M V M HC AK CIV-2009-404-1513 [2009] NZHC 780 (9 July 2009)

  ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING
     PARTICULARS OF THE PARTIES AND THEIR CHILDREN


IN THE HIGH COURT OF
NEW ZEALAND
AUCKLAND REGISTRY
                                                                   CIV-2009-404-1513


           
    IN THE MATTER OF            an appeal of a decision under the Care of
                                            Children Act
2004

                BETWEEN                     M
                                            Appellant

                AND  
                      M
                                            Respondent


Hearing:        9 July 2009

Appearances: Mr A Laurenson
for Appellant
             Mr K Young for Respondent
             Ms C Wilson for Children

Judgment:       9 July 2009


      
                   (ORAL) JUDGMENT OF LANG J




Solicitors:
Govett Quilliam, Auckland
Young & Caulfield, North Shore City
Counsel:
Ms C Wilson, Auckland
Ms D A Watson, Auckland




M V M HC AK CIV-2009-404-1513 9 July 2009

[1]     This appeal raises an extremely
important question relating to the care of
three children by the name of S, Jk and J M. S is now 13 ½ years of age, Jk is 11
and
J is 9.


[2]     In or about March 2009 Mr and Mrs M agreed that Jk should live with Mr M,
who is a sharemilker on a farm near Maungaturoto
in Northland. They could not,
however, reach agreement regarding the care arrangements that were to apply in
relation to the two
girls.


[3]     By that stage Mrs M was living and working in Hawera, and all three
children were living with her there. Although
she agreed that J should return to live
with his father, she took the view that the two girls should remain with her.


[4]     Mr
M, on the other hand, believed that all three children should remain
together. He had looked after them in the past and he took the
view that the two girls
should return with Jk to live with him on the farm where he is living in Northland.


[5]     In a decision
delivered on 9 March 2009, His Honour Judge Boshier held that
the two girls should accompany Jk to live with Mr M in Northland. In
reaching that
decision he disturbed the existing arrangement under which all three children had
been living with their mother in
Taranaki.


[6]     Mrs M contends that the Judge's decision was wrong, and that he should
have held that the two girls should live
with her in Hawera. Mr M contends that the
decision was correct, and that it was appropriate and in the best interests of all three
children that they should live with him and his new family in Northland.


[7]     The issue that the Court is required to determine
on appeal is whether, on the
evidence before him, the Judge's decision was correct.


Background


[8]     As is commonly the case
in relation to contested care arrangements, the
present dispute has a reasonably significant background.

[9]    Mr and Mrs M married
in 1992 and eventually separated in 2001. For some
time after they separated, Mr M had predominant care of the children. In November
2004, however, the parties, with assistance from the Court, put into place a shared
care arrangement. At that stage Mr M was living
at South Head and Mrs M had
moved to Helensville. The arrangement called for the children to live with their
father and mother on
a week-about basis.


[10]   This system appears to have worked reasonably well until April 2006, when
Mr M moved to Maungatoroto
in order to take up the sharemilking arrangement that
he is still involved in. At that stage he applied to have primary care of the
children.


[11]   Mr M's application, which was opposed by Mrs M, was determined
following a substantive hearing before His Honour
Judge Twaddle on 24 July 2006.
In a comprehensive judgment delivered on 15 August 2006, the Judge concluded that
the children should
be in the day-to-day care of their mother. He also decided that
they should see their father every second weekend, and that the children
should
spend part of each school holidays with both parents.


[12]   The matter came before the Family Court again on 30 May 2008. This
followed a number of significant
events for the family that occurred in early to mid-
2008. When Judge Twaddle had heard Mr M's application in July 2006, Mrs M had
been living in a reasonably long-term relationship with a person by the name of WH.
It is clear from Judge Twaddle's decision that
an important aspect of the application
that he was required to decide related to issues in respect of Mr H and his
relationship with
both Mrs M and the children.


[13]   By May 2008, however, Mrs M and Mr H had separated. Mr H departed for
Australia, leaving Mrs
M to meet all the outgoings on the family home. She was
unable to meet the mortgage payments, and as a result her property was sold
by
mortgagee sale. This meant that she was effectively left with nowhere to live.


