any departure from the general principles that are applied to these types of applications.

[37]     The Judge refused Ms J leave to give further evidence about issues relating to the  Native American  heritage  of  the  children.    The  Judge  considered  that  the

7 Comalco New Zealand Ltd v Television New Zealand Ltd (1997) NZAR 97 (HC).

evidence concerned could, and should, have been given in the Family Court. Moreover, the evidence concerned was neither credible nor reliable, she thought. She also refused leave to adduce evidence about schooling in Oregon.  Duffy J considered that the detail of such schooling was not of central importance.  She did not believe that the issue of the children’s relocation hinged upon them attending a particular school.  The proposed evidence was neither cogent nor material.  That evidence also could have been obtained for the Family Court hearing if sufficient

inquiries had been made at the time.8

[38]    The Judge also rejected an application to adduce evidence on certain other disputes:

(a)      An alleged food intolerance in one of the children which Ms J claims Mr J refuses to recognise.  Nothing like that had been placed before the Court earlier and there was no medical support for the contention; and

(b)Facebook material which Ms J claimed illustrated the animosity felt within Mr J’s wider family towards her.

[39]     The Judge considered these issues to be of peripheral relevance only, and that they should have been raised at the Family Court hearing if Ms J wished to rely upon them.

[40]     In the result, Ms J was permitted to adduce further evidence only for the purpose of establishing a change in her stance since the Family Court hearing on whether she would relocate, or alternatively, to clarify a misunderstanding on the part of the Family Court.  Evidence of her personal circumstances could be adduced for either or both of those purposes.

[41]     However, Duffy J stipulated that if Ms J wished to provide evidence of her medical condition, then it should come in in the form of a medical report by a

suitably qualified health practitioner.  Moreover, if there was an issue regarding her

8 TEJ v ROJ, above n 6, at [28].

being clinically depressed, the Court should be informed by way of a psychiatric report that was presented as part of affidavit evidence from a psychiatrist.9

[42]     At the outset of the appeal hearing,  I heard argument as to whether the affidavit upon which Ms J wished to rely complied with the restrictions imposed by Duffy J. Argument on the point was extensive and hard fought.  In the end, I worked through the affidavit with counsel and indicated which paragraphs would be struck out,  and  which  would  be  permitted  to  remain.    Paragraphs  1-10  were  retained because they consisted virtually entirely of an explanation of Ms J’s difficulties in organising  supporting  medical  evidence.     Paragraphs  11-13  were  struck  out. Although   Ms J   claimed   the   evidence   supported   her   claim   to   having   been misunderstood by the Family Court Judge, the evidence consisted almost entirely of a transcript of portions of the notes of evidence in the Family Court, supported by what amounted to argument that could be, and was, advanced by counsel at the hearing of the appeal.

[43]     I permitted paragraphs 14-18 inclusive to remain.   This section dealt with Ms J’s relationship with Mr H, which was arguably connected with Ms J’s personal circumstances and the state of her emotional health.

[44]     The remainder of the affidavit, paragraphs 19-33 inclusive were struck out, save for paragraph 25, the first portion of 26, and 27.  The retained paragraphs appeared  to  deal  with  matters  arising  since  the  Family  Court  hearing,  and accordingly were fresh evidence.  The struck out portion revisited, in effect, matters that were covered in the Family Court.   Indeed, many of the excluded paragraphs expressly referred to what had been said in evidence in that Court.  The topics covered  in  this  struck  out  section  included  work  related  opportunities  in  New Zealand  and  the  nature  of  Ms J’s  New  Zealand  business,  problems  in  securing employment in Oregon, and housing costs and transport and set up costs there.  All of this material was outside the terms of Duffy J’s order.  For the most part it restated

material already before the Family Court, and therefore this Court on appeal.

9 At [17].

Psychiatric evidence

[45]     In the draft affidavit placed before Duffy J, Ms J referred to her depressive mental condition, and annexed a medical certificate.  Duffy J considered that not to be good enough, and directed that if there was an issue regarding Ms J’s mental health, the Court should be informed of that by way of a psychiatric report presented as part of affidavit evidence from a psychiatrist.10

[46]     Ms J explained in her affidavit of 14 September 2012 that through her general practitioner she had been referred to a psychiatrist, Dr Tina Page, who provided a report dated 23 August 2012.   However, Ms J said, Dr Page was not prepared to swear an affidavit because she accepts instructions from the Court as an independent expert, and therefore does not undertake court work for individuals.  That was apparently discovered only upon counsel sending Dr Page a draft affidavit based on her report.  It is difficult to see why that presented a problem for Dr Page, but the fact remains that she did not swear an affidavit annexing her report, as had been envisaged by Duffy J.

[47]     Mr Knight for Ms J dealt with that problem by issuing a witness summons requiring Dr Page’s attendance at Court on the first day of the appeal hearing. Ms Robertson argued strenuously that Dr Page ought not to be permitted to give evidence because Duffy J had directed that the evidence come in by way of affidavit; that would have given counsel for Mr J time to consider whether or not to cross- examine  Dr  Page.    However,  I ruled  that  in  the  circumstances,  Dr  Page’s  oral evidence ought to be received.  There was no prejudice to Mr J because counsel had Dr Page’s report some weeks earlier.

[48]     In consequence, Dr Page gave oral evidence.   She briefly confirmed the contents   of   her   report   and   was   cross-examined   at   considerable   length   by

Ms Robertson and Ms Elliott.

10 At [18].

The psychologist’s report

[49]     In  the  Family  Court,  by  consent,  no  psychologist’s  report  was  obtained pursuant to s 133 of the Care of Children Act 2004 (the Act).  On appeal, the parties took  a  different  line.    On  31  July  2012,  Wylie  J  directed  by  consent  that  a psychologist prepare a report pursuant to s 133, but that final directions as to the preparation of the report were to be given by the Judge hearing the application to adduce further evidence on Monday 13 August 2012.

[50]    Following the 13 August hearing, Duffy J issued a minute on 15 August, directing that a report be prepared by Ms Anne Raethel, a very experienced clinical psychologist. That minute set out the following directions:

[3]      The s 133 report is to address the following matters:

(a)      To assess the children’s relationship with their parents;

(b)       To identify the psychological advantages and disadvantages to the children remaining in New Zealand, or relocating to the United States, in light of their current psychological and developmental needs and their changing needs within the next five years;

(c)      To assess the children’s views regarding:

(i)       Care    arrangements    and   contact    arrangements, depending on whether both parents are residing in the same country as the children, or if one parent should reside in another country;

(ii)      Their views on extended family;  and

(iii)     remaining  in  New  Zealand  or  relocating  to  the

United States;

(d)      To  advise  what  factors  should  be  taken  into  account  in

assessing the weight to be accorded to the children’s views;

(e)       To identify what are the psychological factors which need to be taken into account in respect to the parties’ proposed care arrangements, including the fact that each parent may be living in a different country from that of the children; and

(f)       To identify the psychological factors which need to be taken into account in respect to the proposed contact arrangements, including taking into account the fact that one parent may be living in a separate country from the other.

[4]       I consider that it would also be helpful if the report writer were to cover the question of the children’s interaction with Mr [H] (the new partner of their mother) and, therefore, the following matters are also to be addressed:

(a)       To assess the children’s relationship with Mr [H]; and

(b)      To assess the children’s views regarding living with Mr [H]. [5]     It  would  also  be  helpful  if  the  report  writer  could  assess  the

psychological  advantage  and  disadvantages  for  the  children regarding their recognition of and maintaining contact with their North American Indian heritage.

[51]     Duffy J gave counsel 48 hours to comment on these directions.  Counsel for Mr J strongly opposed the inclusion in the proposed report of material relating to the children’s  relationship  with  Mr H  and  their  views  regarding  living  with  him. However,  Duffy  J  decided,  via  a  minute  dated  17  August  2012,  that  it  was appropriate that the psychologist assess the children’s views about Mr H and she maintained her direction that the psychologist’s report should cover that topic.

[52]     Ms  Raethel  accepted  instructions  with  commendable  promptitude  and produced a report dated 14 September 2012.  She was cross-examined over virtually a full day by all counsel in succession.  I gained considerable assistance and insight from her report, and the evidence she gave at the hearing.

The children’s views

[53]     Section   6(2)  of  the  Act   provides   that   in   proceedings   involving   the guardianship of a child, that child must be given reasonable opportunities to express views on matters affecting him or her.  Further, any views the child expresses, either directly or through a representative, must be taken into account.

[54]     In her judgment, Judge Fleming said:

[49]      The children’s views on the relevant issue, that is, whether they live in New Zealand or America are not known and at their age I would not expect they would be in a position to really present a view. What is clear, and has been throughout the proceeding, is that they want their present care arrangement to continue, and it will.

[55]     Judge Fleming did not see the children herself.

[56]    On appeal, Ms Elliott, who has been counsel for the children throughout, provided several successive reports to the Court, the last of them dated 29 November

2012 and so prepared half way through the appeal hearing.  Her reports contained some references to the children’s views on their relationships with each of their parents, and on their attitudes to living in New Zealand and the USA respectively.

