Thorpe v Barrett
[2015] NZHC 3344
•21 December 2015
NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO
11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE
THE-FAMILY-COURT/LEGISLATION/RESTRICTION-ON-PUBLISHING- JUDGMENTS
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2015-404-001256 [2015] NZHC 3344
UNDER the Care of Children Act 2004 IN THE MATTER OF
an appeal against a decision of the Family
Court at Auckland dated 12 May 2015BETWEEN
THORPE Appellant
AND
BARRETT Respondent
Hearing: 2 December 2015 Appearances:
A E Ashmore for Appellant
Respondent in person
L J Kearns for ChildrenJudgment:
21 December 2015
JUDGMENT OF COURTNEY J
This judgment was delivered by Justice Courtney on 21 December 2015 at 4.30 pm
pursuant to R 11.5 of the High Court Rules
Registrar / Deputy Registrar
Date……………………….
THORPE v BARRETT [2015] NZHC 3344 [21 December 2015]
Introduction
[1] This appeal concerns the day-to-day care of C, aged 12, and her brother, J, aged 10. They have lived in Auckland all their lives. Until February 2014 they were in the day-to-day care of their mother, Ms Thorpe, and had regular contact with their father, Mr Barrett.1 In 2013 Ms Thorpe applied to vary the existing parenting orders so that she could return to her home city in the South Island with the children.2 In early 2014, before the application had been determined, she moved to the South
Island alone, leaving the children in Mr Barrett’s full-time care. Judge Pidwell subsequently refused Ms Thorpe’s application.3 Ms Thorpe appealed.
[2] Shortly after the hearing I gave judgment allowing the appeal and indicating that I would give reasons later.4
[3] The grounds of appeal (though not in the order presented in argument) were that the Judge erred in:
(a) placing undue weight on Ms Thorpe’s reasons for moving to the South
Island;
(b) failing to take the children’s views into account;
(c) drawing conclusions that were not available on the evidence.
[4] The appeal was a general appeal to be determined in accordance with the Supreme Court’s statement of principle in Austin, Nichols & Co Inc v Stichting Lodestar.5 It was for Ms Thorpe to show that Judge Pidwell’s decision was wrong. If that was shown it was for me to reach my own conclusion, placing the weight I
consider appropriate on the first instance decision. In this regard, I note that Judge
1 The names used are anonymised.
2 I have not named the city for ease of compliance with the statutory suppression order.
3 T v B [2015] NZFC 3374.
4 NRT v RB [2015] NZHC 3053.
5 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 confirmed in the context of Care of Children Act 2004 applications in Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [32].
Pidwell had the benefit of hearing evidence from Ms Thorpe, Mr Barrett and other witnesses.
[5] Mr Barrett appeared for himself but provided comprehensive written submissions prepared with the assistance of his lawyer and also made oral submissions.
History of the children’s care arrangements
[6] Ms Thorpe and Mr Barrett were in a relationship from 1998 until 2006. During that time they separated twice for varying periods. From the time of the children’s births until the final separation Ms Thorpe provided the day-to-day care for them. Up until that point Mr Barrett’s involvement with the children had been very limited, to the extent that he had not had the children alone overnight more than a few times.
[7] In 2007 Ms Thorpe acted on her desire to move back to the South Island where her wider family lived, taking the children with her. The Family Court made an order requiring the children to be returned to Auckland, which she complied with by relocating back to Auckland. Parenting orders were made under which the children remained in Ms Thorpe’s care, with Mr Barrett having contact every other weekend and regularly during the week. In 2009 the Family Court refused an application by Ms Thorpe to re-locate to the South Island with the children. Care arrangements continued in a similar way, though Mr Barrett’s contact with the children was somewhat increased.
[8] The dynamics between Ms Thorpe and Mr Barrett were always, and continued to be, difficult, particularly regarding financial support. Ms Thorpe retrained and worked part-time as a childcare worker but found it hard to make ends meet. She also found it difficult to sustain herself emotionally and socially in Auckland. She keenly felt the lack of family support. Eventually, Ms Thorpe resolved to return to her home city and applied to vary the parenting order to allow her to move there with the children.