[14]   In order to make the best of a bad situation,
Mrs M decided to return to live
in Taranaki. She made this decision principally because of the fact that she could
count on support
from her wider family who lived in that area.

[15]   This prompted Mr M to apply for a parenting order in his favour. It also led
to an emergency application being heard before His Honour Judge Druce on 30 May
2008. The purpose of that hearing was to determine
the interim arrangements that
were to be in place until such time as Mr M's substantive application could be heard.


[16]   In an
oral decision delivered on the same date, the Judge retained primary
care with Mrs M. In doing so, however, he made reference to
a number of welfare
concerns that the case raised, and which would obviously need to be dealt with in the
context of the substantive
hearing. After that hearing the children went to live in
Hawera with their mother. That remained the position until such time as
Judge
Boshier came to hear the father's substantive parenting application on 9 March 2009.


[17]   Before dealing with the issues
that the appeal raises, it is necessary first to
determine the correct approach to be taken in deciding the appeal.


Approach to
be taken


[18]   Counsel for Mrs M filed written submissions in which he argued that Judge
Boshier's decision amounted to an exercise
of the Judge's discretion. On that basis
he submitted that this Court was required to apply the principles appropriate to any
appeal
against the exercise of a judicial discretion.


[19]   Ms Wilson, Counsel appointed as lawyer for the children, disagreed with this
approach in her helpful and comprehensive written submissions. She argued that the
present appeal is by way of rehearing. For that
reason this Court is required to reach
its own view on the merits based on the evidence given in the Court below. She
relied as authority
for this proposition the well known decision of the Supreme Court
in Austin Nichols & Co Ltd v Stichting Lodestar [2008] 2 NZLR 141.


[20]   In that case the Supreme Court said:

       [5]      The appeal court may or may not find the reasoning of the tribunal
       persuasive in its own terms. The tribunal may have had a particular
       advantage (such as technical expertise or the opportunity
to assess the
       credibility of witnesses, where such assessment is important). In such a
       case the appeal court may rightly
hesitate to conclude that findings of
       fact or fact and degree are wrong. It may take the view that it has no

       basis
for rejecting the reasoning of the tribunal appealed from and that
       its decision should stand. But the extent of the consideration
an
       appeal court exercising a general power of appeal gives to the decision
       appealed from is a matter for its judgment.
An appeal court makes no
       error in approach simply because it pays little explicit attention to the
       reasons of the court
or tribunal appealed from, if it comes to a
       different reasoned result. On general appeal, the appeal court has the
      
responsibility of arriving at its own assessment of the merits of the
       case.

[21]   Having received those submissions, counsel for Mrs M accepted
that his
initial stance had been incorrect. He agreed that, because this is an appeal by way of
rehearing, the Court needs to reach
its own view of the facts based on the evidence
given in the Family Court. That is a conclusion that this Court has now reached on
a
number of occasions: B v B HC AK CIV-2007-404-5016 14 May 2008 Duffy J; L v
R  (2009) NZFLR 573.


[22]   I therefore propose to view the matter afresh, but defer to those findings of
Judge Boshier that depended on his assessment
of the credibility of the parties.
There are also aspects of the case in which the nuances to be taken from the evidence
given at
the oral hearing are important, and I propose to give the Judge's finding in
relation to those issues appropriate weight also.


Relevant principles


[23]   In any case involving the care of children the welfare and best interests of the
children are the paramount
consideration. This follows from s 4 of the Act which
provides as follows:

       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)   ...

[24]   In determining what best serves the children's welfare and best interests the
Court is also bound to take
into account the principles enshrined in s 5 of the Act.
For present purposes, these are:

       (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 (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.

[25]   Important also in the present context is the principle contained in s 6 of the
Act.   This requires the Court to allow any
child who is the subject of a care
proceeding to be given a reasonable opportunity to express views on matters
affecting the child.
The Court must also take into account any views so expressed.


An important point


[26]   Before considering the substantive arguments
it is worthwhile to pause and
recognise an important point that is apparent from every decision that the Family
Court has been required
to make in relation to the three children. This case has
never been about bad parenting. All three Judges who have dealt with the
file have
recorded, in one way or another, their views that both parents have the best interests
of the children at heart. Both have
the ability to offer the children a warm and caring
home environment. The fact remains, however, that the children can no longer
live
with both parents no matter how much they might wish that they could do so. For
that reason, and in the absence of the parents
being able to reach agreement, it has
been necessary for a Judge to decide where the children are to live.