[57]     During the hearing of the appeal, Mr Knight expressed a strong concern that the children had not been adequately consulted and that there had been a failure to ascertain their views on relocation issues for the purposes of s 6.  Ms Robertson and Ms Elliott each considered that the children’s views had been more than amply conveyed to the Court through Ms Elliott’s various reports and submissions.

[58]     In order to meet Mr Knight’s concerns, arrangements were made for the parties to meet together with the children and Ms Elliott, for the purpose of outlining to the children in a relatively formal way, the possible outcomes of the present appeal, in order to gauge their reactions. But the arrangements broke down in the light  of  coaching  allegations.  Counsel  disagreed  over  whether,  in  those circumstances, I ought to see the children myself.   Mr Knight argued that it was imperative that I do so; other counsel disagreed.  Both Ms Raethel and Ms Elliott argued that the Court had a significant body of material about the views of the children in respect of family matters and living locations.  That was sufficient, they maintained.  A matter of particular concern was what I termed “litigation burn-out”. Both Ms Raethel and Ms Elliott have expressed concerns  that both children, but especially V, were becoming somewhat fragile about discussing matters relevant to the present appeal, with possible consequences for their emotional well being.

[59]     Against that background I decided that I would see the children, along with Ms Elliott.  At the conclusion of the hearing on the afternoon of 4 December, I met them in my chambers.  As I had been promised, I found the experience wholly pleasurable and entertaining.  They are delightful, articulate and intelligent children, seemingly unaffected by the turmoil going on around them, although I well understand that they cannot possibly have been impervious to it.   Each was beautifully dressed.   V said she was wearing her latest party frock.   They both brought along their most prized possession and each volunteered to do a dance,

which they had separately learned at school, for me and Ms Elliott.  V’s dance lasted for several minutes and obviously was designed to be carried out to music which she must have been carrying in her head.  Not to be outdone, N danced an African dance. Although somewhat shorter, it was no less captivating.

[60]     The children are a great credit to their parents.  They were quite unaffected in their responses to a number of questions I asked about their daily lives, in particular their interests and activities.  I did not address the issues central to this case.  Given the evidence already before the Court as to views of the children, I considered any attempt to touch upon central topics would have been counter-productive.

Leave to appeal

[61]     This being a dispute between guardians on a guardianship matter, s 143 of the

Act provides that an appeal may be brought only by leave of the Court.

[62]     Ms  Robertson  opposes  the  granting  of  leave,  on  the  basis  that  Judge Fleming’s substantive decision was correct, and there is no sufficient basis upon which leave ought to be granted.   She submits there is a reasonableness threshold which Ms J is unable to meet.11

[63]     Disputes between guardians are many and varied.   They may touch upon matters of comparatively little moment.  An example provided by Mr Knight is that of a dispute as to which school a child should attend.

[64]     In ACCS v AVMB, Panckhurst J said:12

Equally, there may be disputes of a much more significant character, indeed disputes  which  are  fundamental  in  terms  of  their  consequences  for  the parents and child. The present case provides a good example. F’s relocation from Christchurch to London is plainly of fundamental consequence not only to AC (whose care and contact role in relation to his daughter will be drastically circumscribed as a result), but also to AN. As I commented to counsel in the course of argument, it was unthinkable that this decision as to relocation should not be susceptible of appeal to this Court. Leave to appeal is therefore granted.

11 Hutton v Palmer [1990] 2 NZLR 260 at 268.

12 ACCS v AVMB [2006] NZFLR 986 at [9].

w

[65] follo	In ing m (a)	A v H, a relocation case, Heath J in granting leave, took into account the atters:13 The issue of the residence of the child is an important matter affecting
the child for the purposes of s 16(2) of the Act;
(b)	The requirement for leave arose because the Family Court Judge had chosen to deal with the relocation issue as a separate matter from
associated parenting applications.  Had they been heard together there would  have  been  an  automatic  right  of  appeal  in  respect  of  the
relocation issue also;
(c)	The  question  of  relocation,  being  critical  to  the  nature  of  any
subsequent parenting orders that might be made, ought similarly to be capable of challenge on a first tier appeal.

 

[66]     In AMH v SH, 14 Hugh Williams J followed the judgments of Panckhurst and

Heath JJ in granting leave in a relocation case.

[67]     In the present case, Judge Fleming could have dealt with the parenting order applications as part of her relocation judgment.  The fact that she chose to deal with the  issues  in  sequence  ought  not  to  affect  Ms J’s  entitlement  to  review  of  the relocation judgment at appellate level.

[68]     I am satisfied that the substantive appeal raises serious questions deserving of appellate attention.  Leave to appeal is therefore granted.

The course of the appeal hearing

[69]     The appeal was set down for two days.  It quickly became apparent that the time estimate was inadequate.  The Court was able to sit for a third consecutive day on 4 October, but then my unavailability, together with that of counsel for the child,

resulted  in  an  adjournment  of  the  appeal  part-heard.    Regrettably,  competing

13 A v H HC Hamilton CIV-2006-419-1210, 27 October 2006 at [27]-[30].

14 AMH v SH HC Napier CIV-2010-441-347, 7 July 2010.

commitments of counsel and my unavailability by reason of other firm fixtures precluded a resumption of the hearing until 3 December.

[70]     In all, the hearing occupied four and a half days, significantly longer than most relocation appeals.  The length of the hearing is at least partly explained by the particular difficulties of the issues, and the thoroughness with which all counsel approached their task.

Legal principles

The approach on appeal

[71]     In  Austin  Nichols  &  Co  Inc  v  Stitchting  Lodestar,  the  Supreme  Court reviewed and restated the correct approach to the exercise by appellate Courts of their civil jurisdiction.15  The following principles were reaffirmed:

(a)       The appellant bears the onus of satisfying an  appeal  court that it should differ from the judgment under appeal;16

(b)Only if the appellate court considers that the appeal decision is wrong, is it justified in interfering with it;17

(c)       The  appellate  court  has  the  responsibility  of  arriving  at  its  own assessment on the merits of the case;18

(d)An appellate court is entitled to exercise a degree of caution where the lower court has had the advantage of seeing the witnesses, in cases

where a credibility assessment is necessary;19

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

16 At [4].
17 At [4].
18 At [5].

19 At [13].

(e)      The appellate court is entitled to have regard to the reasons given by the lower court judge, but must ultimately determine what weight, if any, should be given to those reasons;20

[72]     Elias CJ summarised the correct approach as follows:21

Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion is an assessment of fact and degree and entails a value judgment. If the appellate court’s opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ. In such circumstances it is an error for the High Court to defer to the lower Court’s assessment of the acceptability and weight to be accorded to the evidence, rather than forming its own opinion.

[73]     The Supreme Court returned to the topic in its judgment in Kacem v Bashir, also a relocation case.22    In the joint judgment of Blanchard, Tipping and McGrath JJ, the following helpful passage appears:23

[31]      The Court of Appeal discussed the application of the decision of this Court in Austin, Nichols & Co Inc v Stichting Lodestar to the present kind of appeal. The Court correctly observed that on a general appeal of the present kind the appellate court has the responsibility of considering the merits of the case afresh. The weight it gives to the reasoning of the court or courts below is a matter for the appellate court’s assessment. We should add here that if the appellate court admits further evidence, that evidence will necessarily require de novo assessment and consideration of how it affects the correctness of the decision under appeal. The Court of Appeal was right to say that Courtney J had rather overstated the effect of Austin, Nichols when she indicated she should approach the appeal to the High Court “uninfluenced” by the reasoning of the Family Court. The High Court was required to reach its own conclusion, but this did not imply that it should disregard the Family Court’s decision. What, if any, influence the Family Court’s reasoning should have was for the High Court’s assessment.

[32] But, for present purposes, the important point arising from Austin, Nichols is that those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion involves an assessment of fact and degree and entails a value judgment.   In this context a general appeal is to be distinguished from an appeal against a decision made in the exercise of a discretion. In that kind of case the criteria for a successful appeal are stricter: (1) error of law or principle; (2) taking account of irrelevant considerations; (3) failing to take account of a relevant consideration; or (4) the decision is plainly wrong. The

20 At [13].

21 At [16].
22 Kacem v Bashir [2010] NZSC 112, [2010] NZFLR 884.

23 At [31]-[32].

distinction between a general appeal and an appeal from a discretion is not altogether easy to describe in the abstract. But the fact that the case involves factual evaluation and a value judgment does not of itself mean the decision is discretionary. In any event, as the Court of Appeal correctly said, the assessment of what was in the best interests of the children in the present case did not involve an appeal from a discretionary decision. The decision of the High Court was a matter of assessment and judgment not discretion, and so was that of the Family Court.

[74]     I adopt the foregoing principles in reaching my conclusions on this appeal.

General principles

[75]     The starting point in any judicial assessment affecting children in a family context must be ss 4 and 5 of the Act, which respectively provide:

4         Child's welfare and best interests to be paramount

(1)      The welfare and best interests of the child must be the first and paramount consideration—

(a)       in  the  administration  and  application  of  this  Act,  for example, in proceedings under this Act; and

(b)       in any other proceedings involving the guardianship of, or the role of providing day-to-day care for, or contact with, a child.