[9] Ms Thorpe discussed her wish to move with Mr Barrett. She formed the impression that he accepted that course. She put her house on the market and went to the South Island with the children for Christmas, leaving them there with her parents while she returned in January to see out her work commitments. She accepted an offer on her house. When the children came to Auckland in February
2014 they were not enrolled in school because Ms Thorpe anticipated that she and they would be returning permanently to the South Island.
[10] Ms Thorpe’s understanding of Mr Barrett’s position was wrong. He did not agree to the children moving. Having sold her house and left her job, Ms Thorpe elected to move alone, leaving the children in Mr Barrett’s care pending determination of the application to vary the parenting order. This was a distressing time for all involved. Since then the children have lived with Mr Barrett and had contact with Ms Thorpe during the holidays.
The Family Court decision
[11] The application fell to be determined in accordance with the principles set out at ss 4, 5 and 6 of the Care of Children Act 2004 (CoCA). Section 4 requires that the first and paramount consideration be the welfare and best interests of the children in their particular circumstances. Section 5 sets out specific principles to be taken into account and s 6 requires that a child be given the opportunity to express his or her views and that those views be taken into account.
[12] Judge Pidwell referred to all of these principles, identifying those in s 5(c) (ongoing consultation and cooperation between parents), (d) (continuity of care, development and upbringing) and (e) (continuity of relationship with both parents and extended families) as relevant. The Judge also referred to the Supreme Court’s discussion of the s 5 principles in Kacem v Bashir6 and the factors referred to in S v
O.7 She summarised the approach to be taken in the following way:8
There is no presumption in favour of either relocating or continuation of the status quo, and no party bears an onus of proof. All factors are to be
6 At [21]–[24].
7 S v O [relocation] (2005) 25 FRNZ 259 (HC).
8 At [15].
evaluated to determine which option would best serve the children’s welfare
and best interests in the particular case.
[13] The Judge recorded the children’s views. She then canvassed the parties’ circumstances since 2007, when Judge Walker had declined Ms Thorpe’s application to relocate with the children. She (rightly) excluded an inadequate psychologist’s report and any safety concerns.
[14] In terms of the relevant s 5 factors:
(a) in relation to continuity of care, development and upbringing, the Judge found that remaining in Auckland, with their current schools, friends and paternal family, was preferable for the children;
(b)on the issue of consultation and cooperation between the parents, the Judge found that that Mr Barrett was more likely to promote ongoing consultation whereas Ms Thorpe was more likely to avoid communication and make unilateral decisions and being in the South Island was likely to compound that;
(c) in relation to the continuity of relationship with both parents and extended family, she found that the locations were evenly balanced;
(d) in terms of meeting financial and practical needs, she found that
Mr Barrett was better placed financially to provide for the children.
[15] The Judge also considered the merits and reasonableness of Ms Thorpe’s decision to move to the South Island, finding that it was unreasonable and not child focused.
[16] She referred to the children’s (particularly C’s) views but declined to place significant weight on them.
[17] She concluded by referring to the negative disruption to the children in moving and found that their best interests were served by remaining in Auckland in their father’s care:9
… I find that there is no cogent evidence to support [Ms Thorpe’s] claim that the children’s welfare will be promoted by moving to [the South Island]. I am satisfied, on the basis of careful consideration of the principles of the Act, with [C’s] and [J’s] best interests and welfare as the sole issue that they should remain in Auckland. That inevitably means that they will live with their father.
I have carefully considered the strong bond that they have with their mother. They have now lived apart from her for over 14 months. They are coping well. Their lives continue as before. Their father has stepped into his new role of being the primary parent and is fully supported by his own parents. The children continue to have a strong bond with their mother, irrespective of her move. They are now of an age where that relationship can continue at a distance, given [Ms Thorpe’s] decision to move.
[C’s] wishes have been influenced and are not determinative. I am confident that she will accept that her life in Auckland with her father is now permanent, and adjust.
Did the Judge err in considering the reasonableness of Ms Thorpe’s move?
[18] I consider this ground of appeal first because it is closely connected with the general approach to be taken in cases such as this.
