MR v CR HC Christchurch CIV-20110409-001281 [2011] NZHC 1594 (8 August 2011)

Last Updated: 21 November 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 CHRISTCHURCH REGISTRY

_{CIV-20110409-001281}

BETWEEN MR Appellant

AND CR Respondent

Hearing: 5 August 2011

Appearances: P A Fairbrother for Appellant

S N van Bohemen for Respondent

C L Browne, Lawyer for Children

Judgment: 8 August 2011

_{ORAL JUDGMENT OF CHISHOLM J}

[1] After the appellant (the mother) and the respondent (the father) separated in late 2009 the mother remained in the former Christchurch matrimonial home and the father moved out. Although the three children now aged 10, eight and six years, remained in the primary care of their mother, they saw a good deal of their father.

[2] Following the earthquake on 22 February 2011 the mother and her partner took the children to a North Island town where the mother’s sister resides. In due course the children were enrolled at a primary school in that town. The mother declined the father’s request for the children to come back to Christchurch and the

_{father made application for day to day care in that city.}

MR V CR HC CHCH CIV-20110409-001281 8 August 2011

[3] By way of interim orders Judge Smith directed that the children were to be returned to Christchurch. In this appeal the mother seeks recission of those orders. On her case those orders should be replaced with an interim order for the children to stay with her in the North Island town.

[4] I am grateful to all counsel for the clarity with which they presented their cases.

Background

[5] Between late 2009 (when the parties separated) and June 2010 there was what might be loosely described as an ad hoc arrangement relating to the care of the children. They attended a local primary school, with which both parents were very satisfied. The children were in the day to day care of their mother but their father lived close to the school and was heavily involved in their lives.

[6] At a judicial settlement conference in June 2010 the father abandoned his attempt to obtain equal sharing. He conceded that day to day care should remain with the mother on the basis that he had the children for half the school holidays, every second weekend, and for weekly swimming lessons. Although that arrangement was never formalised, it was applied by the parties.

[7] The earthquake on 22 February 2011 rendered the mother’s and children’s home inhabitable. Immediately following the earthquake the mother rang the father and told him that the children were safe. After that she, her partner, and the children, left Christchurch. Following a temporary stay in other places they went to the North Island town, where they initially stayed with the mother’s sister.

[8] On the Judge’s findings the mother did not tell the father she had taken the children to the North Island town and this led to a desperate search on his part. The first contact between the father and the children was on 5 March 2011 and on the Family Court Judge’s findings it was not until 9 March 2011 that the father became aware that the children were in the North Island town and had been enrolled at a

local school. The father was strongly opposed to the children remaining in the North

Island town and wanted them back in Christchurch.

[9] On 11 March 2011 the father made a without notice application for day to day care of the children in Christchurch. The Family Court required the application to be on notice and appointed Ms Browne to represent the children. Through Ms Browne the children began to have telephone contact with their father.

[10] Because school holidays were approaching the father made a further without notice application for contact over the holidays. On 12 April 2011 Judge Moss made an order on the papers that the father was to have contact with the children from

18 to 25 April 2011. There was no condition specifying where this should occur. It is common ground that the parenting order issued by the registrar was incorrect and did not reflect the intention of Judge Moss (which was to confine the order to contact over the holiday).

[11] When the father arrived at the North Island town on 18 April 2011 to pick up the children there was a scene. It involved the father, the mother, and the mother’s partner, and occurred in front of the children. Ultimately the differences were resolved and the children were taken back to Christchurch by their father.

[12] Until May 2011 the indications were that the mother and children would return to Christchurch, it being anticipated that this would probably be at Queen’s Birthday weekend in June. However, at a judicial conference in May 2011 counsel for the mother indicated that she no longer intended to go back to Christchurch. Subsequently the mother sought an order for day to day care of the children in the North Island town.

[13] Having spent some time at her sister’s home the mother has now obtained rented accommodation in Hawkes Bay. While the relationship with the partner, is continuing it seems that at the time of the hearing in the Family Court the mother was not actually living with him. However, I was informed from the Bar that they are now together.