[27]   I make this comment
because I apprehend that Mrs M may believe that she
has lost the care of the children because of shortcomings in her parenting ability.
I
do not consider that that conclusion can be drawn from any of the decisions that the
Family Court has made to date. I also wish
to make it clear that, on my own view of
the evidence, it is clear that Mrs M is a good mother who has done everything she
can to
guide the children safely through the turbulent events that she has encountered
over the last 18 months.


[28]   This case is about
which living arrangement will best meet the interests and
welfare of the children. That is not an easy issue to decide because both
Mr and Mrs
M have always offered viable options. As a result, the case has been finely balanced
on every occasion on which it has
been before the Court. Judge Boshier noted at the
very beginning of his decision that the decision given by Judge Twaddle on 15


August 2006 had been finely balanced in many respects. He commented that the
same could be said for Judge Druce's decision in relation
to the interim care
arrangements for the children. I consider, with respect, that the same could also be
said for Judge Boshier's
decision, although he clearly took the view that Mr M could
offer the children advantages that Mrs M was unable to offer.


The views
of the children


[29]   There was no issue in this regard about Jk. Jk had expressed a clear view that
he wished to live with his
father and both parents agreed that that was the outcome
that was appropriate for him.


[30]   The Judge did not interview the children
himself. That would not have been
appropriate, because by March 2009 the children had been interviewed on numerous
different occasions
by professionals dealing with the case. Instead, the Judge had the
benefit of a comprehensive report prepared by Mr Michael Butcher,
a very
experienced psychologist who interviewed the children after they moved to Hawera.
He also had the benefit of submissions made
by Ms Wilson and her Taranaki agent,
Ms Marriner.


[31]   In his report Mr Butcher said:

       The children all want a high level
of contact with both parents, such as
       week-about contact, and an improvement in the parental relationship. Jk
       very
clearly wants to live with his father, though he has given conflicting
       information on this in the past. The girls are too
torn to choose, though S
       probably would rather be with her mother. S presents as the most
       emotionally burdened about feeling she has to choose
between her parents,
       which she keeps to herself. J is emotionally distressed about her parents and
       contact, and also
feels a need to keep her feelings to herself.

[32]   The Judge also reproduced the following paragraphs from Ms Marriner's
report
on a discussion that she had had with S when she was at Hawera High School:

       At first impression S was a completely different
girl. She looked much
       healthier, much more alive and even had some sparkle in her eyes. She
       reported that Hawera High
School was fun and interesting and in particular
       had enjoyed swimming sports. High School has house teams and she is
    
  enjoying getting into the spirit of that wearing green clothes. She reports
       that she has not missed any school days since
being at Hawera High School
       and in fact has not asked for any because she is really enjoying it.

       ...

       Her
very clear wish is to remain living with mum but to have as much
       contact with dad as possible. Ideally she would like to be
able to see him
       once a month but is realistic about the distance and cost for that.

[33]   As at 9 March 2009, therefore,
Jk clearly wanted to live with his father and J
was unable to express a view either way.


[34]   The position, however, of S, was
somewhat different. As I have said, she is
now 13 and a half years of age and is well able to express a view. In his decision
Judge
Twaddle had expressed some caution about giving too much weight to the
childrens' views. In reaching that conclusion he said:

 
     I consider I must be cautious about the weight I give to the children's views
       about where they want to live because,
as a result of a discussion with their
       mother, they have received the message that they would not see much of her
       if
they were not living with her. I do not ignore the possibility that the
       children's views have been influenced by them enjoying
the experience of
       living primarily with their mother for the first time since the parents
       separated and by the practicalities
of travel which S in particular does not
       enjoy.

[35]   I accept, however, that S appears to have consistently expressed the
view in
the past that she wishes to live with her mother. It is clear that she and her mother
have a very strong relationship. That
is a matter that Judge Boshier was required to
take into account, as is this Court.