[19] The Judge treated the application as a typical relocation case and, had it been determined within a reasonable period of being made, it would have been a typical relocation case. Indeed, it would have been very similar to the application that Judge Walker refused in 2007. However, for reasons that were not explained to me, the application was not heard until April 2015, by which time Ms Thorpe had been living in the South Island for over a year and the children had been in their father’s full-time care for that time.
[20] Mr Ashmore, for Ms Thorpe, submitted that the Judge erred in treating it as a typical relocation case and should have simply addressed the straightforward question of which location would best serve the children’s interests. In particular,
the circumstances in which Ms Thorpe came to be living in the South Island were
9 At [93]–[95].
not relevant because under s 4(2)(b) a party’s conduct is only relevant to the extent that it is relevant to the child or children’s welfare and best interests.
Principles relevant to relocation where the applicant has already moved
[21] CoCA does not distinguish between cases in which the applicant seeks to move with children and those in which the applicant has already moved and seeks to have the children join him or her. Both cases fall within s 4(1) and the central inquiry is which option will be in the welfare and best interests of the children, taking into account the other provisions of ss 4 – 6 insofar as they are relevant to the children’s circumstances.
[22] The Supreme Court’s decision in Kacem v Bashir contains an extensive discussion of the principles relating to the relocation of children. These principles apply equally whether the applicant has already moved or is seeking to move with the children. Kacem v Bashir concerned a mother’s application to be permitted to relocate with two young children to Australia, where her wider family lived.10
Tipping J, speaking for the majority said:11
The relocation issue raised in this case clearly comes within the reach of s 4(1). Hence the Court must regard the welfare and best interests of the two children involved as the first and paramount consideration. By its references to “particular child” and “particular circumstances”, s 4(2) underlines the case-specific nature of the inquiry. That inquiry must focus on the particular circumstances of the individual case with no presumption of what the welfare and best interests of the child may require or what influence the s 5 principles may have on that question. Section 4(5) makes it mandatory for the Court to take into account, in a case-specific way, those of the principles specified in s 5 that are relevant. Section 4(5) also emphasises again that the focus must be on the particular child or children and his, her or their particular circumstances. Section 4(6) makes it clear that the s 5 principles are not exhaustive of the matters that may be relevant to the welfare and best interests of the child or the children involved. Nor does s 5 limit s 6, which is concerned with the child’s views on the matters at issue.
It can therefore be seen quite clearly that the ultimate objective is to determine what outcome will best serve the welfare and best interests of the particular child or children in his, her or their particular circumstances. In making that determination the s 5 principles must each be examined to see if they are relevant, and if they are, must be taken into account along with any other relevant matters. …
10 Kacem v Bashir, above n 5.
11 At [18]–[19] and [23]–[24].
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.
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.
[23] Later in the judgment Tipping J emphasised again that there is no presumption in favour of, nor greater weight to be given to, any one of the s 5 principles. He went on to record the Court’s disagreement with a view expressed by the then Principal Family Court Judge that principle 5(b) had the effect of indicating that “parents should not relocate if to do so would have a detrimental impact on the [child’s] relationship with the other parent”. Tipping J observed that:12
With respect, most relocations are likely to involve some detrimental impact on the relationship with the other parent. The suggested approach would constitute a strong presumption against relocation. That is not the right reading of principle (b).
[24] I note that issues similar to those arising in this case were considered by Koś J in Millett v Clyde.13 The applicant had already moved to Auckland to live with her new partner and sought an order that her two sons be permitted to relocate from Wellington, where they were living with their father, to live with her. Dealing with a submission that it would be contrary to the Act to allow a relocation decision to be determined by the fait accompli of one parent relocating without the children, Koś J said that:14
Section 4(2) of the Act makes it clear that it is the circumstance of the
children, now, that must be considered …
12 At [28], n 21.
13 Millett v Clyde [2012] NZFLR 351 (HC).
14 At [48] and [50].
It may be that this approach encourages relocation, or the presentation of a fait accompli transfer on the part of one parent. If so (and I express no view), it is a policy judgment that Parliament has made. The relocating parent will still usually face something of a minefield in traversing the s 5 principles. In my view it is better to focus on s 5, the welfare of the children, and not allow ourselves to be distracted by inquiring into the adequacy or otherwise of the mother’s rationale for her relocation. Her location is simply one of the circumstances that we must deal with under ss 4 to 5.
