Turner v Turner
[2023] NZHC 1553
•21 June 2023
NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION,
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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2023-404-281
[2023] NZHC 1553
UNDER the Care of Children Act 2004 IN THE MATTER OF
of an appeal against the decision of Judge D A Burns in the Family Court at Auckland dated 19 December 2022.
BETWEEN
Turner Appellant
AND
Turner Respondent
Hearing: 7 June 2023 Appearances:
R Rao for Appellant
B Snedden for Respondent M Headifen for Children
Judgment:
21 June 2023
JUDGMENT OF ANDERSON J
This judgment was delivered by me on 21 June 2023 at 3.00 pm pursuant to r 11.5 of the High Court Rules 2016.
……………………………… Registrar/Deputy Registrar
Solicitors:
Inter Lynch, Manukau Thomas and Co, Auckland
Turner v Turner [2023] NZHC 1553 [21 June 2023]
Introduction
[1] In this judgment the names of the parties, children and schools are anonymised.1
[2] The appellant, Mr Turner, and the respondent, Ms Turner, are the parents of George (13 years old), Sophie (11 years old) and Anna (six years old). Mr and Ms Turner separated in November 2018. They have been unable to agree on the schooling of the children.
[3] On 19 December 2022, Judge D A Burns in the Family Court at Auckland made directions under s 46R of the Care of Children Act 2004 (COCA) on Ms Turner’s application as to the schools George and Sophie would attend in 2023 onwards.2 At that time, George was in his final year at Intermediate School A and Sophie in her final year at Primary School A.
[4] Mr Turner argued before Judge Burns that George should attend an independent school, Secondary School B, in 2023 and beyond. He contended that Sophie should attend Primary School B (a Year 1-8 school in his local zone) then follow George to Secondary School B from Year 9. Mr Turner said he would pay for the costs of this independent school. Judge Burns instead directed that George would attend Secondary School A and Sophie would attend Intermediate School A as sought by Ms Turner in her application, being the schools in Ms Turner’s local school zone.
[5] Mr Turner appeals Judge Burns’ decision. By consent, the parties agree that the issue of whether the necessary leave to appeal should be granted and the appeal itself are to be determined in the same hearing.
[6] In his oral submissions, Mr Rao for Mr Turner amended the relief sought in the event I decided to set aside the Family Court Decision. An order is sought remitting the matter back to the Family Court for a new hearing. Mr Rao submitted that the fresh hearing would or should include cross-examination of the parties.
1 Care of Children Act 2004 [COCA], s 139; Family Court Act 1980, subss 11A-11D.
2 [Turner] v [Turner] [2022] NZFC 13000 [Family Court Decision].
[7] The relief sought was to recognise that the appeal is addressing only George and Sophie’s schooling, with Anna still at Primary School A. Mr Turner has an existing s 46R application in the Family Court seeking orders for his nominated schools for Anna (Primary School B followed by Secondary School B). Ms Turner wants Anna to remain at her current primary school and to attend the intermediate and secondary schools currently attended by Sophie and George.
[8] Mr Rao also submitted that remitting the matter for a new hearing remedied procedural deficiencies in the first hearing by enabling cross-examination of Mr Turner on affordability of independent school fees; and on the impacts of travel on Ms Turner’s job if his schools were chosen.
Further information available on appeal
[9] By consent, the parties each filed and served “a further affidavit on appeal strictly in relation to the cost and affordability of the schools proposed by the appellant”. In addition, Mr Headifen, as counsel for the child, met with George and Sophie the week prior to the hearing and talked to the Deputy Principal of Sophie’s school. Mr Headifen’s report conveyed the children’s updated views and experience of their new schools.
Approach on appeal
[10]The appeal is brought under s 143 of the COCA. There is no dispute as to the applicable law.