[14] Last month the father had contact with the children in both the North Island town and Christchurch. There has also been telephone contact.

Family Court decision

[15] At the interim hearing on 1 June 2011 Judge Smith had the benefit of affidavit and vive voce evidence from both parents. The parents were extensively cross-examined. In her reserved decision delivered on 17 June 2011 Her Honour made orders which required the children to return to Christchurch where they were to be in the day to day care of the father unless the mother returned to Christchurch, in which case there was to be shared care. The decision runs into 94 paragraphs.

[16] After traversing the law Judge Smith made findings as to credibility. She found the father to be a highly impressive and credible witness and the mother neither impressive nor credible. While the Judge did not entirely discount the mother’s evidence she “largely preferred father’s evidence”.

[17] Amongst the conclusions reached by the Judge were these:

(a) Apart from obtaining shelter after the earthquake there was no compelling long term reason for shifting to the North Island town. But the children had settled well there.

(b) The mother had not looked for housing in Christchurch with “any drive at all”

(c) When the Judge had asked the mother at the hearing whether she would return to Christchurch if the children were ordered to return there was a long pause following which the mother indicated that she did not know.

(d) There would be no difficulty in the children returning to their former Christchurch school which was now open. That school had been, and would be, good for them.

(e) The mother had over emphasised “undue pressure, distress and costs”

to her and the children if they returned to Christchurch.

(f) If the children remained in the North Island town the father would be

“unlikely to visit them at all frequently, easily or readily”.

(g) It was difficult to assess the validity of the mother’s expressed trauma and concern about returning to Christchurch. But the Judge accepted that the mother had suffered a trauma as a result of the earthquake.

(h) The father was well equipped to care for the children in Christchurch and would be supportive of the mother’s role. On the other hand, if the children remained in the North Island town the father’s ability to maintain a reasonable relationship with the children would be at risk.

(i) Although the Judge had taken the children’s views into account, she had given them little weight. That reflected that their preferences were “not reasoned” and had been influenced by the circumstances the children had lived through since the earthquake. It also reflected their age and maturity. Any suggestion that the children would be traumatised by being in, or returning to, Christchurch “fell well short on the evidence”.

[18] The Judge considered that of the mandatory matters set out in s 5, those in paragraphs (a), (b), (c) and (e) were particularly relevant, and that:

[79] Despite Mother’s suggestion that there is a new status quo and settlement in [the North Island town] I entirely disagree. The continuity of the children’s arrangements in terms of a familiar environment being Christchurch, [the Christchurch] school, the company of their father, grandfather and Mother (if she seeks to return) points to a need for them to return to the Christchurch area.

On the other hand, the Judge considered that if the children remained in the North Island town the arrangement that had been in place before the earthquake would be severed, and that the move to that town had created instability, not stability, in the children’s lives.

[19] With reference to s 5(e) the Judge commented:

[83] The real concern for me under section 5(e) is that these children need to be protected from psychological violence from both of their parents. In particular, I am most concerned that Mother’s current behaviour has tendencies to undermine, estrange or even alienate the children’s relationship with their father in the ways I described above. Giving effect to section

5(e)’s mandatory requirements, a return to Christchurch would be a better option to reduce the risk of such ongoing exposure to their mother’s behaviours.

[84] There is also some inherent wrongness of a parent unilaterally relocating and seeking to rely on the new environment they established by claiming it a new status quo arrangement which is exactly what Mother did, albeit to provide some safety for the children. That was permissible on a short term basis but not now.

[20] The Judge went on to say that the ongoing aftershocks in Christchurch, together with the resulting disruption and distress, were relevant factors. She accepted that there was some risk. However, she was of “the very firm view”, that the children’s interim welfare would be “entirely” served by returning to Christchurch pending outcome of the substantive proceeding.

This appeal

[21] Five primary grounds of the appeal have been advanced by the mother. It is alleged that Judge Smith:

(a) Failed to regard the welfare and best interests of the children as the first and paramount consideration, having regard to all the circumstances, including that this was a short cause hearing.