[25] As I have noted, there is no distinction in CoCA between parents who seek permission to move and those who seek to vary parenting orders once they have moved. I agree with Koś J that both cases require the same assessment of which location will be in the best interests of the child or children. Further, an inquiry into the reasonableness of the relocating parent’s decision is limited by s 4(2)(b) which provides that:
Any person considering the welfare and best interests of a child in his or her particular circumstances – …
may take into account the conduct of the person who is seeking to have a role in the upbringing of the child to the extent that that conduct is relevant to the child’s welfare and best interests.
(emphasis added)
The Family Court decision
[26] Judge Pidwell was clearly conscious of Kacem v Bashir, specifically noting that there was no presumption in favour of either relocation or the status quo and that no party bore an onus of proof. It was a matter of evaluating all the relevant factors to determine which would best serve the children’s welfare and best interests.
[27] The Judge also noted, correctly, that the factors relevant to a decision involving relocation could include factors beyond those identified specifically at s 5, citing S v O [Re-location].15 However, among the other factors she identified was the merit and reasonableness of the relocating parent’s wish to relocate. In doing so she did not make any reference to s 4(2)(b) and it is apparent from her discussion that she treated the reasonableness of Ms Thorpe’s decision, in itself, as relevant
rather than seeking to identify the extent to which that decision was relevant to the
welfare and best interests of the children.
15 S v O [re-location] , above n 7.
[28] The Judge identified Ms Thorpe’s genuine and long-felt desire to return to the South Island but noted that “[t]he parties chose to live in Auckland when they were together and the children established their lives here. It would be quite wrong for me to focus on [Ms T’s] own emotional wellbeing as the primary or central issue in this case”. The Judge identified Ms Thorpe’s genuine desire to help care for her mother who suffers from a medical condition, but said that “[a]t this crucial time in the children’s childhood I do not consider it to be reasonable for Ms [T] to place her own mother’s needs ahead of her children’s”. Finally, the Judge considered that Ms Thorpe was no better off in [the South Island] than she had been in Auckland: “[T]he inference is that she will be mortgage free however she has no income and has not undertaken any further study. Her job prospects are vague and not substantiated by any other evidence”.
[29] The Judge concluded that:16
In light of the Court’s findings in 2009 and in light of these factors, I do not consider [Ms T’s] wish to relocate to [the South Island] to be reasonable, or child focused. It may meet her needs but her own needs are secondary to the needs and welfare of the children.
[30] The question that the Judge was required to consider under s 4(2)(b) was: to what extent was Ms Thorpe’s move to the South Island relevant to the children’s welfare and best interests? The Judge’s focus on the decision from Ms Thorpe’s perspective meant that this question was not addressed. For example, whether, in the Judge’s view, Ms Thorpe was no better off in the South Island than she was in Auckland (which is debatable, given the level of family support she now has) says nothing about the extent to which the move was relevant to the welfare and best interests of the children.
[31] Mr Barrett submitted that Ms Thorpe’s conduct was relevant because, by leaving Auckland as she did, Ms Thorpe immediately deprived the children of the benefit of the shared care arrangement that had been in place and had been advantageous to the children. There would be merit in this submission if it indicated that Ms Thorpe would not put the interests of her children first in the future, which
would clearly be relevant. However, that would need to be considered against all the
16 At [85].
other evidence and, overall I do not think it can be said that Ms Thorpe’s move indicated that her future parenting of the children would be adversely affected. The central inquiry was whether the welfare and best interests of the children would be better served by remaining in Auckland with their father or moving to the South Island to live with their mother.
The children’s views
Relevant principles
[32] Section 6(2) requires that in proceedings involving the role of providing day- to-day care for or contact with a child:
(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.
[33] Randerson J considered the application of s 6 at some length in C v S.17
Relevantly to this case the Judge said:
Any views expressed “must be taken into account”. The expression “take into account” is stronger than the common statutory formula “have regard to” but it does not go so far as to oblige the decision maker to act in accordance with any view expressed by the child. 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) Guardianship Act and Art
12 of the Convention18) 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.
