Fraser v Wilberforce HC Wellington CIV-2011-485-000723 [2011] NZHC 1192 (5 October 2011)

Last Updated: 22 October 2011

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 WWW.JUSTICE.GOVT.NZ/FAMILY/LEGISLATION/RESTRICTIONS.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

_{CIV-2011-485-000723}

BETWEEN FRASER Appellant

AND WILBERFORCE Respondent

Hearing: 3 October 2011

Counsel: Appellant in person

Respondent in person

Dr M G Gazley for children

Judgment: 5 October 2011

_{JUDGMENT OF THE HON. JUSTICE KÓS}

[1] Mr Fraser applied to the Family Court to vary parenting orders made in 2007. He and his former wife, Ms Wilberforce have two children. The focus of the present appeal is their daughter Alice. She is now aged 13 ½ years. Alice lives with Ms Wilberforce. The 2007 orders are highly prescriptive as to the times when Mr Fraser is to care for Alice. But following Mr Fraser’s application, the Family Court Judge varied the orders to provide greater flexibility. The variation provided that “Alice shall have contact with her father at other or different times as agreed from time to time between her and her parents.” Otherwise Mr Fraser’s application failed.

[2] Mr Fraser now appeals to the High Court. His particular concern is that the variation gives Ms Wilberforce a power of veto.

FRASER V WILBERFORCE HC WN CIV-2011-485-000723 5 October 2011

[3] The Judge also directed that no further parenting applications be commenced[1]

without prior leave of the Family Court. That order too is appealed.

[4] Both parents appeared for themselves. Dr Mark Gazley appeared for Alice. My practice is to protect the anonymity of participants in Care of Children Act appeals by the use of fictitious names, rather than actual initials (which are confusing, and also enable identification). The parties consented to this approach. Accordingly:

(a) the father will be referred to as Mr Fraser; (b) the mother as Ms Wilberforce;

(c) the son as Michael; and

(d) the daughter as Alice. Those are not of course their real names.

[5] Any appeal against the decision of a Family Court Judge varying parenting orders requires careful focus on four issues:

(a) What orders were sought from the Judge in the first place? (b) What orders were made by Judge;

(c) What appeal points are raised in the Notice of Appeal?

(d) Has the appellant discharged the onus of showing that the Judge was wrong on any of those points?

[6] I will address each issue in turn, in a moment. But ultimately, and overriding all else, the determinative issue must be what is in the best interests of the children.[2]

Facts

[7] Mr Fraser and Ms Wilberforce were married in 1990. Michael was born in

1995, and Alice in 1998. The parents separated in 2002.

Prior decisions

[8] There have been a number of hearings involving this family. In March 2004 the Court considered an application under the Domestic Violence Act 1995. No protection order was found necessary however. Child care issues were dealt with in July 2004, March 2005 and November 2006.

[9] The original child care orders were that the children be with the father every second weekend, overnight on the Thursday of the alternate week and for one week in each of the school term holidays (together with separate weeks over the Christmas holiday period).

[10] At the end of 2005 supervised contact was put in place on the mother’s application as a result of concerns about the father’s health. The father had almost no contact with the children in 2006.

[11] Psychological reports on the children were provided under s 133 of the Care of Children Act 2004 in February 2004 and July 2006. The reports show the children to be bright and well-adjusted. Both parents are rightly proud of them.

[12] A psychiatrist’s report in relation to the father was also provided in June

2006. The psychiatrist identified certain psychological disorders on the part of the father, the details of which I need not repeat here. They are set out in paragraph [28] of the April 2007 decision. Mr Fraser’s psychological issues manifested before me in an intermittent inability to focus on what was truly material and what was not. I say no more about that now. What is far more important to note is three things:

(a) It is clear that the children love their father and wish to spend significant periods of time with him;

(b) The mother, Ms Wilberforce, is willing to facilitate that – which is really the key issue before me on which the father needed assurance; and

(c) Dr Gazley confirmed that Mr Fraser was a “good father”. I accept that assessment.