(b) Placed insufficient weight on the views of the children.

(c) Failed to properly assess and balance risks to the children’s safety by: (i) Placing undue weight on the possibility of alienation; and

(ii) Failing to properly consider the safety of the children.

(d) Failed to take proper account of the principle that there should be continuity in arrangements and the children’s relationships with their family should be stable and ongoing.

(e) Was not qualified to evaluate the level of stress caused to the mother and children by the February earthquake and failed to give proper weight to that matter.

[22] Underlying each ground of appeal is the theme that the safest course in this case would have been to leave the children in the North Island town until the matter can be properly explored and determined at the substantive hearing. Ms Fairbrother argued that the Court erred by exposing the children to the risk of two moves if the ultimate decision is that they should stay in the North Island town. On the other hand, she argued, another few months in the North Island town would not matter. Ms Fairbrother also claimed that the Judge was not equipped to reach the conclusions she had at an interim hearing and in some cases those conclusions were plainly wrong. Counsel also claimed that it was not appropriate for the Judge to “come down hard on the mother” in the hope that this would force the mother back to Christchurch.

[23] Through Mr van Bohemen those allegations were strenuously denied by the father. He emphasised the marked contrast between the situation prevailing before the earthquake and that prevailing after it had occurred: before the earthquake there was extensive contact with both parents; following the earthquake there had been very limited contact with the father. The submission for the father was that the Judge was right to restore the status quo by requiring the children to return to Christchurch. In truth, submitted Mr van Bohemen, the only thing that would be different when the children returned to Christchurch was that they would live in a different house.

[24] During the course of his submissions Mr van Bohemen drew attention to three recent Family Court decisions in which there had been an order for children who had been taken away from Christchurch following the earthquake to return to

_{the city. Those decisions were MEB v LMFJ}[1]_{, DM-CNF v NDF}[2] _{and MEG v NVD}[3]_.

While Mr van Bohemen accepted that the mother could not be criticised for taking the children away from Christchurch after the earthquake, he submitted that she could be criticised for not returning now that things had settled.

[25] Ms Browne, counsel for the children, has interviewed the children and provided a report in relation to those interviews. She also provided helpful written and oral submissions. Ms Browne concluded that the welfare and best interests of the children would be promoted by the orders made by Judge Smith. She also expressed concern about continuing and unnecessary exposure of the children to the details of this litigation.

Appellate principles

[26] Ms Fairbrother suggested that this Court is fully entitled to substitute its views for those of the Family Court whether they concern law or fact, and she encouraged the Court to do so. In response Mr van Bohemen claimed that counsel for the appellant had gone too far. He suggested that this Court should only interfere if it considered that the decision of the Family Court was wrong and that this Court should also keep in mind that the Family Court Judge had the advantage of seeing and hearing the parents give evidence.

[27] I adopt the appellate approach described in Kacem v Bashier[4] in which

Blanchard, Tipping and McGrath JJ stated:

... on a general appeal of the present kind the appellate court has the responsibility of considering the merits of the case afresh. The weight it gives to the reasoning of the court or courts below is a matter for the appellate court’s assessment. ...

I acknowledge, of course, that when arriving at findings of credibility Judge Smith had the advantage of seeing and hearing the parties.

_{[28] Now I consider the five grounds of appeal.}

Ground 1 - children’s welfare and best interests

[29] This ground of appeal has two separate aspects: first, the welfare and best interests of the children; secondly, the interim nature of the hearing.

[30] Starting with the first aspect, the allegation on behalf of the mother is that the Judge failed to regard the welfare and best interests of the children as the first and paramount consideration as required by s 4 of the Care of Children Act 2004. Amongst other things Ms Fairbrother suggested that this had come about because the Judge had misconstrued the status quo. In fact, she submitted, this was represented by the children being with their mother, which had been the case throughout. Ms Fairbrother argued that there could never be a return to the Christchurch status quo because the former matrimonial home has been destroyed and things will never be the same again in that city. She submitted that if the Judge had properly applied s 4(1) the Judge would have concluded that the welfare and best interests of these children would be best served by them staying with their mother in the North Island town.