Despite the omission in the new section to 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.
[34] Further helpful observations appear in the decision of the Full Court of this
Court in R v S.19 Priestley J, in his concurring judgment, referred to the Convention right of a child to express his or her view and have it given due weight. He then
17 C v S [2006] 3 NZLR 420 (HC) at [31].
18 United Nations Convention on the Rights of the Child.
19 R v S [2004] NZFLR 207 (HC).
went on, in the context of a relocation application under the Guardianship Act 1968, to observe that:20
With young children, as was the case with the child to whom this appeal relates, it would usually be inappropriate or impossible to ascertain the child’s wishes. But with children of more advanced years, particularly children approaching or in their teens, the obligation imposed on the Court by s 23(2) to ascertain the child’s wishes must be reinforced by the child’s international law rights set out in Art 12.
In a relocation case involving a mature child and indeed in any case where the child, despite divided loyalties, articulates a valid view, the weight to be given to a child’s wishes must be considerable. In a finely balanced case the view may be determinative.
[35] Although that statement was made in the context of the Guardianship Act, it applies equally to a decision under CoCA.
The evidence
[36] The evidence of the children’s views came from reports by Ms Kearns as lawyer for the children. In a report to counsel dated 3 February 2014, prepared when the children were in the South Island with their mother, she referred to C’s “continued ambivalence towards her father”. She recorded her significant concern about J who told her that “he felt like everyone had forgotten about him”. He talked about missing his friends in Auckland. Ms Kearns was very concerned at the impact on J of being separated from his father.
[37] On 21 November 2014 Ms Kearns interviewed the children again. By this time they were back in Auckland. Although acknowledging that things had “got a bit better as time went on” following the shift to her father’s day-to-day care, C told Ms Kearns that:
… she wanted to be with mum because she was the only girl in the family and that she and her brother had to share a room. She said “my body is changing and with mum there are lots of girlfriends and they can help me out”. She said another reason why she wants to go to [the South Island] was because her gran was sick and she wants to “take care of her”. She again repeated “my body’s changing and I don’t feel comfortable being with dad. I’m more a mummy’s girl than a daddy’s girl”.
20 At [79]–[80].
[38] In her interview with J he said that things were “good” living with his father.
[39] Ms Kearns interviewed the children again on 26 March 2015. C reported the following:
She said things were alright at home but she was bored and sick and tired of staying with dad. She wants to do something different. She said she didn’t feel comfortable. She said “I want to start my life over again and have a fresh start and make a big change in my life”. She told me that “Living with my mum is all I want, I told dad on my birthday that what I want for my birthday is to be able to move to [the South Island] and I’ve said to dad why can’t you let me. I said to dad don’t you want me to be happy? I am really angry with him, I am sick of living with him.”
[40] C then made comments about an incident in which Mr Barrett was said to have hurt her21 and then went on:
Some days I feel really strongly about it and other days I feel really weak … I have never felt comfortable here I don’t feel comfortable. I’m not the same old me. Dad has destroyed our family. Then when I asked her why he destroyed her family she said because of the court case it had made a situation even worse. She said that mum used to have a good relationship with her paternal grandparents. They had said to her that they have tried to help her Mother but her Mother had told her they were lying. [C] told me she did not believe them. “It’s not my mum’s fault my grandparents are on dad’s side” … All I want is to be happy in [the South Island] where I feel I belong … I don’t want the judge to make the wrong decision. The right decision is to be with mum. People don’t seem to understand it, they don’t take me seriously that I really mean it and I feel very strongly about it.
[41] In the second interview with J he told Ms Kearns that things were “good” with dad, said that he missed his mother and that holidays were not long enough and was ambivalent about where he would live:
… Maybe I will change my mind where I want to live and I might want to
stay with dad. I am not sure at all. Or maybe I will stay with mum.