(2)      The welfare and best interests of the particular child in his or her particular circumstances must be considered.

(3)       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.

(4)       For the purposes of this section, and regardless of a child's age, it must not be presumed that placing the child in the day-to-day care of a particular person will, because of that person's sex, best serve the welfare and best interests of the child.

(5)       In determining what best serves the child's welfare and best interests, a Court or a person must take into account—

(a)       the  principle  that  decisions  affecting  the  child  should  be made   and   implemented   within   a   time   frame   that   is appropriate to the child's sense of time; and

(b)       any of the principles specified in section 5 that are relevant to the welfare and best interests of the particular child in his or her particular circumstances.

(6)       Subsection (5) does not limit section 6 (child's views) or prevent the Court or person from taking into account other matters relevant to the child's welfare and best interests.

(7)      This section does not limit section 83 or subpart 4 of Part 2.

5        Principles relevant to child's welfare and best interests

The principles referred to in section 4(5)(b) are as follows:

(a)       the   child's   parents   and   guardians   should   have   the   primary responsibility, and should be encouraged to agree to their own arrangements, for the child's care, development, and upbringing:

(b)      there should be continuity in arrangements for the child's care, development, and upbringing, and the child's relationships with his or her family, family group, whanau, hapu, or iwi, should be stable and ongoing (in particular, the child should have continuing relationships with both of his or her parents):

(c)       the child's care, development, and upbringing should be facilitated by ongoing consultation and co-operation among and between the child's parents and guardians and all persons exercising the role of providing day-to-day care for, or entitled to have contact with, the child:

(d)       relationships between the child and members of his or her family, family group, whanau, hapu, or iwi should be preserved and strengthened,   and   those   members   should   be   encouraged   to participate in the child's care, development, and upbringing:

(e)       the child's safety must be protected and, in particular, he or she must be  protected  from  all  forms  of  violence  [as  defined  in  section

3(2)to(5) of the Domestic Violence Act 1995] (whether by members

of his or her family, family group, whanau, hapu, or iwi, or by other persons):

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

[76]     A decision as to whether or not there should be a change of residence for a child is a guardianship decision, and so is subject to ss 4 and 5.24   The s 5 principles are to be considered and applied in the light of s 4(1), which provides that the welfare and best interests of the child must be the first and paramount consideration.

[77]     Parental conduct may be relevant, but only to the extent that it bears on the welfare and best interests of the child.25   Each case will be different.  The assessment

24 Care of Children Act 2004, s 16(2)(b).

25 Section 4(3).

must be conducted in the light of all of the family circumstances that are relevant by virtue of ss 4 and 5.26

[78]     The contest in a relocation case was helpfully described in the judgment of

Blanchard, Tipping and McGrath JJ in Kacem v Bashir:27

[23]      At the highest level of generality the competition in a relocation case is likely to be between declining the application for relocation because the children’s interests are best served by promoting stability, continuity and the preservation of certain relationships, as against allowing it on the ground that the interests of the children are thereby better served. Put in that way, it is difficult to see how any presumptive weight can properly be given to either side of those competing but necessarily abstract contentions. To do so would risk begging the very question involved in what is necessarily a fact-specific inquiry.

[24] Everything will depend on an individualised assessment of how the competing contentions should be resolved in the particular circumstances affecting the particular children. If, on an examination of the particular facts of a relocation case, it is found that the present arrangements for the children are settled and working well, that factor will obviously carry weight in the evaluative exercise. All other relevant matters must, of course, be taken into account and given appropriate weight in determining what serves the child’s welfare and best interests, as s 4(5) puts it. The key point is that there is no statutory presumption or policy pointing one way or the other. All this seems to us to follow from ss 4 and 5 of the Act as a matter of conventional statutory interpretation.

[79]     A little later in their judgment, their Honours dealt briefly with a concern that relocation cases tended to lack predictability, particularly in difficult or marginal cases. Their Honours said that was inevitable:28

[35] …As we have seen, the court is not in fact exercising a discretion; it is making an assessment and decision based on an evaluation of the evidence. It is trite but perhaps necessary to say that judges are required to exercise judgment. The difficulties which are said to beset the field are not conceptual or legal difficulties; they are inherent in the nature of the assessments which the courts must make. The judge’s task is to determine and evaluate the facts, considering all relevant s 5 principles and other factors, and then to make a judgment as to what course of action will best reflect the welfare and best interests of the children. While that judgment may be difficult to make on the facts of individual cases, its making is not assisted by imposing a gloss on the statutory scheme.

26 See K v B (2009) 27 FRNZ 417 (HC) at [8] and [25].  K v B was the first instance decision which led to the Supreme Court judgment in Kacem v Bashir.

27 Kacem v Bashir, above n 22, at [23]-[24].

28 At [35].

[80]     By reason of the multifaceted nature of the inquiry, and of the unlimited variety of the facts of individual cases, it is not useful to prescribe a list of factors or matters beyond which the Court ought not to stray.  Any factor may be taken into account, provided that it is properly relevant to the inquiry mandated by ss 4 and 5 of the Act.

[81]     In Carpenter v Armstrong, Heath J listed as matters that might assist the

Court in a given case to make an accurate predictive assessment the following:29

(a)      The identification or development milestones for each child over the next five years, or for as long a period as is possible given the chronological age of the children;

(b)      An identification of each child’s needs over that time if they were to

meet those milestones;

(c)      The  identification  of  the  parent  most  likely  to  meet  those  needs, leaving to one side (at least initially) the country in which that parent will be residing;

(d)The identification of information as to whether the children’s needs can best be met in New Zealand or in the place to which relocation is sought.

(e)      The views of the children, the evidence of an expert psychologist being helpful in determining whether it is feasible to obtain those views.

(f)       The identification of any adverse effects each child is likely to suffer if the parent with day to day care of the children in one country does not actively foster a continuing and good quality relationship with the other in another country who will, of necessity, have limited contact

with them.

29 Carpenter v Armstrong HC Tauranga CIV-2009-470-511, 31 July 2009 at [125].

The Family Court judgment

[82]     At the commencement of her judgment, Judge Fleming identified the single issue in the case before her in the following way:

[4]       The sole issue in this case is whether it is in the best interests of these two children that they remain residing in New Zealand, or return to the United States of America (Oregon) where they lived until they came to New Zealand.  It is an unusual case in that Mr and Ms J are committed to continuing to share the care of their children on an almost equal basis as they agreed to do and have done since their separation in January 2011, whichever country I decide the children should live.  Their attitude is impressive and very much focused on their children and for one of the two parents will require them to live in a country other than where they wish to live and will be at a significant personal cost.  It further demonstrates what is already   acknowledged,   namely   these   parents   are   committed, carrying, competent and loving parents and to that extent what has occurred in the past does not change that conclusion.

[83]     The  Judge  then  discussed  the  intertwined  questions  of  the  reasons  and intentions which persuaded the parties to come to New Zealand to live, and the progress of the developing relationship between Ms J and Mr H.  As to the former issue she said:

[9]       It is difficult to decide whether the move was to be permanent or for a limited, though reasonably lengthy, period of time.   No doubt it was always a possibility if things did not work out in New Zealand they would return to the United States.

[84]     In response to Mr J’s contention that he had been tricked into coming to New Zealand in order that Ms J might pursue her relationship with Mr H, Judge Fleming said:

[17]      I conclude from all the evidence Ms J had a close relationship with Mr H prior to the family moving to New Zealand.   However the evidence is also clear the J’s had already agreed to travel and live in another country a number of years before that time and New Zealand was one of the two major contenders.   Mr J was an enthusiastic participant in the move and agreed to it.  I do not, having regard to all the evidence, consider the developing relationship between Ms J and Mr H was a determining factor in the move to New Zealand or that at the time of the move Ms J had made up her mind that she was leaving Mr J to live with Mr H.

[85]     The Judge then reviewed Mr J’s actions since separation and noted that the relationship between the parties had deteriorated over time since separation.  One of the reasons for that, she found, was that Mr J had unilaterally transferred about US$250,000 of relationship property to the United States and into a trust established there by his parents.   He conceded that Ms J knew nothing about the trust or the payment, and that he himself knew little of the trust except that the funds were now effectively out of his control.  His intention seems to have been to ensure there was a substantial secure fund which might be available to meet the educational and other needs of the children as they grow up.  But there is no guarantee that the funds will be made available by the trustees for that purpose.

[86]     The Judge referred also to the Oregon proceedings commenced by Mr J in February 2011.  She noted that Ms J was understandably anxious about the terms of the orders made in Oregon, and that she might be subject to contempt proceedings there if she returned to the USA, in the event that a step was taken by her in New Zealand which was not in compliance with the terms of the Oregon order.