[13] The April 2007 orders made by the Family Court were as follows:

(a) Ms Wilberforce was to have full time care day to day of the children; (b) Mr Fraser was to have contact every second weekend from the

conclusion of school on Friday until the beginning of school on

Monday (extended as appropriate on long weekends);

(c) Specific orders were made in relation to school term and Christmas holidays;

(d) Telephone contact was to be by landline only, at such times as the children should determine, with the children initiating that contact;

(e) Mr Fraser was not to make contact with the children by any means while they were in the care of Ms Wilberforce.

I will not set out here other immaterial subsidiary orders.

Michael

[14] In the case of the elder child, Michael, the arrangements specified in the 2007 orders soon altered. It is not clear to me on the file when the arrangements changed. Doubtless things simply evolved. Ultimately that Michael ended up spending considerably more time with his father than was provided for in the orders. Mr Fraser described that as an arrangement where he had primary care. Mrs Wilberforce characterised it as much more even. The exact detail does not matter. What is important in considering an appeal focused on Alice is that an effective, practical

arrangement was achieved between the parties, in which care was determined largely autonomously by Michael himself. The decisions he made were respected by the parents. The approach they took was not unduly prescriptive. For instance, Mr Fraser imposed just two major rules: Michael must keep his father informed as to his whereabouts, and (unless Michael advises otherwise) is to be home for dinner by

6pm. Michael has a driver’s licence, the use of a car, and effectively he bases himself between the two homes. Everyone described the arrangements as working well.

[15] In short, it is clear that at an early stage Michael decided to have more contact with his father than the orders provided for. And it is also clear that his mother did not stand in his way in making these arrangements.

Alice

[16] As to Alice, the younger child, and the subject of the present appeal, the formal arrangements have been complied with far more closely. There was a period of some three months or so at the end of 2010 when, following a disagreement with her father, she chose not to have contact with him at all. But in January 2011 contact resumed.

[17] I will refer shortly to her position in relation to contact. Essentially, however, she seeks no change from the existing orders.

Application for variation

[18] In July 2010 Ms Wilberforce was about to take the children on holiday to Australia. That resulted in Mr Fraser filing applications for “Non Removal Orders”, and seeking a judicial conference. He said that such a conference was “urgently needed to resolve the existing child care situation that is in breach of existing Court orders and is not in the best interests of the children”.

I have interpreted these applications as an application to vary the existing Parenting Order to reflect the present arrangement for the children or provide different parenting orders to accord with the children’s best interests.

[20] This approach by the Judge was a fair one to take. The nature of the application is really fleshed out in Mr Fraser’s affidavit in support. Paragraph 6(c) made clear that Mr Fraser sought a hearing of the Family Court, and the appointment of “professional advisors to the Court”, “to establish the most appropriate ongoing care arrangements for the children.” It was also noted that the circumstances of the children had changed since the original orders issued in 2007.

[21] The Judge who dealt initially with the application directed that it be dealt with on an on notice basis. The minute noted:

There are current orders in place. What the father seeks is a variation of those orders.

[22] On 4 August 2010 Judge Ullrich QC directed that:

(a) Dr Gazley meet with the children and report; and

(b) Mr Fraser indicate to the Court how he wanted his application to progress.

[23] The matter came before Judge Ullrich again on 8 September 2010. At that stage the Judge directed that the application for further s 133 reports be considered only after evidence and proposals were filed by Mr Fraser. Further, he had until 22

September 2010 to file an affidavit containing his proposals for care of Alice and

Michael. As the Judge noted in her minute:

The Court cannot progress any applications until it is clear what arrangements are proposed, different from the orders that are already in place.

[24] That affidavit was provided by Mr Fraser on 23 September 2010. It set out a suggested proposal for the children, which was that Michael spend each Monday and Tuesday in his care, and every second weekend from Friday until Monday morning,

and that Alice be in his care every second weekend from Friday until Monday morning and for two other nights per fortnight.

[25] Ms Wilberforce responded to Mr Fraser’s affidavit on 12 October. In relation to Alice Ms Wilberforce indicated a willingness for Alice to remain seeing Mr Fraser every second weekend from Friday after school until Monday morning, and also to see Mr Fraser on other days if that is what she wants.