The Judge’s finding
[42] The Judge had the benefit of the children’s views conveyed by Ms Kearns. She met the children herself (at the request of the children), but not for the purpose
of obtaining their views. The Judge recorded that:22
21 I have noted previously that safety is not an issue in this case.
22 At 27]–[29].
[C’s] clear wish is to live with her mother in [the South Island]. She has expressed that view consistently. She describes herself as a mummy’s girl. She enjoys the time that she spends in [the South Island] with her mother and the extended family and friends down there.
[J] is more ambivalent than his sister. He has expressed a wish to live in [the South Island] with his mother, but he was clear that he did not want to make the decision about choosing between his parents.
One issue in this case is whether the children’s wishes have been influenced
in any way and what weight I should place on those wishes.
[43] The Judge acknowledged that [C’s] views were clear and consistent and that, because of her close relationship with Ms Thorpe and given her age, it was understandable that she would want to live with Ms Thorpe. However, the Judge then effectively discounted C’s views on the basis that she had been influenced by both her mother and her maternal grandfather:23
I accept that [C’s] views are genuine from her perspective. However they have been affected by the fact that she is old enough to pick up on the ongoing discussion, both spoken and unspoken. I find that they have been influenced by her mother and grandfather. I base this finding on the following:
· Her grandfather has a strong and unwavering view that life in [the
South Island] surpassed [sic] life in Auckland and [C] knows this.
· Her mother has had a deep and ongoing yearning to return to [the
South Island] for years and [C] knows this.
·[Ms T] spoke to [C] numerous times before [C] met with lawyer for the child before she submitted her last report to the Court. [C] raised again “safety” issues and used language which suggests she knew her mother’s clear position before the Court.
·[C] has a close emotional bond with her mother and a temperament which suggests she would want to please her.
[C] is not of an age where she can foresee and analyse all the consequences of the decisions such as these. Her views are a heavy factor that I must consider but they are not determinative. They have been influenced and that reduces the weight I put on them.
[44] In relation to [J’s] views the Judge said only:24
[J’s] view is more ambivalent. I accept he has expressed a preference to live in [the South Island] in the past but that is in the context of knowing his
23 At [89]–[90].
24 At [88].
sister wants that and his mother has chosen that. Given his age and ambivalence I place little weight on his views.
Was there an error?
[45] Mr Ashmore submitted that, although the Judge had recorded the children’s views and acknowledged the requirement to take them into account she had not, in fact, done so. To the contrary, she treated the children’s views as having little weight as a result of having been (unduly) influenced but failed to recognise that a child’s view inevitably reflects the factors that are influential in the child’s life. The Judge’s view of those factors as inherently suspect was insupportable.
[46] Mr Barrett emphasised his opinion that C’s views had been unduly influenced by her mother and maternal grandfather and that the Judge had determined this issue correctly.
[47] I consider that the Judge did make errors in her approach to the children’s views. First, although she accepted that C’s views were genuine she did not accept that they were valid in the sense of deserving significant weight. Her reasoning assumed that the influence of her mother and grandfather was undesirable and suspect. But there was no basis for that. In fact, the reasons she gave were the very kinds of reasons that one would expect a child’s view of where he or she wished to live to be based on.
[48] In particular, the fact that C has a close emotional bond with her mother is an entirely valid and genuine reason for C to want to live with her. It can hardly be viewed as a suspect or invalid form of influence. This is especially so given that the children had spent their early formative years in Ms Thorpe’s primary care which the Judge had accepted was particularly good: “she has provided them with exemplary care. They were living carefree childhoods. They are clearly attached to her and it is
understandable that they would want to be with her”.25 It is hardly surprising that
the children have such a close bond with their mother and it demeaned that bond to treat it as having been produced by some undesirable influence.
25 At [69].
[49] Similarly, the influence of the children’s maternal grandparents was, in my view, wrongly treated as unfair or undue. No doubt, Ms Thorpe’s father has expressed strong views about the South Island as opposed to Auckland. But the real point here is that these children have spent a good deal of time in the South Island on holidays. They clearly have a favourable view of life in the South Island and feel the security and stability of Ms Thorpe’s extended family. There is no basis for attributing such considerable weight to views expressed by their grandfather as to play down the ability of these children to form genuine views based on their own experiences.