[87]     Judge Fleming, although accepting that Ms J’s concerns were natural and well  founded,  held  that  upon  analysis,  the  Oregon  proceedings  ought  not  to constitute a barrier to Family Court decision-making.  Mr J instructed his counsel in the Family Court that he would obtain a discharge of the interim care orders made in the Oregon Court, and would cooperate to ensure that any order made in the Family Court was registered in that Court.  He would also cooperate in obtaining orders in the Oregon Court which reflected the orders made in the Family Court.

[88]     Judge Fleming noted that the Oregon proceedings were not binding on the New Zealand Family Court.  Ultimately, she did not regard the Oregon proceedings as impinging in any way on the outcome, or upon the issue which she was required to decide, which she reaffirmed was:30

…whether it is in the children’s best interests to remain living with these two parents in New Zealand or return to live with these two parents in the United States.

30 At [25].

[89]    The Judge then turned to an analysis of the competing arguments and the personal adult factors that lay behind them.  She observed that in each case the arguments tied in with each parent’s own wishes and needs.  That is of course unremarkable.  It is a very rare case in which a parent will promote an outcome at odds with his or her own interests.  She found that Mr J had become unsettled as a result of the separation, that he had no friends in New Zealand, that it was difficult for him to find suitable work, and that in any event remuneration levels here were disappointingly low.   Mr J conceded however that he had not done as much as he might to obtain work, because he hoped to return to the United States and believed that there would be a suitable position available for him with his previous employer there.

[90]     Mr J’s argument was that it would be in the children’s best interests to return to live in the United States where they would have more contact with their extended family, and would be living in their country of birth with all the advantages that offered, including a proper knowledge of their cultural background and heritage.  It is not in dispute that the children’s grandparents and extended family all live in the US.

[91]     Interestingly, while discussing Mr J’s position, Judge Fleming noted that his

evidence was given:31

…at a stage in the hearing when it was not apparent Ms J would return to the United States if the children did.  Later her position was that she would.

[92]     It appears therefore, that the Judge understood in the early stages of the hearing that Ms J would not follow the children if they relocated to the US, but that evidence or argument during the hearing altered her understanding on this pivotal question.   The Judge noted also that Mr J was part Native American, and that his mother in particular retained a connection with that part of the family heritage.  It was part of Mr J’s case that by a return to the United States those cultural links could be fostered.   The Judge noted that Mr J  acknowledged that returning would be

disruptive, but that he believed the disadvantages of upsetting the status quo were

31 At [29].

outweighed  by  the  knowledge  it  would  be  temporary,  and  that  links  with  the

children’s wider family and their American heritage would be strengthened.

[93]     Judge Fleming then turned to an examination of Ms J’s position, observing that it was “curious” that there was no evidence from Mr H. The Judge said:32

It is unknown to me whether he would move to the United States with Ms J if she returns, although it was my impression Ms J believed he would if that was at all possible.

[94]     The Judge noted Ms J’s real concern about the financial disadvantages to her of a return to the US.  Her business in New Zealand was, if not thriving, showing signs of potential.  Prospects in Oregon were not as rosy.  Ms J considered that New Zealand education was superior to that of Oregon and that advantage would be lost if the children left.  Moreover, she considered that grandparents, in particular, could maintain their links with the children by regular visits to New Zealand.  Such visits had already been undertaken more than once.  Ms J was well settled in New Zealand with a strong relationship with Mr H.  She liked New Zealand and the New Zealand lifestyle and said the children were flourishing here.  She would find a return to the United States difficult and stressful at both personal and financial levels.

[95]     Judge Fleming then turned to a consideration of the s 5 principles.   With respect to s 5(a), she said that the initial agreement was that it was best for the family to live in New Zealand on a long term basis even if not permanently.  But there had been a dramatic change in circumstances.  Nevertheless, the parents had been able to agree on the fundamental issue of day to day care, Mr J having the children three days a week and Ms J four.

[96]     Section   5(b)   stresses   the   desirability   of   continuity   and   stability   in arrangements for the children’s care, development and upbringing.  Consistent with her earlier findings, the Judge said that the children would remain in the shared care of their parents no matter which country they lived in.33      Such arrangements as schooling, social activities and friendships, were subsidiary at this stage to the need

to ensure that the bond with each parent was strong and stable.  The Judge held that

32 At [32].

33 At [39].

that was not an issue in this case.  She observed that a return to the United States would facilitate more frequent contact with wider family members and grandparents in particular.   To some extent a move would be destabilising, but for a relatively short period.  But the fact that both parents would be there would minimise the significance of disruption.

[97]     In the same way, the requirement under s 5(c) for on-going consultation and cooperation was unlikely to present problems because both parents would be living in the same country as the children, whatever the outcome of the application.

[98]    Section 5(d) requires the Court to consider the need both to preserve and strengthen relationships between the child and members of his or her wider family. Judge Fleming considered that, although those relationships can at least be preserved in  New  Zealand,  they would  be  more  likely to  be  strengthened  if  the  children returned to the US.

[99]     Section  5(e)  deals  with  the  need  to  protect  children  from  all  forms  of violence.  The Judge noted that there had been some arguments and a confrontation on one occasion, but that s 5(e) was not significantly engaged in this case.

[100]   Finally, in terms of s 5(f) which speaks of the need to preserve and strengthen the child’s identity including his or her culture, language and religious denomination and practice, the Judge said that the children were citizens of the United States and had a varied and rich ancestry, which included Native American Indian.   It was unlikely that that aspect of their heritage would be strengthened if they remained living in New Zealand.  Neither would their identity as United States citizens – “their Americanness” in other words.   By returning, their exposure to their American identity and culture would be enhanced.  If they remained in New Zealand, then over time their background and heritage would dissipate to some degree, she considered.

[101]   The Judge briefly noted that the views of the children as to which country they should live in were not known, and at their age she said she would not expect that they would be in a position to present a view.  Inherent in her approach was her understanding that wherever the family ended up, both parents would be there for the

children, and a natural conclusion for children so young was that they would wish to be with their parents.

[102]   Against that background, the Judge concluded that it was in the best interests of the children that they return to live in the US.  She summarised her reasons in the following way:34

It is in their interests to have parents who are relatively settled, have reasonable financial opportunities to enable them to support the family, good social contacts and support.  For Mr J, his best chance to end up in that position relatively quickly is to return to the United States.  Ms J will no doubt be unhappy initially but she is returning to an environment which is very familiar to her and where she will have friends and family who can support her.  In my view there is a much greater prospect Ms J will be able to be a fully functioning and contented parent in the United States than for Mr J if he remains in New Zealand.

The children will have much more contact with extended family.

There will be many more opportunities for the children to learn and understand their background and identity.

The disruption of the change will be relatively short lived.

[103]   Accordingly, she directed that the children return to the United States to live in the shared care of their parents.  The same care arrangements were to continue; that is they were to spend three days in the care of their father and four in the care of their mother each week, subject to the right of the parties to negotiate a slightly different arrangement involving alternate weekend care.

[104]   The  Judge’s  order  was  subject  to  conditions  requiring  that,  before  the

children returned to live in the United States Mr J must:

(a)       obtain a discharge of the custody order in the Oregon Court;

(b)undertake to do all things necessary to ensure that the Family Court order was registered in the Oregon Court,  and

34 At [53}.

(c)      if  required  by  Ms J  and/or  the  children’s  lawyer,  cooperate  in obtaining orders in the Oregon Court which reflect the orders made in the Family Court.

[105]   Judge Fleming made no formal detailed parenting orders.   They were left over for later resolution.  She subsequently issued a minute directing that there be a further hearing if the parties were unable to agree, but no hearing ever took place because events were overtaken by the filing and prosecution of this appeal.

Appeal grounds

[106]   Mr Knight identified a number of alleged errors in Judge Fleming’s approach which formed the grounds for this appeal.  He advanced his argument under the umbrella of the identified grounds.  Ms Robertson and Ms Elliott did likewise. Some of the appeal grounds raise matters of central importance, others are of negligible significance. Mr Knight argues that Judge Fleming erred in finding that:

(a)      Ms J would follow the children back to the US if the relocation order is made;

(b)      Ms J’s motivation for wanting the children to remain in New Zealand

was tied up in her own wishes and needs;

(c)       The  only  realistic  way  the  children  could  assimilate  their  Native

American heritage would be to live in the United States;

(d)Ms J could operate her business from the United States, and more generally, would be relatively settled and have reasonable financial opportunities to enable her to support the family, and have good social contacts and support;

(e)       The children  will  attend  Catlin Gabel  School,  a private school  in

Portland, if they returned to the United States;

(f)       The   children’s   primary   need   is   to   continue   the   shared   care

arrangement, and their primary attachment was to their parents;

(g)They would have more contact with their extended family if they were to relocate;

(h)      The disruption of the relocation would be relatively short lived;  and

(i)There were greater prospects for Ms J to be a fully functioning and contented parent in the United States, than for Mr J if he were to remain in New Zealand.

[107]   I will consider each of these grounds of appeal in the course of undertaking a s 5 predictive assessment.