[11]Leave to appeal a guardianship direction will only be granted if the appeal raises a sufficiently important issue. The principles governing leave are set out in SFB v JEBH.3
[12]If leave is granted, the appeal proceeds by way of general rehearing and the principles in Austin, Nichols & Co Inc v Stichting Lodestar apply.4 I am to
3 SFB v JEBH [2015] NZHC 2897.
4 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [13] and [16].
consider the merits of the case afresh. I must be persuaded that the decision appealed from is wrong, but the weight I give to the reasoning of the Court below is a matter for my assessment. The parties are entitled to judgment in accordance with the opinion of this Court, even where the opinion is an assessment of fact and degree.5
Issues
[13]The issues are:
(a)Should leave to appeal be granted – Ms Turner says granting leave would be moot because Mr Turner does not have the financial means to pay independent school fees on a continuing basis. This is said to mean there is no seriously arguable issue.
(b)A procedural issue – Mr Turner says that the Family Court wrongly refused him an adjournment on the day of the hearing and proceeded to determine the application prior to expiry of the time for his response.
(c)The substantive issue – should the appeal be granted on its merits? Mr Turner says the Family Court erred in the following ways:
(i)granting the application for George and Sophie to attend the schools nominated by Ms Turner;
(ii)finding Mr Turner has tried to effectively change the children’s residence by way of “backdoor application”;
(iii)finding Mr Turner would not be able to afford independent school fees; and
5 The onus is on the appellant to demonstrate that the decision under appeal is wrong in some manner, but if my opinion is different from the conclusion of the Court appealed from then the decision is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ: Austin, Nichols & Co Inc v Stichting Lodestar, above n 4, at [16].
(iv)discounting or otherwise giving insufficient weight to the views of the children which were required to be considered.
(d)What should be the outcome of the appeal?
[14] In addressing these issues, I am acutely conscious of the significance of the decision for both children. The decision impacts not only their schooling but their day-to-day lives outside school.
[15] I have carefully considered George and Sophie’s views as set out in Mr Headifen’s report and submissions. I acknowledge that at aged 13 and 11 their views have considerable weight. I have also carefully considered the oral and written submissions of the parties.
Summary of background facts
[16] Mr and Ms Turner were married in 2008. They separated in 2018. Prior to the separation, the children lived in the Sandringham/Mt Eden area. Ms Turner then remained in the family home in Sandringham. Mr Turner moved first to central Auckland and subsequently (in around February 2020) to the West Auckland area.
[17] On 27 November 2019, the Family Court made an interim parenting order by consent directing that the parties share the care of George and Sophie on a 5:2:2:5 fortnightly basis and that Anna was to spend 11 out of 14 nights with Ms Turner, the remainder with Mr Turner. This order was made final on 30 July 2020 with some amendments.
[18] In January 2021, directions as to schooling were made.6 The judgment of Judge K Muir recorded that Mr Turner had moved to live near Waitakere Village.
[19] On 30 August 2021, the Family Court discharged the earlier parenting order and made an interim order providing for the children to transition to a week-about shared care arrangement.7 Mr and Ms Turner were unable to agree on timing and were
6 [Turner] v [Turner] [2021] NZFC 395.
7 [Turner] v [Turner] [2021] NZFC 8539.
directed to attend communication counselling. This order was made final on 7 March 2022 and remains in place.8
[20] On 24 May 2022, Ms Turner advised Mr Turner of her preferred schools for Sophie and for George in 2023. There was intermittent communication between the parties in which Ms Turner outlined her preferred schools and reasons. Mr Turner did not advise his preferences.
[21] In June 2022, Ms Turner initiated Family Dispute Resolution (FDR) with Mr Turner. The parties ultimately went through an unsuccessful FDR process on 9 November 2022. Again, Mr Turner did not advise his preferences. The FDR mediation ended with Ms Turner informing Mr Turner that she was going to court.
[22] On 28 November 2022, Ms Turner applied for directions on schooling under s 46R of the COCA for her nominated schools. The application was served on Mr Turner on 6 December 2022 and was heard before the Judge on 13 December 2022. Associated with the hearing, the Family Court made procedural directions. On the day of the hearing Judge Burns refused Mr Turner’s adjournment application. This refusal forms the basis of the appeal on natural justice grounds.