[31] I am satisfied that the Judge correctly directed herself as to ss 4 and 5 of the Act. She mentioned the primacy of the welfare and best interests of the children on numerous occasions. It can be safely inferred on the face of the decision that this governed her approach. No error has been demonstrated.

[32] There can, of course, be arguments and counter arguments as to what constituted the status quo. Ultimately, however, it is a matter of judgment. While others might disagree, it seems to me that there is strong logic behind Judge Smith’s conclusion that the status quo was represented by the pre-earthquake situation. Certainly I have not be persuaded that her view was erroneous. In any event, it is only one of the considerations that fell to be assessed and balanced in this case.

[33] The other aspect relates to the interim nature of the hearing. Ms Fairbrother argued that the time frame leading up to the hearing and the limited evidence available meant that the family court could not possibly be adequately informed. She noted that there were no specialist reports relating, for example, to the effect of

the earthquake on the mother and children, the father and mother’s parenting ability, whether there was alienation of the children, and their attachment to each parent. Ms Fairbrother submitted that there was also an absence of non-expert evidence on various other matters.

[34] Obviously the Family Court had the necessary jurisdiction to make interim orders. Judge Smith explained her approach:

[6] In my view, the correct approach at an interim hearing remains that as outlined in Sime v Redshaw [2005] 2 FRNZ 918. By necessity an interim hearing is urgent and often presented as a narrower inquiry than a substantive hearing. The Court is hampered by the lack of full testing of the evidence and by necessity does not often involve the ability for the parties’ counsel to make complex inquiries or undertake significant evidence gathering or meaningful testing of the evidence. Those constraints do not, however, fetter the ultimate requirement of the Court to apply the welfare principle accordingly in a paramount way in the circumstances. It is only the practical circumstances in which an application for an interim order comes before the Court that provides any additional or potential fetter.

Having made those observations the Judge reminded herself that irrespective of the interim nature of the fixture, the Court’s consideration of matters in s 5 was not obviated.

[35] No error in the Judge’s approach has been demonstrated. The reality is that interim orders are often sought at short notice and on limited information because it is not feasible to wait until a substantive hearing can be convened. In this case Judge Smith had the benefit of hearing viva voce evidence from both parents and cross-examination by experienced counsel. She also had the benefit of the views expressed on behalf of the children by an equally experienced lawyer. Of itself the interim nature of the hearing did not preclude the Family Court Judge from making interim orders.

[36] The first ground of appeal fails.

Ground 2 – children’s views

[37] It is alleged that the Judge gave insufficient weight to the children’s views.

Ms Fairbrother stressed the children’s concerns about the possibility of being

separated from their mother and returning to Christchurch. She argued that the

Judge should have given those concerns much more weight.

[38] Section 6(2) requires a child to be given reasonable opportunities to express views on matters affecting the child. It also directs that any view the child expresses (either directly or through a representative) must be taken into account. I am satisfied that the children’s views were properly taken into account in this case. The weight to be given to them was for the Judge to assess.

[39] Counsel for the children does not take issue with the approach adopted by the Judge in relation to the children’s views, or the weight she gave those views. Nor do I. This ground of appeal also fails.

Ground 3 – alienation and safety

[40] Ms Fairbrother argued that undue weight was given by the Judge to the possibility of alienation. She submitted that there was no evidence of alienation before the earthquake, nor was there evidence that there would be ongoing alienation if the children remained in the North Island town with their mother. Counsel also noted that Judge Smith had accepted that the children’s mother was traumatised by the earthquake. She submitted that the Judge had failed to properly factor that aspect into her analysis of the mother’s actions following the earthquake.

[41] When concluding that there would be a risk to the children’s continued relationship with their father if the children remained with their mother in the North Island town, the Judge relied on eight separate factors. On the evidence before the Judge some of those factors would appear to be irrefutable and the conclusion reached by the Judge could be described as inevitable. It is now approaching six months since the children left Christchurch. Information provided from the Bar indicates that it would be another four months from the time that all documentation is completed before the substantive fixture could take place. The possibility of such lengthy exposure to alienation must be a weighty consideration.