The children’s views in this case

[108]   Section 6 of the Act reads:

6        Child's views

(1)      This subsection applies to proceedings involving—

(a)      the guardianship of, or the role of providing day-to-day care for, or contact with, a child; or

(b)      the administration of property belonging to, or held in trust for, a child; or

(c)      the application of the income of property of that kind. (2)   In proceedings to which subsection (1) applies,—

(a)      a child must be given reasonable opportunities to express views on matters affecting the child; and

(b)      any views the child expresses (either directly or through a representative) must be taken into account.

[109]   In delivering the judgment of the full court in C v S, Randerson J said:35

35 C v S [2006] 3 NZLR 420 (HC) at [31](d).

The obligation is to provide reasonable opportunities, which means it may be necessary to provide more than one opportunity for the child to express views.  That may be particularly important where proceedings extend over a substantial time period.  Views expressed reasonable close to the time of hearing are usually essential given the possibility the child’s views may change.  And it may be necessary to provide more than one opportunity to a child to express a view in different contexts or in relation to different people.   Care should be taken, however, not to subject a child to burdensome or repetitive questioning or processes which may have adverse impacts on the child.

[110]   But  once  ascertained,  a  child’s  views  are  not  determinative,  although  of course they must be taken into account in considering what is in the child’s best interests.  To accord the views too much weight would be to fall into error, as Randerson J said in C v S:36

That would run counter to the Court’s wider obligation to assess what the child’s welfare and best interests require (s 3). The obligation to take any such views into account is mandatory, but the section (in contrast to s 23(2) of the Guardianship Act and art 12 of the Convention) is silent as to the weight to be given to the views expressed. It is implicit that the Court retains a discretion to give such weight to the child’s views as it considers appropriate in the circumstances of the case. Despite the omission in the new section to consider the age and maturity of the child (in contrast to s 23(2) of the 1968 Act) the legislature cannot have intended that a Court should not have regard to those factors along with such other considerations as may be relevant to an assessment of the weight to be given to the child’s views.

[111]   In C v S, the Court held that even a four year old child who was intelligent and articulate should have been asked for her views on some aspects of the case, although the Court accepted that not all four year olds would be able to comply.

[112]   In  F v P [relocation], the Court said that the matters in issue in a relocation dispute were likely to be beyond the comprehension of a five year old.  Forming an opinion on the necessary issues would require the weighing up of the advantages of the status quo against the benefits of the move to a place of which the child had no

experience.37

[113]   Mr Knight expressed significant misgivings about the extent of consultation with the children for s 6 purposes during the course of the first three days of the

36 At [31](h).

37 F v P [relocation] (2005) 24 FRNZ 182 at [72].

hearing.    However,  subsequent  to  that,  Ms  Elliott,  saw  each  of  the  children separately, and filed a report dated 29 November 2012 which contained considerable detail about their views and wishes.   She met each of them separately in their bedrooms with the door closed.  As I have noted earlier, both are plainly bright, articulate children who have no difficulty in expressing themselves to adults.  This was by no means the first occasion on which Ms Elliott had seen the children. Indeed, there had been three previous reports from her.

[114]   Having seen the children myself in her company, I am perfectly satisfied that she would have been able to draw from them views that were reasonably accurate. Ms Elliott talked to each child about the advantages and disadvantages of living in both the United States and New Zealand.  V thought that the advantages of living in New  Zealand  were  her  school  friends,  particularly  one  named  friend,  her  nice teachers at school, that her parents’ houses were close to each other, and the environment “ … including big spaces and lots of native birds and animals”.   V could not think of any significant disadvantages to living in New Zealand, except that it was not the United States, but equally, the advantages of the United States were counter-balanced by the absence of things she liked in New Zealand.  She saw the advantages of living in the United States as going to identified fast food outlets, two named friends, going to Disneyland, seeing her family, and in particular her maternal grandparents, paternal grandmother and her cousins, and notably Laura Bish, who had been her nanny both in the United States and New Zealand.  V volunteered as a disadvantage the fact that schooling did not start in the United States until six years of age, but then she realised if she returned there she would be “far ahead” of the other students.  She said she would be “fine” with whatever the Court decided if both of her parents lived in either New Zealand or the United States. She volunteered to Ms Elliott a set of her own possible care arrangement options. Ms Elliott advises the Court that she gave no prior indication to V that both parents might live in the United States.

[115]   In the course of discussing the various options, V said that if she was required to move to the United States with her father, and her mother was not able to go then she would feel sad, and that it would make her feel “that only my daddy cared about me”.  She seemed to be under the impression that she might have to fly on her own

to wherever her non-residential parent was living during her holiday time.  That suggests there had been some degree of prior discussion of the topic with her by one or both parents.

[116]  As might be expected, N was not able to express himself in such detail. Interestingly, he named one of the same fast food outlets in the United States as his sister as a positive aspect of living there.  He also liked a science place that he could not remember the name of, and he enjoyed seeing Grandma Sandy.  In New Zealand, he liked school and his friends there.  He could not think of anything he did not like about living in New Zealand or Oregon.   Mr J was in Oregon for some weeks between the October and December hearings in this Court.  N volunteered that he felt really sad and missed him a lot.  He said he would be sad if he did not see either of his parents for a long time.

[117]   Ms Raethel’s terms of reference included (as set out in paragraph 5(c) of her report of 14 September 2012) the following:

To assess the children’s views regarding:

(1)       Care arrangements and contact arrangements, depending on whether both parents are residing in the same country as the children, or if one parent should reside in another country;

(2)      Their views on extended family;

(3)      Remaining in New Zealand or relocating to the United States.

[118]   She covered this topic in the following way:

(i)       Care  arrangements  and  contact  arrangements,  depending  on whether both parents are residing in the same country as the children, or if one parent should reside in another country

[30]      The children were interviewed on two separate occasions.   At the time of the first interview the writer understood that the issues of any form of change to their day to day care, including returning to the United States had not been discussed with the children by either of the parents.  It was also believed that the possibility of one or other parent leaving the country had not been discussed with the children. It became clear during these interviews however, that the children did indeed have varying levels of understanding about current proposals under discussion.

[31]      It would have been surprising if they had not, as there had been on- going matters before the court due to on-going exposure to a number of issues in two separate households over the past two years.  In the first interview N told the writer that he was returning to the United States with his father and that his father had told him that.   Mr J agreed that the children may have some knowledge that eventually they might return to the United States but no time frame.  A second interview with the children was held to put more specific issues to the children in a hypothetical framework.   In this interview V said she  would  do  anything  that  made  her  parents  happy.    She  only wanted them to be happy wherever they lived.  She said that if her father returned to the United States without them they could Skype and write letters and phone.  She thought that she could return to the United States at least once a year and that if her mother didn’t go she would send them on the plane with a very close and trusted friend. This suggests some discussion of this scenario.

[32]      N thought the issue was “A tricky one”.  He would have to live with one parent and visit the other.   He thought he would want to live with  his  father  and  visit  his  mother.    As  noted  this  had  been discussed with his father.

(ii)      Their views on extended family

[33]      V listed a number of families with whom they had contact within the United States.  These were predominantly extended family.  She thought that they could have contact with them by Skype and phone and that they would probably see them on visits from time to time. Some had already visited them in New Zealand.

[34]      In the second interview she listed ways of contacting people who did not live close by.  She listed Skype, phone calls, e-mails and letters. She said she wrote ”heaps of letters”.  V said that they spoke to Grandma Sawyer at least once a week on Skype.  Grandma Sawyer talked to them about her friends and about their grandfather who had recently died of cancer.  She told them how lonely she was living in a big house all by herself and wished they could come and see her.

(iii)     Remaining in New Zealand or relocating to the United States

[35]      V wished to be in New Zealand in the first interview but in the United States in the second interview.  She said there were so many wonderful places to go to in the United States.  When asked what would be some of the places she would like to visit she could not name any.

[36]      N wished to go to the United States, and specifically Oklahoma to see his friends again.  He said that “dad decided it” but didn’t think mum wanted to go.   “Mum is happy in New Zealand”.  He wants to see Grandma Sandy and hopes “she doesn’t die”.

[119]   Ms Raethel was also asked to advise on the factors which should be taken into account in assessing the weight to be accorded the children’s views.   On this topic she said:

[37]      Factors  to  be  taken  into  account  in  assessing  the  weight  to  be accorded the children’s views include their relatively young age, their direct current and past experiences with respect to the issues at hand, the influence of parents and extended family members upon their views, their knowledge and experience of current issues, the experience of a relatively recent separation of their parents.

[38]      The weight to be given to the children’s wishes is strongly affected by their limited ability to conceive issues of time and concepts of consequences of their wishes.    The influence of others upon their wishes was markedly more evident in the second interview than the first, suggesting that there are competing influences now impinging upon them and they are becoming confused and somewhat distressed by any form of responsibility for influencing outcomes.

[39]      These children are young to be interviewed in this context. Whilst at seven years of age V can manage this more easily, N at five years of age, struggles.  It is not possible to put a great deal of weight upon the children’s views due to the influence upon them and their relatively young age and level of maturity.