[26] On 20 October 2010 Judge Ullrich made a number of further directions. After setting out the background to the matter in some detail the Judge directed:

(a) Mr Fraser had until 17 November 2010 to file any further evidence in response to the affidavit filed by Ms Wilberforce;

(b) counsel “to assist the Court” would not be appointed;

(c) Dr Gazley’s appointment as counsel for the children was confirmed

(against the wishes of Mr Fraser);

(d) consideration would be given to obtaining a s 133 report once Dr Gazley had reported on the views of the children on parenting proposals put before the Court.

As the minute noted, its purpose was “to progress the substantive application before the Court”.

[27] A further judicial conference occurred on 24 November 2010. Mr Fraser had filed no further evidence. The Judge directed the matter be set down for a half day hearing early in the New Year, and reserved leave to Mr Fraser to file evidence up to two weeks prior to that hearing. As it happened, he did not do so.

[28] So that is the procedural background to the application, and this appeal.

[29] Dr Mark Gazley has been the Court-appointed lawyer for the children since

2003.

[30] Because it is important, I am going to set out in full his report to the Family

Court dated 11 March 2011:

[1] I met with the children this morning. My task was as contained in

Court’s minute of 24 November 2010.

To explain the present situation to the children and discuss with

Alice whether she would reinstate her arrangements with her father.

[2] I duly explained the present situation to Michael and Alice. They are both intelligent and mature. They understand what is going on for them with the Court case and the need to see me. Both are also articulate and I have no difficulty that the views they express are their own.

[3] Alice, now aged 13, reports that the arrangements with her father have been restarted (some months ago) after he apologised to her over an earlier incident involving her travel to Dunedin. She accordingly spends alternate weekends, Friday to Monday morning with her father. Michael, aged 15, continues to have his own routine where he spends equal time with his parents. It is their wishes, clearly and freely expressed, that the arrangements continue, and that they be listened to over what they want.

[4] Accordingly I would hope there are simply no issues requiring the

Court’s intervention in this family’s life.

[5] Both Michael and Alice’s relationship with father and mother appear good, and both are focusing well on school work and both enjoy and excel at sport. Mother supports the children in their views, and I would hope father does as well. The arrangements, it is suggested, are entirely appropriate, and it also allows considerable time where brother and sister are together.

[6] I have spoken to Michael and Alice about seeing the presiding Judge, but they do not wish to do so. They consider their views are apparent and that I can advance those views for them.

[7] They have also expressed the strong desire that litigation between their parents end. I have been their lawyer for some 8 years. They have had enough and I seek for Michael and Alice a ban on further applications unless leave is granted by the Court.

[31] It is clear, therefore, that Alice’s position was that the previous orders should be confirmed, that her wishes (and those of Michael) be respected, and that the litigation so far as they were concerned, cease.

[32] By the time the matter came before the Judge in March 2011, the issue of the children’s holiday with their mother was moot. So the matters before the Judge were effectively three:

(a) Should a further s 133 report be commissioned? (b) Should the 2007 parenting orders be varied?

_{(c) Should further applications be prohibited without leave?}[3]

What did the Judge order?

[33] The Family Court Judge made the following orders.

[34] First, he discharged the existing parenting orders in relation to Michael. As at March 2011 Michael was nearly 16 years of age. I have already set out the circumstances in which the parenting arrangements in relation to Michael came to change from those provided for in the 2007 orders. The new arrangements were satisfactory to all members of the family. The parenting orders made in 2007 could

not continue past Michael’s 16th birthday in any case. But they were no longer

required for Michael, and the Judge discharged them.

[35] Secondly, the Judge declined to order that a further s 133 psychological report be obtained in relation to Alice. The Judge said:

This is a case where the views of the child must be heard and respected, and in my view she deserves some respite from Family Court proceedings and assessments or interviews in respect of the same.

[36] Thirdly, having regard to (1) the fact that arrangements with Alice had varied from time to time, (2) that she was now older and more self-possessed than in 2007 (when she was 9) and (3) giving full regard to her views expressed to her counsel,

_{the Judge held:}

As far as Alice is concerned whilst I recognise there could be other and further times that she could see her father and may wish to do so again this must be done as best as she is able. I am sure that the mother will promote this at times and that the father will accept variations from time to time but to put this in an order again provides fertile ground for dispute. The order in respect of Alice is confirmed with one variation only and that is Alice shall have contact with her father at other or different times as agreed from time to time between her and her parents.