[50] I accept Mr Ashmore’s characterisation that the Judge’s approach effectively constituted a “trap” for C; legitimate reasons for her to hold the views that she does were turned around and presented as reasons that her views should not be accorded the weight they apparently deserved.
[51] I also consider that the Judge was wrong to conclude that C was not of an age where she could foresee and analyse all the consequences of the decisions. Self- evidently, no child has that ability. But nor does s 6 require that. The question for the Judge was simply what weight was to be put on C’s views. At 12, C was entitled to have her decisions accorded genuine recognition. The specific reasons she gave for feeling the way she did, including the changes accompanying the onset of puberty, were entirely legitimate.
[52] I do not consider the Judge to have been wrong in her assessment of J’s views. Up to that point he had expressed quite ambivalent feelings and although he was of an age to express stronger views he did not do so. However, to the extent that J did express views they were effectively discounted as being influenced by what C and Ms Thorpe wanted. Because of the negative view the Judge had already formed about C’s wishes this resulted in J’s position being dealt with rather summarily.
Findings not supported by the evidence
[53] Mr Ashmore submitted that the Judge made several findings that were not supported by the evidence.
The parties’ respective parenting abilities in terms of continuity
[54] In relation to the issues of continuity of care, development and upbringing the Judge emphasised continuity in the sense of the children remaining in Auckland with the same schools, friends and paternal family relationships. She did not, however, address continuity in the sense of the physical and emotional care that the children had enjoyed for most of their lives. At the outset of her discussion on this issue the Judge had said:26
I accept that [Ms T] has been the main caregiver of the children for most of their lives, up until February 2014. She has provided them with exemplary care. They were living carefree childhoods. They are clearly attached to her and it is understandable that they want to be with her.
[55] Later, however, she concluded that:27
Noting that they have only ever lived in Auckland (setting to one side the care issue), the continuity of their upbringing will be promoted by remaining in Auckland. They will continue at the same schools. They will retain the same school friends. They will continue their relationship with their paternal grandparents. They will live in a city that is familiar to them and with which they identify. Therefore, on this principle, I find that continuity favours Auckland.
[56] There was an inconsistency in the Judge’s approach to this issue. Notwithstanding the recognition of Ms Thorpe’s importance to the children for most of their lives, the Judge appears to have emphasised external factors relating to continuity associated with location, such as schools and school friends. But the most significant continuous aspect of the children’s lives was not these external factors. It was their mother’s primary and, by all accounts, very effective care for the larger part of their lives. The children had been in their father’s primary care for only a fraction of the time that they were in their mother’s care. I consider that this factor required greater weight and that if that had been done the assessment may well have favoured the South Island.
[57] Perhaps more than in some cases, the history of these children’s care
warranted careful consideration. This is an aspect on which the Judge would have
26 At [69].
27 At [73].
been assisted by a psychological report. In hindsight, the need for an adequate report was not sufficiently recognised at the time.
Meeting financial and practical needs
[58] In making the assessment that Mr Barrett is financially more able to provide for the children than Ms Thorpe, the Judge emphasised the fact that Ms Thorpe was not working and was dependent on her parents. However, there were positive aspects that were not taken into account. The evidence showed that she was being provided with land on which to build a house and that her father had and would continue to meet the cost of the children’s airfares to and from the South Island.
[59] There was no suggestion that, if the children lived in the South Island, they would not be adequately cared for in a material sense. Looking at the welfare and best interests of the children there was no cause for concern, wherever the children lived.
The finding that the father was more likely to support the children’s relationship
[60] It was evident that the parties did not communicate well with one another. The Judge found that Mr Barrett was more likely to promote consultation than Ms Thorpe. Mr Ashmore submitted that this finding was against the weight of evidence and inconsistent with the Judge’s own previous finding about Ms Thorpe.
[61] At the outset of her discussion on this issue the Judge recorded that:28
There is no suggestion that [Ms T] has restricted the children’s relationship with their father in any way during her time as primary caregiver. She promoted contact, she was adaptable, and she juggled her own commitments around the needs of the children and their need to see their father.