[120]   In the summary section of her report, she added the following observations:

[55]      The children’s understanding of much of the material discussed with them and their level of understanding is linked to their age and conceptual development, particularly in terms of time and distance. N is less able to envisage matters in these terms but despite V’s more advanced intellectual development she is also constrained by age and conceptual development in envisaging the effects upon her of future events.

[56]      It is the writer’s opinion that the long protracted period between the court cases that the parents have been involved in has been stressful for both of them, as has the actual separation.  It appears clear that the changed circumstances and uncertainty have also impacted upon the children and is continuing to increase in intensity.  Both parents have suffered depression and both are seeing counsellors.

[57]      It is inevitable that the children have become aware of the issues and each parent has made some contribution to this knowledge.  Whilst this report focuses upon the children’s views these are not formed in isolation of a number of factors and varying degrees of influence. For this reason the children’s views need to be weighed against their needs for meaningful contact with both parents.    On-going discussions in a vacuum of clear plans undermine their feelings of security.  These factors need to be considered when placing any weight upon the expressed wishes of the children.

[58]      Repeated interviewing of children can confuse the child and lead them to believe that the first answers they gave were not correct and change their minds accordingly.  Interviewing which takes place in changing circumstances may not reflect the children’s views accurately at a time shortly after the previous interview.  Parental discussions with the children about the interview experience and asking them what they said may also influence future responses.

[121]   Ms  Raethel  and  Ms  Elliott  have  each  spent  considerable  time  with  the children and have been able to glean from them a great deal about their thoughts and feelings as to their relationships with each parent, and about the advantages and disadvantages of living in both countries.

[122]   I accept Ms Raethel’s evidence that some care must be exercised in assessing the weight to be attached to what the children had said over time.  At various stages they have expressed apparently conflicting views.  That is not surprising, given the stress they must be under, and their natural strong attachments to each parent.

[123]   It is plain enough however, that Judge Fleming was perfectly correct when she held that the primary attachment of these children was to their parents and not to any particular geographical location. Beyond that, it is difficult to discern anything about the children’s expressed views that assists in the necessary assessment.  I am satisfied however that the requirements of s 6(2)(a) of the Act have been amply complied with.

Section 133 report

[124]   Ms Raethel has been in practice as a clinical psychologist for more than 40 years.  She is immensely experienced in forensic work, having provided specialist psychological reports for the Family Court since its inception in 1981, and reports and evidence in all of New Zealand’s principal trial courts.   She was asked to consider a number of topics, the first of which was the nature of the children’s relationship with each parent.  She noted that the children spend roughly equal time with each parent, and there was nothing to suggest they did not have a good relationship with both of them.   Although some parenting practices differed, each had a solid background of good attachment to the children from an early age.  Ms Raethel noted that each child took great care during her interviews to treat each

parent  equally.    Both  parents  foster  and  facilitate  a  range  of  extra-curricular activities.

[125]   The children evinced some concern about Mr J being alone when they were not there.  Naturally enough, they were greatly saddened by the separation.  N did not like driving between the houses, presumably because the drive provided a constant reminder of the breakdown of the marriage.  He appeared to be somewhat more closely aligned with Mr J.

[162]   There was a sharp divergence between counsel on this point.   Mr Knight submits that it was for Mr J to produce a coherent and detailed plan in the Family Court, and that he failed to do so.  The Judge ought to have taken that failure into account.  On the other hand, Ms Robertson and Ms Elliott point out that no objection was taken in the Family Court to the absence of a detailed plan, and that it ought not to  be  raised  now.    Moreover,  Ms  Elliott  submits,  it  is  impractical  to  require significant detail because much would depend upon whether and when Ms J moved to the United States, where a house or houses could be obtained, and what suitable schools were within appropriate geographical range.   Further, there seemed to be some tentative agreement that Catlin Gabel School might be appropriate.

[163]   As to childcare for the children while Mr J was at work, that is a matter which, in my view, would need to await a decision as matters developed.  During the period up to their relocation to New Zealand, the parties had employed a full time nanny, Laura Bish.  She accompanied them to New Zealand and remained working for Mr J after separation until November 2011.   It would not be inappropriate to draw the inference that similar child care arrangements would be necessary in Oregon.

[164]   Mr J did not produce a parenting plan prior to the hearing in the Family Court, but was cross-examined on some aspects of a possible plan.  Each party produced parenting plans not long before the appeal hearing.  As both Ms Robertson and Ms Elliott submit, there is no proper basis for reversing the Family Court judgment simply because Mr J did not produce a formal parenting plan at the Family Court hearing.  Neither is the absence of a plan entitled to significant weight in the overall assessment.

Section 5(c)

[165]   Section  5(c)  requires  parents  and  guardians  to  consult  and  co-operate  in

respect of a child’s care, development and upbringing.

[166]   Mr Knight submits that consultation and cooperation have presented their difficulties in the past. As examples he cites a difficulty over N’s start date at school, another over the timing of a visit by the children’s maternal grandparents, the alleged appropriation by Mr J of relationship property and its payment into a trust fund, and certain procedural steps taken by the respondent both in Oregon and in the Family Court here.

[167]   Although in many respects Mr J has co-operated with Ms J in relation to the children’s welfare, there have been times when he has engaged in what amounts to adversarial tactics.  His decision to pay $250,000 of relationship property into a trust fund without consulting Ms J was, to say the least, high handed.  Moreover, there has been no real explanation for his decision to resort to the Oregon Courts when he knew the New Zealand Family Court was already seized of issues relating to the children, and the Oregon Court could not bind the Family Court here..

[168]   On a superficial level, and in relation to the children’s day to day care, the parties are (for the most part) co-operating adequately.  Each accepts that the other is a generally good parent.  However, there is an underlying level of animosity between the parties.   This raises doubts as to whether either party (and particularly Mr J) having day to day care would adequately foster the relationship of the children with

the absent parent if the parents were living in different countries.   I return to this point below.

Section 5(d)

[169]   Section 5(d) requires the Court to have regard to the desirability of preserving and strengthening relationships between a child and members of his or her wider family who should be encouraged to participate in the child’s care, development and upbringing.

Contact with extended family

[170]   Judge Fleming held that if the children were relocated to the United States they  would  have  much  more  contact  with  their  extended  family.42      Mr  Knight submits there was insufficient evidence to justify that finding.  The closest relative is an aunt who lives about one and a half hours away from the area in which the children would be likely to live upon return.  Both set of grandparents are about four hours away by car and are about 45 minutes apart.  The evidence is that the children

might see one or more of the grandparents about once every two months over a long weekend or during holiday times.   Contact by Skype would also be maintained. There was some evidence also that, at times, one or more members of the extended family would visit the children at their home. Ms J’s stepmother gave evidence that there was a long period when she was in Portland every two weeks and visited the children for two to three days on those occasions

[171]   The grandparents have visited New Zealand more than once over the last two years or so.   Ms J’s stepmother says that more quality time was available here because her interaction with the children was more focused and not subject to so many other influences.

[172]   However, in my view, Judge Fleming’s finding was well justified.   Where most of the children’s extended family was available within a four hour drive in the

United States, it is difficult to sustain an argument that greater opportunities are

42 At [53].

available in New Zealand, which is a 13 hour flight away from Los Angeles or San

Francisco. This is one of the strongest factors in favour of dismissing the appeal.

[173]   It is appropriate to mention also the children’s relationship with Mr H.  It is plainly positive and beneficial for them.  It seems likely that that relationship would be lost if the children moved to the United States.  Having said that, I accept that their relationships with their blood relatives, and in particular their grandparents, are to be accorded greater weight than their relatively recent relationship with Mr H.

Section 5(e)

[174]   Section 5(e) requires the Court to have regard to the need to protect the safety of the children.   It is common ground that there are no relevant issues under this head.

Section 5(f)

[175]   Finally   s   5(f)   requires   the   Court   to   facilitate   the   preservation   and strengthening  of  the  children’s  identity  including  without  limitation  matters  of culture, language, and religious denomination and practice.

[176]   On this topic, the Judge said:43

[47]      These two children are citizens of the United States and have a varied and rich ancestry which includes Native American Indian.   It is unlikely the Native American Indian heritage would be strengthened if the children remain living in New Zealand and the same is true of their identity as United States citizens.  The reason is obvious – those two aspects of their identity and culture are inherently derived from their country of origin and their exposure to that identity and culture would necessarily be limited in New Zealand in comparison with the United States.

[48]     I accept it may be possible to preserve the children’s identity and culture in New Zealand, particularly since their parents are American. However, it is also possible it will not be preserved in circumstances where these children are young and will invariably form attachments to New Zealand society and assimilate New Zealand culture.

43 At [47] and [48].

[177]   Mr Knight submits that there is no proper basis for the Judge’s findings.  He identified evidence that suggested that the children’s Native American roots were in Oklahoma, several hours away from Oregon by air.   Moreover, there was no suggestion that it be intended to immerse the children in their Native American culture, which could just as easily be learned and experienced from New Zealand. To the extent that it was thought appropriate, attendance at Native American ceremonies such as powwows and so forth, could be incorporated into holidays in the United States.