[42] As to the wider risk to the safety of children, the Judge recognised that there will be some risk. But that had to be kept in perspective and weighed against all other relevant considerations. I do not have any sound reason to differ from the Judge’s view that the risks arising from a return to Christchurch are outweighed by other factors, especially the risk of alienation from the father.

Ground Four – continuity and stability

[43] Section 5(d) requires the Court to take into account:

(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:

As noted by Judge Coyle in MT v AK,[5] the words “and strengthened” should not be

overlooked.

[44] For the mother, Ms Fairbrother emphasised that the interim order will require the children to leave the care of their mother who has been their primary caregiver throughout; apart from weekends and a few school holidays the father has never had primary care; the children have now been in the North Island town for almost six months where they are well settled and are able to enjoy all the extra-curricular activities that they enjoyed in Christchurch before the earthquake; there is no certainty that those activities would continue if they came back to Christchurch; their Christchurch home is uninhabitable; and there is no ability to return to the status quo as it was.

[45] Again I am satisfied that the Judge carefully weighed s 5(d). Having seen and heard the father the Judge was satisfied that the father was capable of properly caring for the children and that he would encourage contact between the children and their mother. Obviously the Judge’s underlying hope and objective was that the mother will return to Christchurch. I do not see anything wrong with that. Undoubtedly it would be in the best interests of these children to have both parents

_{in the same locality. On the other hand, leaving the children in the North Island town}

with their mother would be very unlikely to strengthen their relationship with their father. Indeed, the Judge thought that it would sever their relationship with the father and lead to instability, not stability.

[46] This ground of appeal has not been made out.

Ground Five – level of distress

[47] The thrust of this ground is that there was insufficient evidence for the Judge to assess the level of distress for the mother and children if they were required to return to Christchurch. It was argued that this could only be properly assessed at a substantive hearing with the benefit of expert and other evidence. Ms Fairbrother emphasised that the Judge had accepted that the mother had been traumatised by the earthquake and, she submitted, the Judge should have paid much more attention to the implications of that finding.

[48] Given the paramountcy principle in s 4(1), the primary consideration is the likely level of distress to the children if they have to return to Christchurch, rather than any impact on the mother. The Judge’s conclusion that any distress on the part of the children had been overstated is consistent with Ms Browne’s report. It is also consistent with the other cases cited by Mr van Bohemen where children were required to return to Christchurch. I am not in a position to differ from the Judge’s assessment about distress to the children.

[49] Of course there will be distress on the part of the children if they are parted from their mother. The Judge was well aware of that. However, whether or not that happens lies in the hands of the mother. The Judge concluded that there is now no compelling long term reason for the mother to remain in the North Island town and that any distress that the mother might suffer at moving back to Christchurch should give way to the welfare and best interests of the children. This would enable the children to return to the their old school in Christchurch where they could be supported by both parents and their grandfather.

[50] I have not been persuaded that there is any substance in this ground of appeal.

Result

[51] The appeal is dismissed.

[52] Having heard from counsel the appropriate course is for costs to be reserved. [53] Pursuant to s 139 of the Care of Children Act 2004, any report of this

proceeding must comply with ss 11B – 11D of the Family Courts Act 1980.

Solicitors:

P A Fairbrother, Fairbrother Family Law, PO Box 646, Napier 4140

S N van Bohemen, PO Box 6230, Upper Riccarton, Christchurch 8442

C L Browne, Cunningham Taylor, P O Box 1003, Christchurch

---

[1] MEB v LMFJ FC Dun FAM-2011-012-000323 [17 May 2011]
[2] _{DM-CNF v NDF FC Chch FAM-2011-009-000698 [29 March 2011]}
[3] _{MEG v NVD FC Chch FAM-2006-009-000568 [13 June 2011] (alt cit G v D)}

[4] Kacem v Bashir SC 37/2010;[2010] NZSC 112

[5] MT v AK FC Dun CRI-2009-012-000413 22 September 2009