B v P [2012] NZHC 1492 (28 June 2012)

Last Updated: 4 July 2012

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 WANGANUI REGISTRY

CIV-2011-483-000002 [2012] NZHC 1492

IN THE MATTER OF the Care of Children Act 2004

BETWEEN B Appellant

AND P Respondent

Hearing: 18 June 2012

Counsel: K N Crooks for Appellant

R R M Simon for Respondent

H M Hipango - Counsel for Children

Judgment: 28 June 2012

In accordance with r 11.5 I direct the Registrar to endorse this judgment with the delivery time of 4.00pm on the 28th day of June 2012.

_{RESERVED JUDGMENT OF COLLINS J}

Introduction .................................................................................................................... [1]

Family Court judgment.................................................................................................. [3] Principle (a) – That the parents should have primary responsibility for, and be encouraged to agree to, arrangements for the children’s care, development and upbringing .................................................................................................................. [12] Principle (b) – Continuity and care arrangements, and children’s relationship with family should be stable and ongoing (in particular the child should have an ongoing relationship with his or her parents) .......................................................................... [13] Principle (c) – There should be ongoing consultation and co-operation between the

B V P HC WANG CIV-2011-483-000002 [28 June 2012]

parents ........................................................................................................................ [14] Principle (d) – Relationship with family and whanau should be preserved and strengthened ............................................................................................................... [15] Principle (e) – The children’s safety must be protected, and they must be protected from all forms of violence ................................................................................................... [16] Principle (f) – The children’s identity (including cultural, language and religious) should be preserved and strengthened ....................................................................... [17]

The appeal ..................................................................................................................... [20] Leave to appeal .......................................................................................................... [20] Determining an appeal of this nature......................................................................... [24] Additional evidence .................................................................................................... [28]

Summary of submissions.............................................................................................. [42] Ms B’s case ................................................................................................................. [43] Mr P’s case ................................................................................................................. [44] The children’s case ..................................................................................................... [45]

The children .................................................................................................................. [48] Analysis.......................................................................................................................... [49]

Interests of the children .............................................................................................. [49]

Principle (a) – That the parents should have primary responsibility for, and be

encouraged to agree to, arrangements for the children’s care, development and upbringing .................................................................................................................. [55] Principle (b) – Continuity and care arrangements, and children’s relationship with family should be stable and ongoing (in particular the child should have an ongoing relationship with his or her parents) .......................................................................... [57] Principle (c) – There should be ongoing consultation and co-operation between the parents ........................................................................................................................ [59] Principle (d) – Relationship with family whanau should be preserved and strengthened

.................................................................................................................................... [60]

Principle (e) – The children’s safety must be protected, and they must be protected from all forms of violence ................................................................................................... [63]

Principle (f) – The children’s identity (including cultural, language and religion)

should be preserved and strengthened ....................................................................... [65]

Perth............................................................................................................................... [66] Formal orders ............................................................................................................... [69]

Introduction

[1] In a comprehensive reserved judgment dated 19 November 2011 the Family Court at Whanganui made parenting orders under s 48 Care of Children Act 2004 (COCA) granting the appellant (Ms B) day-to-day care of the parties’ children:

J P born 25 March 2001; and

M P born 3 August 2002.

It was a term of the parenting order that the respondent (Mr P) have reasonable access to the children, provided that access was supervised by one of his parents.

[2] In the same judgment the Family Court declined Ms B’s application made pursuant to s 44 COCA to relocate the children to Perth. She now appeals this aspect of the judgment. The appeal is opposed by Mr P.

Family Court judgment

[3] In describing the background to the proceedings, the Family Court Judge noted that:1

Ms B and Mr P began living together in 1999. Their relationship became more intermittent from 2002 and they separated in 2007. Since the children were born, Ms B has been primarily responsible for their care. Mr P has spent time away from the family in prison. In 2003, when the children were two and one, he spent three months in prison for driving whilst disqualified. In 2005, when the children were four and three, he spent four months in prison for possessing cannabis and between 2008 and February [2011], he was in prison for two years eight months for serious violent offending. While Mr P was in prison Ms B and the children visited him regularly.