[37] Finally, the Judge prohibited further applications without leave. He said:

Alice has had enough of Court proceedings and I believe needs to be protected from unnecessary proceedings in the future. No further parenting applications may be commenced without prior leave of the Family Court.

I should note that the order is not specific as to which parent is precluded. Therefore either parent must seek leave of the Family Court before mounting an application.

What points are raised against the Judge from the Notice of Appeal?

[38] I mean no disrespect to Mr Fraser if I start by saying that his Notice of Appeal and submissions were somewhat diffuse. It is necessary to sort wheat from chaff. Having regard to the oral hearing that took place before me, the following are the essential grounds raised by Mr Fraser:

(a) The 14 March 2011 hearing should not have proceeded as a substantive consideration of his application for variation of the existing parenting orders. Instead it should have been confined to preliminary investigation of what Alice’s stance was, and whether further evidence (including expert evidence) should have been heard at the substantive hearing (Ground 1).

(b) The order enabling variation of arrangements should not have been in terms that enabled the mother to have a veto right. Rather, who should care for Alice should be determined by Alice and the parent with whom she wishes to spend time at that point (Ground 2).

(c) The ban on further parenting order applications without leave was unjust (Ground 3).

[40] Nor was there an appeal against the refusal to commission a further s 133 report. In any case, the Judge was plainly right not to do so. First, it is by no means clear that the Court has jurisdiction to call for a further s 133 report upon the variation of existing parenting orders. Secondly, even if jurisdiction exists, two reports had already been prepared in relation to the children. Thirdly, Alice was represented by counsel, who was more than adequately able to represent her views to the Court. Fourthly, it is common ground that her views are intelligent and thoughtful, and entitled to respect. Mr Fraser described her as the “sensible one” (contrasting himself, rather than her brother). Finally, given the foregoing considerations, I would regard commissioning a third s 133 report in these circumstances as both unnecessary and an unreasonable intrusion on Alice’s rights of privacy.

Has the appellant shown the Judge was wrong?

[41] This is an appeal governed by High Court Rule 20.18. It is an “appeal by way of rehearing”. That means the High Court should reach its own conclusions on the merits of the application before the Family Court Judge. But the process does not restart as if there had been no initial decision at all. The onus lies on the appellant to persuade the High Court that the Family Court Judge’s decision was wrong. Only if this Court considers the Family Court Judge was wrong is it justified

in interfering with his decision.[4]

Ground 1: procedural issues

[42] As noted earlier, Mr Fraser’s submission is that the 14 March 2011 hearing should not have proceeded as a substantive consideration of his application for variation of the existing parenting orders. Instead it should have been confined to preliminary investigation of what Alice’s stance was, and whether further evidence

_{(including expert evidence) should have been heard at the substantive hearing.}

[44] First, it is clear beyond peradventure that the decision of Judge Ullrich on 24

November 2010 was to set down the substantive application for hearing. Having considered the Family Court file, I am satisfied that there is no sound basis for Mr Fraser having read the Judge’s memorandum otherwise than in accordance with its terms.

[45] Secondly, Mr Fraser misconceived that the application for variation would result in a lengthy hearing. Something akin to the original three day hearing in which the parenting orders were made in 2007. There is no basis for such an approach being taken. What was being sought was variation of existing orders. Some flexibility from the original highly prescriptive orders was obviously appropriate. Flexibility with Michael had worked. So too it would with Alice. There was no need for an elephantine hearing to be convened, with reports and extra counsel. Common sense would suggest that. Variation hearings are normally much less time consuming than the original hearing, dependent on the array of issues arising and requiring attention. Here the issue was a straightforward one of permitting some relaxation in the original prescriptive arrangements. That was what Mr Fraser wanted, and (with some reservations and qualifications) what Ms Wilberforce was prepared to concede.