Statutory context – COCA
[23] Decisions on changes to the children’s place of residence and where they are to be educated are important matters affecting the child which are within the responsibilities of Mr and Ms Turner as their children’s joint guardians.9 They are required to act jointly in making those decisions, particularly by consulting wherever practicable with the aim of securing agreement.10 If unable to agree, either party may apply to the Family Court for its direction under the COCA. The application must be accompanied by a form demonstrating they have been to FDR within the preceding 12 months. 11
8 [Turner] v [Turner] [2022] NZFC 1983.
9 COCA subss 16(1) and (2).
10 Section 16(5).
11 COCA, s 46R. In the circumstances such as the present, by s 46E(2) the application was required to be accompanied by a family dispute resolution form that has been signed by an FDR provider within the preceding 12 months.
[24] In COCA proceedings, the welfare and best interests of a child in his or her particular circumstances must be the first and paramount consideration.12 The Court is required to take into account the principle that decisions affecting the child should be made and implemented within a timeframe that is appropriate to the child’s sense of time.13 The Court must also take into account the principles set out in s 5 of the COCA relating to a child’s welfare and best interests.14 The Court 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 the conduct is relevant to the child’s welfare and best interests.15
[25] In proceedings involving guardianship, a child must be given reasonable opportunities to express views on matters affecting them and any views expressed by them directly or through a representative must be taken into account.16 It was common ground that in this case, the issue of schooling is complex and the children’s views are not determinative.17
Views of the children
[26] Mr Headifen provided a report to the Court after meeting with the children prior to the Family Court hearing. The below summary is largely from his updated memorandum, outlining the views of the children after meeting with them the week before the appeal.
Sophie
[27] Sophie expresses a desire to change school to that of her father’s choice. She feels she is being picked on at her present school. She says she is conscious of the fact that she comes from a separated home and feels she knows no other children at her
12 Section 4.
13 Section 4(2)(a)(i).
14 Section 4(2)(a)(ii).
15 Section 4(2)(b).
16 Section 6.
17 Mr Headifen referred me to Moore v Moore [2014] NZHC 3213, [2015] 2 NZLR 787 on the issue of the welfare and the best interests of the child when that conflicted with the child’s view and when the child may have rights pursuant to the New Zealand Bill of Rights Act 1990. No counsel suggested on the basis of that decision that George and Sophie are of sufficient age and maturity such that their views carry determinative weight on the schooling issue having regard to fundamental rights.
school in a similar situation. She considers that at times she is not treated fairly. When Mr Headifen asked how Sophie was not being treated fairly, as relevant, she stated that she wished to spend more time with her father and that a change of school would allow her to do so
[28] Sophie indicated that her friend group consisted of friends she had made at her previous school and that she had made no other friends. Her teachers, however, indicated that she had made a new friend not from her primary school. Sophie is involved with sport and music at school and has five girls who she is close friends with in her class. Although Sophie feels that she may be getting picked on during sports games, the school is of the view that any contact during games is part of the game rather than indicative of any bullying.
[29] Sophie told Mr Headifen that she felt that if she attended private school there would be a “big learning difference” and “all her wishes would be met”. Sophie also told Mr Headifen that were she to attend school of her father’s choice the travel would be against the flow of traffic which would enable her to spend more quality time with her father (as at present much time is spent travelling in the car). Sophie reported prior to the Family Court hearing that from time to time she would end up with a headache in the car. Both she and George expressed the view in this earlier report that they thought the amount of travel time for their father was unfair and a school half-way between their parents’ houses would be the best answer.
[30] Mr Headifen was concerned with Sophie’s views of her experience at her present school and requested to speak to the Deputy Principal. The school reported that Sophie was confident and happy in class. She had made friends and was open to sharing her opinion and talking in front of the wider class. She is a “keen sportsperson” and is not a “child who would hang back” in sports. Generally, the school felt that Sophie had fitted in well and that, contrary to Sophie’s belief, there were others in the school whose parents had separated. Staff had not observed any negative behaviour towards Sophie.
[31] Additionally, from Sophie’s comments, Mr Headifen considered that both Sophie and George had friends in their community who they visited outside of school.