The Judge's conclusion


[36]   Judge Boshier
concluded that Mr M's proposal that the children live with him
contained "a raft of better options" for the children. He also expressed
the view that
he had some concern about headaches and rashes that S had suffered at the end of the
previous year. This had evidently
required her to be frequently absent from school.
He also "worried" as to the anxiety that may have been absorbed by S and the
psychological
pressure that may have been unwittingly exerted on her, presumably
by Mrs M. The Judge then said:

       [45]   I have detected
from the evidence that the mother's strongly held
       views about the father, as a parent, have not been helpful, and have, for
the

       most part, been destructive. I doubt that the father's role as a guardian of the
       children is recognised sufficiently,
let alone promoted.

       [46]    My anxiety is that if S is in the care of her mother and the other two
       siblings are in
the care of their father, S may take the view even more that
       her father is less important. I worry that the degree of attachment,
which I
       find disconcerting, may grow even more with her mother and the mutual
       reliance between them.

[37]   Having
expressed those concerns, the Judge said:

       [47]    I have concluded that to split the siblings in this case should only
 
     occur as an absolute last resort. That is, if having considered all factors I
       simply cannot avoid it.

       [48]    With some understandable reluctance
I have decided to override S's
       views and promote her welfare by placing her along with her siblings into
       the car of
her father. It follows that in my view all three children should be
       in the day to day care of their father.

Decision


[38]
  I find that some of the conclusions that the Judge reached could only have
been reached on the basis of the impressions that he
formed of Mr and Mrs M during
the course of the hearing. In particular, I refer to the concern that the Judge clearly
held in relation
to the headaches and skin rashes and also S's absence from school. I
respect the Judge's conclusion that S may have been placed under
a degree of
anxiety as a result of psychological pressure that Mrs M may have unwittingly
exerted upon her. I must accept that that
was a finding that was open to the Judge
and I cannot go behind it because I have not had the opportunity to see and hear the
witnesses.


[39]   Putting those issues to one side, however, I find that there is substantial
support for the conclusion that the Judge reached.
In this regard I place considerable
weight on the evidence of Mr Butcher. He was subjected to reasonably lengthy
cross-examination
at the hearing and that, in particular, provides me with a
significant body of highly material information.


[40]   Mr Butcher's
overall view is that, ideally, the children should not be
separated from each other. He is also of the reasonably clear view that
Mr M can
offer the children a more stable lifestyle than can Mrs M. He points to the fact that

the children have lived before with
Mr M and his new family. They get on well with
his current wife, Tania, and they also relate well to her two children. They are also
familiar with the community in which he lives, and have friends within that
community. Overall, Mr Butcher regards the stability
that Mr M can offer as being a
huge advantage to the children.


[41]      Mr Butcher quite properly acknowledges that Mrs M can
provide a warm and
caring home environment. He has some concerns with the fact that, in the past, the
children have undoubtedly been
left alone for periods when Mrs M has been required
to work. He has some concerns that, even now, Mrs M may not have full insight
into the significance of this. He also says, importantly in my view, that there would
be greater emotional stability for the children
if they were to reside with their father.
He points to the fact that incidents have arisen in the past in which Mrs M has
reacted
to events in an emotional rather than a reasoned way. He believes that that is
to be contrasted with the situation in Mr M's home,
where such incidents appear to
be dealt with in a more reasoned and even-handed manner.


[42]      Counsel for Mrs M submitted that
care needed to be taken when giving
weight to this aspect of the evidence.        He pointed out that Mr Butcher had
interviewed
Mrs M and the children not long after they had arrived in Hawera. As a
result, she remained subject to stress at that time. He submitted
that those issues
were later resolved and that, by the time Judge Boshier came to hear the parenting
application in March 2009, the
situation in Hawera could properly be described as
stable.


[43]      I acknowledge that there is some force in these submissions.
Having said
that, it is reasonably clear that a number of stressors must still exist so far as Mrs M
is concerned. These include
the fact that she is undoubtedly still in a reasonably
tight financial situation. She must also still be coping to some extent with
the
relocation from Parakai to Hawera. In addition, she continues to have the stress of a
job that requires her to be away from home
for reasonably substantial periods of
time. She is also coping, no doubt, with the aftermath of the disintegration of the
relationship
with Mr H.