[4] The Family Court Judge noted that Ms B also had a criminal conviction for offending that pre-dated the birth of the children, and that in about 2003 she was convicted of dangerous driving when she drove past a school at 70 kilometres per hour.

[5] In his findings in relation to Ms B the Family Court Judge said:

(1) that she gave her evidence “... in a clear, straightforward and matter of fact way” and that “[h]er evidence was reasonable and consistent”.2

1 DDP v JEB FC Wanganui FAM-2010-083-486, 19 November 2011 at [2].

(2) that while her “... parenting style can be laissez-faire”, she can also

“... be assertive if required”.3

(3) that her approach to parenting is “... child focused and she is aware of,

and can meet, the physical and emotional needs of the children”.4

(4) that she understands “the need for children to have a relationship with their father and [that she] has worked hard to foster and develop this, for example by regularly taking the children to see him when he was in prison, encouraging contact with him through his parents and letting him go to her home despite his objectionable behaviour

towards her”.5

(5) that she “understands the importance of the children’s Maori identity to them and has encouraged them to learn more of their cultural heritage ...”.6

(6) that Ms B’s motives for wanting to relocate to Perth are proper and child-focused.7

[6] The Family Court Judge made a number of findings in relation to Mr P. The principal findings were:

(1) That when giving his evidence “[h]e was frequently evasive or

refused to answer questions”.8

(2) Some of his evidence was unconvincing “... he was prone to exaggeration ... . On occasions he tried to dominate counsel by interrupting and asking questions and on other occasions he appeared argumentative, controlling and arrogant”.9

(3) That during his relationship with Ms B, Mr P “acted in a manipulative, dominating, [and] controlling way towards her”.10

(4) That “while he had not used significant physical abuse against [Ms B]

he had used sexual abuse ...”.11

(5) That he is a “self centred person who, while professing to love the children, lacks self discipline and has not been able to put the children’s needs before his own”.12

(6) That he is “a poor role model for the children.13

(7) That he takes pride in physical violence (for example saying to JP that

he had “smashed” a person in a fight)”.14

(8) That he had “not been willing or able to discuss important matters relating to the children or life in general”.15

(9) That he did not take “responsibility for his behaviour”.16

(10) That he did not support the children’s interests at school.17

(11) That he made promises to the children which he did not keep.18

(12) That “rather than nurture [the children] he lacks insight into their

needs and he has created for them situations of uncertainty and confusion which has caused them to lack trust in him”.19

10 _{At [35].}

11 _{At [35].}

12 At [46].

(13) That “[i]n general, he falls well short of being a competent parent”.20

(14) That it is “unlikely [he] will be able to make significant changes to his

behaviour in the foreseeable future”.21

(15) That since his release from prison in February 2011 “Mr P has been involved in smoking drugs and selling marijuana which, quite apart from being a poor role model for his children, puts him at risk of further Court proceedings and possible imprisonment”.22

(16) That he continues to be involved with the Tribesmen gang “and there is a significant risk that he could associate with the [Tribesmen] again once his parole ends”.23

[7] The Family Court Judge made the following pertinent findings in relation to the children:

(1) He accepted the evidence of Mr Watson, a Court appointed psychologist who said that “if children are exposed to manipulative, controlling behaviour, they may tend to mimic that behaviour themselves”.24

(2) That any parental gang involvement was “a high risk” for the

children.25

(3) That the children had been exposed to Mr P’s drug use and dealing.26

(4) That “... there are some worrying signs in JP’s behaviour. He can be angry and aggressive at school and verbally aggressive at home and with his [parental grandparents] if he does not get what he wants.

Being spoilt by his [paternal grandparents] is likely to further empower him and there is a significant risk that he will become self centred, undisciplined, non-compliant and manipulative (traits displayed by his father) unless his parenting includes clear and consistent behaviour, expectations and boundaries.”27

(5) That JP’s “attachment to his father was becoming more tenuous”.28

(6) That MP’s “behaviour also indicated a deteriorating attachment to her

father”.29

(7) “... that the children’s strongest attachment is to their mother. ...