George
[32] Despite initially expressing hesitations over the size of the roll at his new secondary school, George considers that things are going well for him this year and he appeared to Mr Headifen to be enjoying school. George indicated that he is achieving well in and enjoying his learning. However, because George did not take the November placement test, he may not have been placed in the right class. Nonetheless, George still feels he is achieving well. He did, however, express to Mr Headifen that he would like to be in a school where he was academically challenged and everyone was focused on their learning skills. George feels like Secondary School B would provide him with this environment and would push him to achieve academically.
[33] Although George has one friend in his class from his intermediate school, at times he feels lonely. George described that he had been “bullied a couple of times” during sports because of his small size but did not elaborate further. On reflection, George indicated that the friends that he had were “manageable and liveable” and while not a good situation, was not a disastrous situation for him.
[34] George described experiencing a few issues at school, particularly during week 10 in Term 1. He had been pushed to the ground and his lunch was tipped on the floor; he had slipped in mud and was called names alluding to the mud on his clothes; and his lock on his locker was broken, but nothing had been taken.
[35] George is well involved in sports at Secondary School A. Although his ability to play weekend games is impacted by his care arrangements, overall George considers sports are going well for him. George attempted to join an extra-curricular club but was unable to find the room it was located in. He told Mr Headifen that he got lost at times, which Mr Headifen considered was understandable given George is a new student at a new, large school. George indicated he was doing well and enjoying both homes. He said that he wished to go to Secondary School B.
[36] I come back to consider the children’s present position later. Before doing so I consider the judgment under appeal.
The judgment under appeal
[37] In summary, Judge Burns’ reasons for making the directions sought by Ms Turner were as follows:
(a)When the parties were together the children were brought up in the Sandringham/Mt Eden area, where they were living post-separation. Mr Turner chose to shift to West Auckland. He did not consult Ms Turner on this change to the children’s residence. Judge Burns characterised Mr Turner seeking to have the children change schools to his area in these circumstances as a “backdoor application for a change of the children’s residence”.18
(b)Mr Turner had chosen to shift the children’s “centre of gravity from Sandringham/Mt Eden to West Auckland” and then sought to impose significant travel time on Ms Turner without following the correct sequence of decision-making required by the COCA. If Mr Turner wished to change the children’s residence area and locality, he would need to apply for a ruling to do so.
(c)The Judge had “considerable doubt” on the information before him that Mr Turner could sustain paying independent school tuition fees on a continuing basis. This exposed the children to a risk of a further change of schools, which could have considerable negative impact.
(d)With the children attending a week-about arrangement, this meant little travel time one week and considerable travel the second. This was inconvenient for Mr Turner and not ideal but Judge Burns considered that Mr Turner should have factored this into his decision-making when he chose to live in West Auckland, and that this would be the inevitable outcome of relocating there without Ms Turner’s consent.
18 Family Court Decision, above n 2, at [14].
(e)Judge Burns saw “some merit”19 in an argument by Mr Turner that the overall travel time would be reduced based on travel schedules and google maps Mr Turner introduced. However, he accepted the evidence of Ms Turner that it would be virtually impossible for her to get up sufficiently early to get the children to Mr Turner’s proposed schools and still maintain her employment, which started at 7.30 am each day. Hence, Ms Turner would need to change employment which would not be in the best interests of the children to impose on her.
(f)Judge Burns characterised the views of George and Sophie as presented by their counsel as “to want what they think is fair”. He viewed the children as caught up in the conflict and finding it difficult to express a clear preference. Because of the high conflict, Judge Burns did not think he could put any significant weight on the children’s views.20
Issue 1: Leave to appeal – means to afford school fees as rendering the appeal moot
[38] Ms Turner says leave to appeal is moot because Mr Turner cannot afford the independent school fees on a continuing basis. This was said to mean that the appeal is not seriously arguable. Mr Sneddon, counsel for Ms Turner, accepts that the threshold for leave to appeal is otherwise satisfied. Specifically, schooling is an important issue with long term implications that would otherwise justify leave to appeal.
[39] I consider that uncertainty as to whether Mr Turner will have the ongoing means to meet the fees should be considered as material to the question of whether the appeal should be granted, rather than as sufficiently compelling to refuse leave. I consider this issue below.