[62] That was essentially a positive finding in relation to Ms Thorpe’s support of the children’s ongoing relationship with their father. However, by the end of her
discussion on this topic the Judge found that:29
28 At [63].
29 At [68].
[Ms T] is emotionally fragile and may still continue to find communication with [Mr B] too distressing to engage in. She is more likely to avoid communication and make unilateral decisions for the children. If she is in [the South Island] that position is likely to compound.
[63] Apart from criticism of the level of support from her parents (which the Judge clearly regarded as excessive) there was no evidential basis identified for the latter finding.
[64] In relation to Mr Barrett’s abilities in this area, the Judge acknowledged (and Mr Barrett accepted) that he had not facilitated contact arrangements at times. The Judge described Mr Barrett’s personality as “more positional than [Ms Thorpe’s]”, noted that he has had counselling to address communication and other issues, “and now realises he did not handle some issues well in the past” but “appears to have re- focused his life to ensure that he is putting the children’s welfare first”.
[65] A predictive assessment as to how people will behave in the future is always problematic. Given Mr Barrett’s relatively late recognition of his inadequacies in this area there was no basis to find that he was more likely to promote ongoing consultation than Ms Thorpe. I agree that the finding was against the weight of evidence.
Re-assessment
[66] The errors that I identified clearly had the capacity to influence the outcome of the Judge’s decision. I therefore undertook a re-assessment of the application. I did so mindful that the Judge had seen and heard the witnesses, an advantage not available to me. However, I did have the benefit of a further report from Ms Kearns, prepared for the purposes of the appeal.
[67] Ms Kearns saw the children again on 16 September 2015. She reported about
C that:
She said that when she goes to [the South Island] she is really happy, calm and feels like she belongs. She said that it is just “too hard” when I have to say goodbye and I don’t want to leave …
[C] was very clear to me that she wanted to go down to [the South Island] at the start of next year and try it out. If she likes it there then she would then stay on …
C was aware that her school counsellor had recently contacted me. C told
me that “all my feelings are locked up and I just want to be happy” …
She stressed frequently throughout the interview that she just wanted to do what she wants and start next year in [the South Island]. She said that she was angry with everyone in the court and again stressed that she just wanted to be happy. When I asked her about what contact she would have with her father if she moved to [the South Island] she was ambivalent and later said she would not want to see him at all.
[68] In submissions Ms Kearns expressed her deep concern that, notwithstanding both her and the Judge’s expectations that the children, particularly C, would adapt to life in Auckland with Mr Barrett and settle down, that had not happened. C’s views were clearly unchanged and, if anything, stronger. Ms Kearns also expressed some concern that C was having counselling at school but would not agree to the counsellor disclosing the nature of those communications.
[69] In relation to J, Ms Kearns reported that:
He also made it clear to me that he wanted to live in [the South Island] but he did not want to upset his father by saying that.
[70] Ms Kearns conveyed a strong feeling by J that he was not being paid sufficient attention on this topic.
[71] The relevant factors seem to me to be: first, these children had enjoyed a very close and stable upbringing under Ms Thorpe’s day-to-day care for most of their childhood; secondly, Mr Barrett had overcome earlier inadequacies to focus on his children and was providing a good standard of care; thirdly, C was not settling and her strongly expressed views of wanting to live with her mother indicated a level of distress that seems unlikely to dissipate; fourthly, J’s earlier ambivalence had altered to a more certain view of wanting to live with his mother; fifthly, the circumstances of the children’s early years suggest that their views are valid and not merely the product of undue influence by Ms Thorpe and her father; sixthly, based on Ms Thorpe’s earlier behaviour in Auckland it can reasonably be expected that she will support the children’s ongoing relationship with Mr Barrett and the wider
paternal family; seventhly, holidays and weekend visits with Mr Barrett will provide the opportunity to foster that relationship; eighthly, the children’s material needs will be adequately met in either location.
[72] Looking at these factors overall, the evidence showed that the case was evenly balanced as regards financial support for the children, continuity of parental and wider family relationships and the likelihood of support for the children’s relationship with the parent without day-to-day care. However, in terms of continuity
of care and the children’s views the assessment clearly favoured the South Island.
P Courtney J
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