[178]  The children’s heritage is multi-faceted.  It appears that they have only a one/sixty-fourth   proportion of Native American blood.   They have other cultural connections, including Lebanese and Scottish forebears.   They have not been introduced to aspects of their North American Indian heritage until the last year or two.   Ms J says that prior to their separation, no attention at all was paid to this aspect of the children’s background.  In my opinion they can pursue their North American Indian connection to a significant degree from New Zealand. It is not claimed that the Portland area offers any particular advantage. The details of the potential financial benefits (such as scholarships) are vague.

[179]   I would not place any great weight on the need to foster the children’s North American Indian links, not because I consider it to be of little account, but because there seem to be no particular advantages in doing so from Portland rather than New Zealand.

[180]   In terms of the children’s wider American heritage, while there is no doubt that some element of dilution would occur, as is always the case when people are exposed to other cultures for any length of time, American culture is globally pervasive.  This is not a minority culture which must be carefully nurtured and fostered.   Moreover, Ms J says that both she and Mr J pay careful attention to the need to observe the high points of the American year, such as Independence Day and Thanksgiving.  Even if the children remain in New Zealand, they are likely to enjoy regular visits to the United States where their American ties will be refreshed.

[181] In my view there is little risk that their American heritage would be significantly diluted over time, although I accept that their links with American culture may not be strengthened to the same degree as if they were actually living in the United States.

Other relevant matters

Ms J’s wishes and needs

[182]   Judge Fleming observed that:

[26]      Inevitably Mr J’s motivations for wanting the children to return to live in the United States are also tied in with his own wishes and needs, just as is the situation with Ms J.

[183]   Mr Knight attacks this finding insofar as it bears on Ms J’s motives.  But it is difficult to discern any material error in the Judge’s finding.  As I noted earlier, in almost every relocation case parental decision-making will be guided to some extent by the personal wishes and agendas of the competing parties.  It is unrealistic to suggest as Mr Knight does, that the Judge was materially wrong in circumstances where Ms J places at the forefront of her argument her financial situation and her relationship with Mr H.

[184]   Having said that, I accept, as Mr Knight submits, that Ms J is entitled to have the Court consider her view that New Zealand is a better place to raise children.  In that respect, Mr Knight refers to her evidence about the relative advantages in New Zealand of educational opportunities, playground quality, adult attitudes to children, medical care, values, and an emphasis on outdoor pursuits rather than consumerism.

Running Ms J’s business from the United States

[185]   Judge Fleming observed that:44

44 At [32].

… it seemed as if her business could also be operated from the United States. There would undoubtedly be a financial cost and a disruption to the business were she to move back to the United States.

[186]   Mr Knight submits that there was insufficient evidence to justify that finding. Ms J had given evidence that her New Zealand company was set up specifically for the South Pacific region, and while she could temporarily work from the United States, it would be difficult to do so long term.

[187]   The overall thrust of Ms J’s evidence was that she maintains businesses in both the United States and New Zealand.  The latter business shows some potential. She was continuing to develop business out of the United States and was getting work from US based companies doing business in Australasia.  She accepted that her existing United States business remained in operation, and that she was responsible for the financial management component of it.  Her evidence was that there were two employees in the United States and the business only really met outgoings at this time.

[188]   Over all, the evidence is somewhat diffuse.  Ms J is obviously a woman of considerable intelligence, ability and energy.  In just two years or so, she has made considerable progress in building up the New Zealand business, while maintaining the  United  States  company  at  an  operational  level  sufficient  to  justify  two employees. There is some synergy between the two companies.  I consider the Judge was entitled to conclude that Ms J would be able to undertake her business activities in the United States, even though she might find it necessary in the first instance to find paid employment.  This is not a case in which the well being of the children is likely to be substantially affected in financial terms, by reason of Ms J’s relocation from New Zealand to the United States.  Mr J says he will be better off financially if he relocates, though it seems unlikely that he would encounter significant difficulties in finding suitable employment in New Zealand in the medium to long term.

Schooling

[189]   This ground of appeal rests upon the contention that Judge Fleming was wrong in finding that, if the children returned to the United States, they would be

educated at a private school, namely Catlin Gabel School.   Mr Knight claims that there has been no agreement between the parties about where the children would go to school if they return to the United States, and no agreement as to how private schooling would be funded.   Although Mr J believes that costs at that school are between US$20,000 and US$25,000 per year per child, and would initially be met from the trust, there has been no explanation of the way in which education would be funded beyond about fourth grade.

[190]   There is little merit in this ground of appeal.  Ms J agreed in evidence that if the children did return to Portland, then Catlin Gabel was the most likely school. But which school the children would attend is not a central issue in this case. Schooling issues plainly did not form part of the foundation for Judge Fleming’s ultimate decision.   In passing, I note that Duffy J commented in her judgment of

13 August 2012 that the issue of the children’s relocation did not hinge on them

attending any particular school.45

Children’s primary need

[191]   It is submitted for Ms J that the Judge was in error in finding that the primary need of the children was to continue the current shared care arrangement, and while they appeared to enjoy their life in New Zealand, their primary attachment was to the parents rather than New Zealand.46

[192]  As to the shared care arrangement, it is beyond dispute that the children’s primary need is indeed for a continuation of the arrangement that sees them spend roughly half of the time with each parent.  Their apparent enjoyment of life in New Zealand is of less significance.   Neither is it seriously arguable that they have a

greater attachment to New Zealand than to their parents.

45 At [28].

46 At [50].

The parties’ situation in the United States

[193]   Mr Knight advanced a number of arguments as to the relative position of the parties if they returned to the United States:

(a)       The Judge was in error regarding the appellant’s business prospects in

the United States. This issue has been discussed above;

(b)There  was  no  evidence  in  relation  to  her  support  network  in  the United States apart from her parents, who live four hours away from where she would have to live in order to be near the children;

(c)      It was likely that the mainstay of her New Zealand support network, Mr H, would be unlikely to emigrate to the United States.  This issue has also been discussed above;

(d)      There is no evidence as to what, if any, friends the appellant has left in

Oregon;

(e)      Mr J’s unhappiness stemmed largely from his separation from Ms J, which would be a constant factor regardless of which country he lived in;

(f)       His employment situation in New Zealand was of his own making, because he had purposely not endeavoured to obtain work in recent times;

(g)Psychologically, Ms J would be much worse off in the United States even if she did move, because a return there would be contrary to her desire for the better life which she believes she and the children could have  in  New  Zealand.     She  would  also  be  likely  to  lose  her relationship with Mr H; and

(h)In more general terms, Judge Fleming ought not to have made her assessment of the impact of a return to the United States without psychological evidence.

[194]   In my view, these arguments need to be considered with some care.   If an order is made, the children will return to Oregon, which is where the parties were born  and  raised.    Ms J’s  wider  family  resides  there.    There  is  evidence  she maintained numerous social relationships with friends, including former university colleagues and acquaintances.  She says that she had friends among the parents of children with whom her children were associated at preschool level.   The overall tenor of her evidence is that she is gregarious and able to make friendships relatively easily.  That is consistent with the entrepreneurial nature of her business activities. Ms J’s stepmother gave evidence that all of the adults she met when visiting the parties were friends of Ms J.  But there is no direct evidence that she has maintained her network of American friends from a distance.

[195]   She also has the support of her current partner, Mr H.   I agree with Judge Fleming that it is curious that he chose not to give evidence.  All the Court has is Ms J’s statement of her belief that he may not accompany her to the United States if she returns there.  But that must be an open question.  The Court is told that they have a stable, committed relationship. It would undoubtedly be extremely difficult for her to leave him in New Zealand.

[196]   The Judge found that Ms J would be a rather more fully functioning and contented parent in the United States than would the respondent in New Zealand.  I take a somewhat different view from Judge Fleming.  I think she is likely to be at least equally badly affected in that it is highly likely that her New Zealand business would suffer adverse repercussions and that, her relationship with Mr H would, at the very least, be endangered.  I accept that she would be by no means alone in the United States but I consider that she would be significantly unhappy there for a substantial time.

[197]   I would not accord the same weight as did Judge Fleming to the consideration that a return to the United States would at least enable Ms J to turn to family and

friends there for support. Although family would no doubt be of assistance, it is now several years since the parties left, and there is little evidence to suggest that she would have a significant support network ready and waiting there.   It would take time for her to re-establish herself in Portland.

[198]   For Mr J on the other hand, the refusal of a relocation order would require him to pick up the threads of his life in New Zealand afresh.  To some considerable degree it seems as if he has been marking time, pending the ultimate outcome of these proceedings.

[199]   In the end I think that the impact of an adverse outcome on the unsuccessful party would be fairly similar.  Each would be extremely disappointed.  But over time he or she would need simply to make the best of it.

Parental health

[200]   In the Family Court, there was no expert psychological evidence about Ms J’s state of health.  In this court, in the circumstances outlined earlier, Dr Page provided a brief report upon which she was cross-examined.  But her brief was limited, and she was  obliged  to  work  simply from  the  request  of Ms J’s  instructing  general practitioner  together  with  information  supplied  by  Ms J  herself.    The  thrust  of Dr Page’s  evidence  was  that  Ms J’s  symptoms  were  consistent  with  clinical depression that were referable, at least in part, to the on-going litigation, including the impact of the adverse Family Court judgment in June 2012.  Dr Page indicated that by August 2012 Ms J seemed to be improving.