[40]Accordingly, I grant leave to appeal.
19 Family Court Decision, above n 2, at [18].
20 At [19].
Issue 2: Procedural issues/breach of natural justice
[41] Ms Turner filed her s 46R application with the Family Court on 28 November 2022, together with an application for a reduction in time for Mr Turner to file a response.
[42] On 2 December 2022, the application was set down for an urgent hearing. Time for a response by Mr Turner was reduced from the usual 21 to seven days from the date of service. The Deputy Registrar directed that the hearing be a “submissions only” hearing at 10.00 am, 13 December 2022. Mr Turner was served with the application by email sent at 9.30 am on Tuesday 6 December 2022.
[43] By memorandum on 8 December 2022, Mr Turner sought an adjournment of the hearing until the second half of January 2023 on the basis that he wanted to obtain legal advice before submitting his response. He said he had not been able to appoint a solicitor at short notice in December 2022. The adjournment was opposed.
[44] Judge Burns declined the adjournment prior to commencement of the hearing on 13 December. The Judge recorded that the time for filing a response had expired at 9.30 am that morning so proceeding at 10.00 am that day was “not in breach of the direction made by the Registrar”.21 Judge Burns was incorrect in this calculation. Time expired at the close of that day. This point was conceded by Ms Turner’s counsel.
[45] There is no right of appeal against the interlocutory/case management orders made by the Family Court Registry and by Judge Burns.22 It follows that there is no appeal available to Mr Turner against the abridgment of time for a response, the direction for a submissions-only hearing or the adjournment application. Mr Turner did not contest this.
[46] However, Mr Rao submitted that because Judge Burns declined the adjournment and did not permit a full seven day response period, there was a breach
21 [Turner] v [Turner] FC Auckland FAM-2019-004-000686, 13 December 2022 (Minute of Judge D A Burns) at [2].
22 COCA, s 143(3A).
of natural justice that goes to the heart of the decision made. I accept that characterised as a matter of natural justice, it is an issue for this appeal.23
[47] The Family Court’s directions for an abridged response time and submissions-only hearing were reasonable given that the next school term was fast approaching. In any event they are not the gist of the natural justice complaint.
[48] As to the adjournment of the 13 December hearing, this would have deferred the decision on schooling at the earliest to hard up against the start of the 2023 school year. Mr Turner accepts that the principles of natural justice and procedural fairness are subordinated in the Family Court to the overriding goal of the promotion of the children’s welfare and best interests.24 I consider that the interests of the children in resolving the uncertainty for them trumped any countervailing considerations given my views below.25
[49] Specifically, I do not consider the factors relied upon as giving rise to a breach of natural justice are sufficient to justify setting aside Judge Burns’ decision for the following reasons:
(a)While it is correct that Mr Turner had one less day than his permitted time to respond, I agree with the Judge’s characterisation of Mr Turner doing “exceptionally well” in addressing the application. He provided a substantive and polished response dated 12 December comprising written submissions, a notice of defence and a 15-page affidavit plus exhibits also sworn on 12 December.
(b)The key issue raised by Mr Rao as to prejudice to Mr Turner from the adjournment and lack of the full seven days was inability to obtain representation and, in consequence the ability to pursue cross-examination. However, it is the direction of a submission-only
23 Compare Keen v Bradford [2020] NZHC 2213, [2020] NZFLR 638.
24 COCA, s 4.
25 George had by this point already missed the placement tests for Secondary School A. Any further delay would have been unacceptable.
hearing that determined this aspect rather than Judge Burns’ decision declining the adjournment.
(c)Ms Turner was also disadvantaged by the hearing proceeding. She did not have advance knowledge of Mr Turner’s school nominations. She learned of this on 12 December 2022 at the earliest when Mr Headifen served his report on the children’s views which made reference to this.26
(d)Mr Turner had been on notice since May 2022 that schooling must be resolved. The parties had been to a failed FDR on this issue in November. Accordingly, while Mr Turner had truncated notice of the particular hearing itself, he knew that the schooling issue needed urgent determination and hence the imperative to obtain counsel for this should he wish to be represented. Mr Turner was taken by surprise only by the precise timing of the application and hearing.