[44]   All of those factors suggest to me that Mrs M's home life is inevitably likely
to be emotionally less stable than that of Mr M. This is a view
that was shared to
some extent by Judge Boshier. He made the observation that there appears to be
more bitterness on the part of
Mrs M towards her former husband than is the case so
far as he is concerned.      That is entirely understandable, because Mrs M
is
undoubtedly in a far more precarious financial position than is her former husband.
In addition, he appears to be in a very stable
domestic situation whilst Mrs M is not.
In those circumstances it is hardly surprising that Mrs M may view Mr M's current
circumstances
with a degree of bitterness.


[45]   This led Judge Boshier to express his concern that, if S was placed in her
mother's care, the
relationship between S and her father may suffer in the future.
Again, I take the view that an observation of this type could only
properly be made if
one had seen and heard the witnesses. That is an advantage that the Judge enjoyed
and I do not. For that reason
I give that comment significant weight.


[46]   Reduced to its essentials, counsel for Mrs M submitted that Judge Boshier
was faced
with two equally suitable homes for the children. In those circumstances
he contended that S's views became of critical importance.
Given her consistent
wish to be with her mother, counsel submitted that the Judge was wrong to conclude
that the scales were tipped
in favour of Mr M. He contended that the Judge should
instead have given proper weight to S's views. Had he done so, he would have
granted S's wish to live with her mother.


[47]   For the reasons set out above at [40] to [44], I do not accept that it can
properly
be said that the Judge was faced with two equally suitable home situations.
Whilst both are suitable, I consider that the Judge was
correct, based on Mr
Butcher's evidence, to conclude that Mr M's home environment offered a number of
advantages over that offered
by Mrs M.


[48]   Like Judge Boshier, I acknowledge that S has expressed a consistent view
that she wishes to live with her mother.
That must be given considerable weight,
given that it comes from a girl who is now 13 and a half years of age.

[49]   The Judge
gave that factor significant weight. He said at [42] and [43]:

       [42]     The position of the oldest daughter has easily caused
me to have the
       most reflection in this case. The fundamental issues that I need to address
       are both her views, and
also the degree of attachment she has to her mother.
       As to her views I have already referred to s 6 of the Care of Children
Act. It
       is worth reinforcing that the importance of that section cannot be understated
       so far as empowering a child
of 13 ½ is concerned and being able to express
       a view on such a central subject as her caregiving arrangements.

       [43]
   A Court should not disregard such views without considerable
       caution, and any decision which does not give effect tot hose
views must be
       carefully reasoned and equally carefully considered. But in addition to that,
       is the degree of attachment
and fondness that S has for her mother and the
       possible trauma which may occur if that bond is tested by moving of
      
physical care arrangements. And yet I have to say that there are worrying
       features to both S's views and to her attachment
to her mother.

[50]   For me, the most troubling aspect of S's current position arises as a result of a
meeting which she held with
Ms Wilson on 15 June 2009. In a memorandum that
Ms Wilson filed shortly before the hearing of the appeal she said:

       5    
  S said she doesn't know what she wants to happen now and feels
               "under pressure" and said it was hard to explain.
She said she
               doesn't want to leave dad's and her new friends and she is happy
               there. She said that
she has got comfortable and all settled down and
               would also like to see mum and her old friends and go back to
               mum's. She then said it was "too hard
to choose".

[51]   The information recorded in the memorandum suggests that S is in an
impossible position. She clearly knew that
the appeal was about to be heard, and
that what she said to Ms Wilson would be conveyed to the Judge who heard the
appeal. I take
her response to be an indication that she does not wish to be the
person who makes the decision regarding her future living. That
is not surprising
because she clearly has deep love and affection for both her parents and does not
wish to hurt either one.


[52]
  Ms Wilson's memorandum goes on to record that S telephoned her on 22
June 2009, five days after the interview. She told Ms Wilson
during that telephone
conversation that she had decided that she wanted to live with her mother, but she
gave no particular reason
for this. Ms Wilson's response to this telephone call is
recorded in the following paragraph of her memorandum.

       8     Counsel
decided to leave it a week or so, and telephone S again to see
             if her view remained the same and to see if the reasoning
behind it
             could be ascertained. Counsel spoke with S again on the evening of
             01 July 2009. She told me
she still wants to live with her mum. She
             said she thought about things a lot more after the meeting we had at
    
        the office. I asked her whether she had been talking to her mother
             about it and she said no, she had spoken
to her mum about it after she
             had told me she wanted to move to her mum's. She said she did not
             fell under
any pressure from her mum or dad at the moment but that
             she felt pressure from the whole situation. S said she had decided
that
             she wanted to move to mum's even if her brother and sister stayed
             with dad.