[201]   Parental health can be a legitimate consideration where it impacts on the well being and the best interests of the children.47     It may be considered, along with all the other evidence, in reaching a determination of what is in a child’s best interests

and welfare.

47 Stadniczenko v Stadniczenko [1995] NZFLR 493 (CA); D v S [2002] NZFLR 116 (CA) and (2001)

21 FRNZ 331(CA).

[202]   I have held that although Ms J’s depression is genuine, it is in large part generated by the stress and uncertainty of the present litigation and seems under control.  It is therefore not a major factor, and is unlikely to impact on the welfare of the children should she move to the United States.  To be fair to Ms J, her case was not run in that way.  Rather, her health was relied upon as one of a number of factors to be taken into account in the overall assessment.

[203]   I note also that there is some limited evidence to the effect that Mr J has also been depressed, although there is no medical evidence about that.   Since the separation he has found it difficult to make a new life.   He has established only limited relationships with others and partly it seems by design, has limited the extent to which he has expanded his business connections.  No doubt his hope is that the Court will facilitate a return to the United States where he can begin a new chapter of his life, and for that reason he has recently done little to establish his life here.  To his credit, as earlier noted, he has made it quite clear that if the appeal succeeds he will remain in New Zealand so that the children will have a father who is there for them.  But it will be at some cost, at least for a time, to his personal and financial well being.

[204]   I  conclude  that  the  mental  and  emotional  health  of  the  parties  is  not  a significant issue in the overall assessment.

What if Ms J is parted from the children?

[205]   If the appeal fails, there is a limited but not negligible possibility that Ms J might nevertheless choose to remain in New Zealand.  Given that possibility, it is relevant to consider the extent to which Mr J, having the principal day to day care of the children, would foster their links and relationship with their mother. The routines of shared care appear to have been observed to date fairly and diligently by both parties, albeit with the odd hiccup.  But if Mr J and the children were in the United States and Ms J was in New Zealand, shared parenting would not be possible.   In those circumstances, it is well established that the Court is entitled to consider the extent to which the parent with day to day care of the children would foster the relationship with the absent parent.

[206]   The evidence suggests that the relationship between Ms J on the one hand and Mr J’s family in the United States is not especially good, so there would be little help from that quarter.  Mr J has also engaged in the adversarial behaviour described above.  Such actions do not instil any particular confidence as to Mr J’s willingness or ability to foster the relationship between the children and Ms J if she were to remain in New Zealand when the children had returned to the United States.  Mr J responded with some vigour to Ms J’s sudden departure from the marriage in favour of a relationship with Mr H.   He unilaterally appropriated and sent to the United States a large proposition of the relationship property.   And he commenced proceedings in Oregon when the parties had been residing here and the New Zealand Family Court was already seized of family issues.   It is a proper inference that an element of bitterness remains.  If he was in the United States with the children and she was in New Zealand, it is difficult to accept that Mr J would place primary emphasis on the continuing relationship between the children and their mother.

Conclusion

[207]  Having weighed all the evidence, the relevant s 5 principles, and counsels’ submissions, I have reached the view that the best interests and welfare of the children would be served by allowing the appeal and quashing the relocation orders made in the Family Court.  I summarise my reasons as follows:

(a)      Judge   Fleming   undertook   her   assessment   in   the   light   of   her understanding that there was effective agreement by the end of the hearing before her that Ms J would follow the children if there was a relocation  order.    It  seems  clear now that  Ms J  did not  intend  to convey any such concession or agreement.  It is however, a proper inference in my view that, very much against her will, she would return to the United States if the children left New Zealand pursuant to a relocation order, though at a significant personal and financial cost to her.  But there is a limited possibility that she would not.

(b)If the appeal succeeds Mr J will remain in New Zealand, but again at some emotional and financial cost.   Neither party contends that an

adverse outcome would so seriously impact upon his or her physical or mental health, to the point that there would be consequences for the welfare and best interests of the children.   In consequence of the appeal succeeding, I consider that Mr J will be no worse off in New Zealand than would Ms J in the United States if the appeal had failed.

(c)      The children’s primary need is to continue the present shared care arrangements.   Their primary attachment is to their parents, rather than to any particular locale.  Given my conclusion that both parents would seek to live in the same country as the children, the shared care arrangement will not be in jeopardy whichever country the children end up residing in.  The question then becomes which country would best serve the children’s best interests in the light of the s 5 principles.

(d)In my view, the children’s needs over the next few years can be met adequately both in New Zealand and the United States, although it seems on the evidence that an equivalent or better education can be obtained here rather more cheaply than would be the case in Oregon. New Zealand confers a number of lifestyle advantages, although I heard little or no argument about the extent to which Oregon can or cannot provide a similarly positive environment.

(e)      It  is  significant  that  both  parties  jointly  agreed  to  come  to  New Zealand, at least for the earlier part of the children’s lives, on the basis that it would provide a better life than they had in Oregon.  This lends credence  to  Ms J’s  argument  that  the  parties  considered  that  an upbringing in New Zealand would best serve the children’s interests. Nothing has occurred to suggest that this has changed, even though Mr J is understandably upset at the breakdown of his marriage, and wishes to return to more familiar surroundings.  The children are flourishing in New Zealand.   There are indications that Mr J could flourish too if he chose to put down roots here.

(f)       While  I  do  not  accord  the  status  quo  any  special  weight  in  the predictive assessment, relocation would undoubtedly result in substantial disruption to the children’s social, familial and educational routines for a time.

(g)While the parties have co-operated adequately on a superficial level, their   underlying   relationship   at   this   point   is   to   some   degree adversarial.   There is a risk that Ms J may not return to the United States, if the appeal failed.  Should this occur, I have serious doubts as to Mr J’s willingness to foster the children’s relationship with her.

(h)I do not consider cultural and heritage issues to be of very significant weight.    The  children’s  Native  American  connection  will  not  be greatly prejudiced by living in New Zealand.   It is only one part of their cultural background – other aspects include Lebanese heritage from  Ms J’s  side.    Their  more  general American  heritage  can  be preserved even if they are not living in the United States, given its overall strength and pervasiveness.  But I accept that their American links may not be strengthened as they would in the United States.

(i)I do not underestimate the disadvantage inherent in the children living at a distance from their extended family, and in particular, their grandparents.   However, the children have been able to maintain contact by other means.   Their grandparents can also made trips to New Zealand, as has already occurred.   And as the children grow older, trips by them to the United States become easier.

[208]   No party bears an onus of proof in respect of an application for a relocation order.   In the end, what is required is an evaluative assessment by the Judge. Whatever the result, one parent will be unhappy, even dismayed.  That is the natural outcome of most relocation cases.  I am satisfied that the welfare and best interests of the children will be served if they stay in New Zealand, rather than return to the United States.

Result

[209]   The appeal is allowed and the relocation orders made in the Family Court are quashed.   I turn now to the question of parenting orders.

Parenting orders

[210]  Ms Elliott for the children has suggested two alternative parenting order options.    Ms J  favours  the  first  of  them.    I  do  not  understand  Mr J  to  have commented directly on the arrangements which ought to be made if the children stay in New Zealand.

[211]   The option proposed by Ms Elliott, and favoured by Ms J, implements a regime which I understand to have been in the minds of the parties, although never carried into effect.  It seems to me to have the virtue of enabling both Mr J and Ms J to have the children for extended periods of time (five day blocks) while at the same time ensuring that each party would have the children on alternate weekends.  The only irregularity seems to be that Ms J would have the children every Monday and Tuesday,  and  Mr J  every Wednesday and Thursday.    But  I am  unaware of any particular objection to that.

[212]   There will accordingly be parenting orders as follows: (a)     Week one:

(i)       Monday and Tuesday with Ms J;

(ii)      Wednesday and Thursday with Mr J; (iii)         Friday, Saturday and Sunday with Ms J.

(b)      Week Two:

(i)       Monday and Tuesday with Ms J;

(ii)      Wednesday, Thursday, Friday, Saturday and Sunday with Mr J.

[213]   Changeovers are to occur after school during the week, and at 5 pm on

Sundays.

[214]   Hitherto the parties appear to have been able to make their own arrangements for the sharing of important days during the year as appropriate.  Those days will include Christmas Eve to Boxing Day inclusive, birthdays, Mother’s Day, Father’s Day, Thanksgiving and Independence Day.  It appears not to be necessary to make formal orders with respect to those occasions.

[215]   Application  may  be  made  to  the  Family  Court  if  agreement  cannot  be achieved at any particular time.

[216]   Neither have I made provision for the eventuality that Mr J might return to the United States for an extended period.  In those circumstances, should agreement not be reached, then again application should be made to the Family Court for amended parenting orders.

Costs

[217]  At the request of counsel, costs are reserved.  Memoranda may be filed if agreement cannot be achieved.

C J Allan J