(e)The matter has been fully and competently argued before me by counsel by way of rehearing. Mr Rao submitted that this did not address that the rehearing is on the record in the Family Court. When asked what was missing from the record, Mr Rao said there was no cross-examination on Mr Turner’s financial means and on the impact of the children going to Secondary School B on Ms Turner’s job. However, on the financial means issue, the record was not closed, given the agreement for subsequent affidavits on affordability. That matter was wholly within Mr Turner’s knowledge and involved his information.27 On the impact on Ms Turner’s job, there is sufficient information in Mr Turner’s own evidence to form a view. It does not justify a rehearing on natural justice grounds. I discuss this when I deal with the merits.
26 The submissions filed on Ms Turner’s behalf in the Family Court record that Mr Turner’s proposals were still unknown as at 7 December 2022.
27 I acknowledge here, as discussed below, that Ms Turner’s position in a review of child support in February 2023 was an assertion that in 2019 Mr Turner was earning $175,000. Mr Rao said that cross-examination would provide the opportunity to question Ms Turner on this. However it was a matter Mr Turner himself could have provided evidence to the Court on. I note that Mr Turner now has 50:50 shared care of the children which may affect earning capacity.
[50]I reject the breach of natural justice ground of appeal.
Issue 3: Substantive merits of the appeal
Was the judge in error?
[51] I agree with Mr Turner that the Judge was in error to characterise as so significant in granting Ms Turner’s application that Mr Turner was making “effectively a backdoor application for a change of the children’s residence”. This followed through to the Judge’s consequential conclusions that the wrong sequence of decision making/process was being followed;28 and the Judge’s emphasis on the travel implications being of Mr Turner’s making imposed on Ms Turner. 29
[52] The case law supports that even in the case of flagrant breach of a Court order as to residence, the Court will consider the matter on the circumstances that exist at the time of the application.30 The parenting orders in place effectively back to August 2021 provided for a week-about shared care arrangement for all three children. Those care arrangements were directed by the Court with the knowledge that Mr Turner was residing in West Auckland (his move there having taken place around February 2020).
[53] The status quo was therefore that the children had had places of residence both at their mother’s home in the Sandringham/Mt Eden area and in Waitakere for a significant period. The matter ought to have been addressed against the factual position that existed and on the merits of the welfare and best interests of the children in their particular circumstances.
Substantive merits/other grounds of appeal
[54] It is appropriate that I deal with the remaining grounds of appeal in the context of my assessment of the merits.
28 Family Court Decision, above n 2, at [14].
29 The Judge said that Mr Turner had “chosen to live in an area which suits him and his partner” but then sought to “impose the implications of that on mother”: Family Court Decision, above n 1, at [14].
30 BDD v IBG [Relocation] [2007] NZFLR 1 (FC).
[55] The children should have some certainty. I do not consider the matter should be referred back to the Family Court given the inevitable delay. I note that if the matter was remitted back to the Family Court it is likely there would then need to be another update of the children’s views and position following a further period at their present schools.
[56]I consider the appeal by way of rehearing on its merits.
[57] In my view, the risk that Mr Turner will not be able to meet the Secondary School B tuition fees on a continuing basis is a key issue. Inevitably there would be a significant negative impact on the children if they needed to change schools yet again once they are settled there.
[58] Judge Burns said that there was a considerable doubt that Mr Turner could sustain the fees. This was based on annual earnings of $100,000 derived from an assumption made in administrative review of child support.
[59] On appeal, Mr Turner was entitled to provide such further evidence as he chose to on affordability of Secondary School B. Mr Turner emphasises that he has been working as an engineer since 2001. He relies on a Profit and Loss summary for his company for the period 1 April 2022 to 31 March 2023, which shows a net profit before tax of $126,870. On this basis he says he does “not anticipate any difficulties” with meeting tuition costs. He says his prior years’ earnings are not representative of his future earnings because his consulting business was in a start-up phase, having been established in April 2021. He says it is now on a positive trajectory.