[53]   Again, S clearly
knew that her discussions with Ms Wilson would be of some
importance so far as the outcome of the appeal was concerned. The view
that I take
of the sequence of events that Ms Wilson describes is that S's true position is most
accurately reflected in the information
that she conveyed to Ms Wilson at the
meeting on 17 June 2009. I believe that she has had time to reflect about what she
has told
Ms Wilson, and has been concerned that she was being disloyal to her
mother by not expressing a preference as to where she wanted
to live. This, in my
view, underpins the view that she has expressed in her subsequent conversations
with Ms Wilson.


[54]   In
saying this I do not mean to suggest that Mrs M has had any part to play in
these events. I believe that the only pressure on S comes
from pressure that she is
placing on herself. This is not the first time that this has occurred. Mr Butcher has
noted that the children
have consistently adopted a similar approach. They do not
wish to be disloyal to either parent, and do not wish to do anything that
would harm
the cause of either parent. As Mr Butcher observes, however, this means that the
children are accepting or assuming a
responsibility that they should not have to
accept or assume. That type of responsibility should be assumed or accepted by
adults
and adults alone.


[55]   Like Judge Twaddle, therefore, I adopt a very cautious approach to what S
told Ms Wilson during the two
telephone conversations. I prefer to place much
greater weight on what she told Ms Wilson during the interview on 17 June 2009.


[56]   Taking all matters into account, I have reached the clear view that Judge
Boshier's decision was correct. I consider that
the evidence before him and, in

particular the evidence of Mr Butcher, demonstrated that the children will be able to
enjoy advantages
living with Mr M that they would not necessarily enjoy if they
were to remain living with their mother. In particular, I have in
mind the greater
stability of Mr M's current home environment and the emotional stability to be
found there.


[57]      In reaching this conclusion I do not wish to be seen to be criticising
Mrs M in
any way. As I hope I have already indicated, this is very much a case about what is
in the best interests of the children.
It is not about being critical of the unsuccessful
parent.


Result


[58]      The appeal is dismissed.


Postscript


[59]    
 Having dismissed the appeal, I accept that S's future views need to be
carefully monitored. I would hope, however, that the disposal
of the present appeal
means that the children are not involved in any further litigation in relation to their
care in the near future.
Mr and Mrs M need to ensure that the children know that
matters have been finally decided and that, in the medium term in any event,
their
care arrangements will not be altered. I have reason to believe that Mr and Mrs M
will be able to accomplish this, because
they have been able to come to arrangements
regarding contact by mutual agreement and without the need for intervention by the
Court.


[60]      If S continues to maintain that she would prefer to be with her mother in the
future, that may give Mr M cause to reconsider
his position. I am not suggesting that
further applications to the Court should be contemplated in the short term. This is
because
I am conscious of Mr Butcher's view that, in expressing her view, S may be
motivated to address her own concerns about the effect
that her absence will have on
her mother. A decision made on that basis would not necessarily be one that was in
S's best interests.

[61]     If, however, S maintains her view that she would like to live with her mother,
the parties should give careful consideration
to those wishes. I say no more than
that.


Communication of this decision


[62]     I have now discussed with counsel the way in
which this Court's decision is
to be communicated to Mrs M and the children. I am conscious that this is a matter
that needs to be
handled with considerable sensitivity because the children are
currently spending part of the school holidays with Mrs M. I am told
that they are
now in Wellington, but will be travelling from Wellington to Palmerston North
tonight. They will then be travelling
back to New Plymouth tomorrow morning.


[63]     In those circumstances I direct that the outcome of the appeal is not to be
conveyed
to Mrs M and the children before 1 pm tomorrow. At that time I anticipate
that Ms Wilson will make telephone contact with the children
to advise them of the
outcome of the appeal. In the event that Mrs M learns of the outcome of the appeal
before Ms Wilson has had
an opportunity to convey it to the children, she is not to
mention it to the children until such time as they have spoken to Ms Wilson.


Costs


[64]     I make no order as to costs.




Lang J