[46] Thirdly, the issue had to be sorted out. It is inimical to the due administration of justice in a matter affecting the welfare and happiness of a 13 year old for the prospect of a hearing as to her care arrangements to drag on. The application had been filed in July 2010. Judge Ullrich made clear that it must be heard early in the New Year 2011. Even then there were delays. But it would have been quite wrong for matters not to have proceeded on a substantive basis, in accordance with the 24

November 2010 decision. The best interests of Alice demanded that. [47] I dismiss the first ground of appeal.

[48] I have set out at paragraph [36] above the variation made by the Judge. It provides for Alice have contact with her father at other or different times “as agreed from time to time between her and her parents”.

[49] It is clear that this variation was imposed by the Judge in response to the father’s application for variation, to provide greater flexibility. The specific proposal Mr Fraser advanced has been set out in paragraph [24] above. The variation was designed to meet that application. It permits flexibility, provided it is agreed to by Alice and her mother.

[50] Mr Fraser makes a perhaps fair point that the effect of this is to confer a veto arrangement. Of course it is a veto possessed by each parent. I therefore spent some time in the hearing discussing the order with Mr Fraser and Ms Wilberforce. I wished to ascertain their exact position in relation to it.

[51] I now record formally in this judgment the assurances that they each gave me:

(a) Ms Wilberforce’s position is that if Alice wishes to spend more time with her father, then Ms Wilberforce will not stand in the way of that wish;

(b) Mr Fraser’s position is that if Alice wishes to spend more time with her mother, then he will not stand in the way of that either.

[52] I told each of the parties that I would record these assurances to the Court in my judgment. Both are aware that if they seek to use the varied order as a veto, that may provide a basis on which an application for leave to bring a further application could be filed in the Family Court.

[53] Mr Fraser told me that that the content of the preceding paragraph was a “great comfort” to him. I am sure that the parties will now act sensibly. Certainly they have been able to do so in relation to Michael’s arrangements.

[54] I record that Dr Gazley has described the children to me as both extremely intelligent. He said to me that they provided him with the clearest instructions he has ever received as counsel for children. And, as I have already noted, Mr Fraser described Alice as “the sensible one” in their relationship. He said that if she expressed a doubt about a proposed course of collective action, she was generally right.

[55] In this exchange and record of what occurred in the hearing this morning, we are at the heart of what is really in issue in this appeal. The reality is that it is in Alice’s own best interests that her views as to care arrangements are respected. It is clear from what I have been told that she can be trusted to decide wisely, and fairly. Some flexibility is desirable, and the parties are not to use the Family Court order (as varied) as a veto. That order provides a basis for conferral, but ultimately Alice must be allowed autonomy of decision.

[56] I dismiss the second ground of appeal, essentially because the Family Court order (as varied) must now be read in light of the assurances given to the Court.

Ground 3 – prohibition on further parenting order applications

[57] I will deal with this ground in short order.

[58] The order imposed by the Judge requiring leave for further parenting order applications is entirely appropriate. It is clear from the file that issues between the parents have trespassed unfairly on their children’s lives. It is appropriate that the Family Court exercise some control over whether further applications be made.

[59] In this respect I repeat my observation that although the varied order on its face provides a veto right to either parent, use of that right in that way may be seen to justify further application to the Court. But even in that event, the Court must

exercise a supervisory jurisdiction to ensure that children are not unduly troubled by parental sniping. Sniping that I trust will now diminish in light of the constructive approach taken at the hearing before me.

Disposition

[60] The appeal is dismissed.

[61] The parties being self-represented, there will be no order for costs.

[62] I commend Mr Fraser and Ms Wilberforce for the constructive approach they took in the hearing before me. They are fortunate that they have a daughter who is not only wise, but devoted despite the vicissitudes of this litigation. That devotion deserves complete reciprocity. Their focus now should be on Alice, not the Courts.

Stephen Kós J

Solicitors: [e-mail]

---

[1] _{By either parent.}
[2] Care of Children Act 2004, s 4(1); Kacem v Bashir [2011] NZSC 112, [2011] 2 NZLR 1 (SCNZ)

[3] This application being made by counsel for the children.

[4] Austin Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [4].