[60] Mr Turner has not provided any other information in the appeal on whether there are any other means available to him, or as to his expenses. Mr Turner lives with his new partner and her teenage son. In his Family Court affidavit, he advised that she was due to have their child earlier this year.
[61] The only other information I have on estimated outgoings is information submitted in support of his child support review in February 2023. Mr Turner reported monthly expenses of $4,947 (without school fees). I was advised from the bar that
Mr Turner’s child support payments have recently been increased to $720 per month, not $99.50 as it was assessed to be at in February 2023.
[62] The current tuition fees for Secondary School B are $19,720 (Y7–8), $21,750 (Y9-10) and $22,175 (Y11-13). With Sophie following George to Secondary School B this would be at a cost of $43,500 per annum on current base tuition levels. In my view there is (at the least) a real risk as to the financial viability of Mr Turner’s school proposals. I do not consider on such an important issue, that Mr Turner’s simple statement of belief that he can meet fees in the future provides sufficient comfort, given that he is self-employed and that I do not have information on his current financial commitments.
[63] I also consider that there is a very real prospect that the change would jeopardise Ms Turner’s working arrangements as a chef at a childcare centre in Onehunga. I would not characterise this, as Judge Burns did, as necessarily rendering it “virtually impossible” for Ms Turner to get up sufficiently early to get the children to Mr Turner’s proposed schools and still maintain her employment. However, on Mr Turner’s evidence, there is at the least close to certainty that Ms Turner would regularly not make it to work by her start time of 7.30 am,31 unless she and the children were able to leave the house prior to 6.00 am.
[64] Mr Turner speculated that Ms Turner could change work hours or workplaces. This formed part of his case that the matter should be sent back to the Family Court for cross-examination.32 However, the start time is necessary and appropriate for Ms Turner to be in a position to make morning tea for 75 children by 9.00 am. Logically, starting later would also mean reduced work hours or a later end time. Ms Turner’s 3.30 pm end time allows Ms Turner to be there for the children’s activities after school apart from the one day she works until 4.00 pm. Even if Ms Turner could make these changes without impacting her employment, these matters would impact on the welfare of the children.
31 The material Mr Turner relies upon from travel summaries and Google Maps time calculations indicated that, even with no allowance for any pause at drop off time, Ms Turner would not reach her work in Onehunga until between 7.24 am and 8.05 am assuming she left home with the children at 6.30 am.
32 Because this involves a counter-factual, even with cross-examination, the Family Court would also be speculating.
[65] I now come to consideration of the children’s views and position. Mr Turner says the Judge fell into error in his characterisation of George and Sophie’s views and in declining to place any significant weight on them on the basis that this was a high conflict case and with the children seeming to “want what they think is fair”. Mr Rao submitted that the children had expressed a clear preference for Secondary School B, and George in addition had an unfavourable opinion of Secondary School A based on its size.
[66] It is correct that this is a high conflict situation. There is no question that both parents should be involved in decisions such as schooling, and that they should continue to be involved co-operatively, preferably.33 However, ongoing consultation and co-operation have not proven possible.
[67] Mr Headifen noted in his December 2022 report that the children do not find it “fair” for their father that he has significantly more driving than Ms Turner. Judge Burns concluded that the children’s perception had been influenced by Mr Turner’s frustration. I do not draw any inference on the material before me that the children’s views are unduly or improperly influenced by their father. I recognise and acknowledge their position. It is inevitable that they will have experienced their father’s frustration, and I do not find it surprising that they have come to a view on the relative equities of the position.
[68] The report of Mr Headifen tracks very helpfully George and Sophie’s experience of the schools they started this year. I have given serious reflection to Sophie’s lack of enthusiasm for her present school seen in the context of her teacher’s perspectives and report on how Sophie presents and her activities. Sophie's comments about respect in her classroom and at her school are important. However, Sophie's ability to address the class and to have confidence in the class as reported by her teachers indicate that she is indeed respected and has confidence to be able to give her views on matters, particularly amongst her peers. Sophie has said that “all her wishes would be met” at Secondary School B. Unfortunately, that is unrealistic.
33 COCA, subss 5(b) and (c).
[69] I have also considered the matters raised by Mr Turner about Sophie’s learning, but do not consider that Secondary School B will be appreciably better than Secondary School A (or Intermediate School A) for addressing this.
[70] Mr Turner accepts that there is no preference of independent school over public school in law. While it is correct that Secondary School B would provide a sound academic education, numerous extra-curricular activities and a solid base for tertiary study,34 so would Secondary School A. I agree with Mr Snedden that the two secondary schools should not be distinguished on the basis of their Education Review Office reports. They are both plainly very good schools. Any decision to move Sophie to Secondary School B now from Intermediate School A is a decision also about her secondary school.
[71] Mr Turner expressed concern for Sophie at Intermediate School A because he considered George had been subject to bullying there. The incident with George was explained at the time by the school as of a different character to bullying. Sophie’s experience of Intermediate School A referred to an event playing sport although it seems likely this was also not bullying but an incidence of the usual competitiveness of sport. George refers to an incident of bullying type conduct at Secondary School A. However that appears to have been a one-off. I accept Mr Headifen’s submission that bullying can and does occur at any school.35 He notes that cyber bullying is also prevalent, and this does not have school boundaries. I do not regard the issue of potential bullying as distinguishing between the schools proposed.
[72] I have considered the principle that a child's identity and language should be preserved and strengthened.36 Sophie’s strengths appear to lie in her creativity and her sporting and musical talents. She is not so academically inclined. These interests and talents seem to me to be catered for at her present school and her sport outside school. Secondary School B and Secondary School A will likely both have the necessary dimension for developing Sophie’s interests.
34 As Mr Turner’s counsel submitted.
35 In doing so I consider the children’s safety as required by COCA, s 5(a).
36 COCA, s 5(f).
[73] In respect to George, I set out earlier Mr Headifen’s report on his experience of Secondary School A. On the basis of Mr Headifen’s report and submissions at the hearing, it appears that George is settling in relatively well and enjoying his sport, although still expresses a preference for Secondary School B.
[74] I accept that travel time would be significantly reduced for the children when they are in Mr Turner’s care if his proposals prevailed. If the children had less driving time with Mr Turner this would increase their quality time with him and the broader family unit, as well as the community they live in at West Auckland. I do not downplay the force of this and the issue of social capital raised by Mr Turner. Yet, there is a benefit in the children only travelling every second week under Ms Turner’s application. This enhances the children’s ability to foster relationships, including existing and developing relationships in the Intermediate School A locality. I note that Secondary School B, unlike Secondary School A has no zone so children may not necessarily be local.
[75] The children’s continuity in their care, development, upbringing and relationship with their parents are secured in part by their shared parenting arrangement.37 Relevant to the current appeal, I accept that there is no presumption for continuity, with every case turning on its facts.38 However, it is relevant that there is continuity of the children's existing friendships in the area they go to school in and it is the area they have lived all their lives. Mr Headifen noted there appeared to be friends within their community that the children visit outside school hours.39
[76] In summary, I have taken into account the children’s views and given considerable thought to the travel and family time benefits involved in the competing scenarios. I have noted the children’s experiences at school and in their community. I have also considered Mr Turner’s position regarding strengthening of the family group. The school the children should attend has to be considered against the backdrop of what should be a broad enquiry into their welfare and best interests. In my view, considering all these matters, and in particular the issues and risks around the
37 Section 5(d).
38 Brown v Argyll [2006] NZFLR 705 (HC).
39 I note that Sophie referred to her mother wanting to check when she wants to go out and be involved with her friends. She has friends at the school who were at her primary school.
continued affordability of Secondary School B and impacts on Ms Turner’s work, I conclude the children should stay at their present schools.
Result and Orders
[77]The appeal is dismissed.
[78] Costs ordinarily follow the event (outcome) but I have discretion to reduce scale costs if I consider the circumstances justify this.
[79] If costs cannot be agreed, I will receive memoranda (not exceeding five pages) on behalf of Ms Turner within 20 working days and on behalf of Mr Turner within a further 10 working days. I will then determine costs on the papers unless I need further assistance from counsel.
Anderson J
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