Their attachment to their father has weakened considerably since his release from prison. His apparent lack of interest in them, [and] broken promises ... have caused them to mistrust him ... .”30

[8] The Family Court Judge explained that Mr P’s parents live in Whanganui. There is no doubt they have until very recently played an important role in the children’s lives. The Family Court Judge accepted Mr Watson’s assessment that “JP has a significant attachment to his Koro D [Mr P’s father] (Mr Watson said there is

‘quite a respect and trust there’; on a scale of one to ten the strength of their relationship was about six or seven).”31

[9] In his judgment the Family Court Judge accepted that Ms C (Mr P’s mother) and her husband took the children to family gatherings in Turangi, Kawerau and Hastings. During the Ratana celebrations in January they take the children to Ratana Pa for a week. The Family Court Judge accepted the children’s paternal grandparents had “... paid sport and school fees for the children, bought clothes and

food for them and helped support them”.32

[10] Ms B’s mother also lives in Whanganui, as does Ms B’s sister. The children have an excellent relationship with them both.33 Ms B’s father lives in Perth with his partner. In addition, Ms B has two paternal aunties and uncles who live in Perth. Mr B’s direct contact with the children had been limited to very occasional visits, the longest of which had been a two week holiday in 2008.34

[11] It was against this background that the Family Court Judge applied the principles set out in s 5 COCA. It is convenient to explain his Honour’s reasoning in relation to each of the principles by reference to each principle that his Honour focused upon.

Principle (a) – That the parents should have primary responsibility for, and be encouraged to agree to, arrangements for the children’s care, development and upbringing

[12] The Family Court Judge held:

(1) That the relationship between Ms B and Mr P needed to improve.35

(2) That Ms B and Mr P needed to consult about guardianship issues.36

(3) If Ms B and the children relocated to Perth Ms B and Mr P “... would not communicate at all and there would be no consultation about guardianship issues”.37

(4) Although Mr P had not shown a responsible attitude towards consultation, his behaviour had not been so serious as to warrant his removal as a guardian”.38

Principle (b) – Continuity and care arrangements, and children’s relationship with family should be stable and ongoing (in particular the child should have an ongoing relationship with his or her parents)

[13] The Family Court Judge found that if Ms B and the children relocated to Perth “... there would be a very serious loss of ability for the children to interact with their father, paternal grandparents, maternal grandmother and maternal aunt”.39 The Family Court Judge recognised that to some extent the consequences of relocation could be modified by methods of communication such as Skype. His Honour said:40

the children would have to adopt to a new environment, a new school and make new friends. There is a lack of detailed information about the proposed schooling and living with their maternal grandfather and his partner in an untried situation.

Principle (c) – There should be ongoing consultation and co-operation between the parents

[14] The Family Court Judge reiterated his earlier conclusion that if Ms B and the children relocated to Perth “the opportunities for consultation and cooperation between Ms B, Mr P and members of the children’s extended family would be significantly reduced.41

Principle (d) – Relationship with family and whanau should be preserved and strengthened

[15] The Family Court Judge reasoned that if the children remained in Whanganui their relationship with their father and extended families would be preserved and strengthened because those people would be encouraged to participate in the children’s care, development and upbringing.42 Conversely, his Honour held that if the children relocated to Perth it was difficult to see how their relationships with family who remained in New Zealand could be strengthened or how those people

_{could meaningfully participate in the children’s care, development and upbringing.}43

39 At [101].

Principle (e) – The children’s safety must be protected, and they must be protected from all forms of violence

[16] The Family Court Judge considered that there was no serious risk to the children’s physical safety. He did, however, acknowledge “some risk” to their emotional safety arising from their exposure to verbal conflict between Mr P and his parents and through him being a poor role model.44

Principle (f) – The children’s identity (including cultural, language and religious)

should be preserved and strengthened

[17] The Family Court Judge found that the children’s Maori heritage would be preserved and strengthened if they remained in Whanganui. He was not so certain that their heritage would be preserved if they moved to Perth and that there was “considerable risk” that it would not be strengthened if the children relocated to Perth.45

[18] The Family Court Judge recognised that the children wanted to move to Perth. In his assessment however, the children’s views could not be given significant weight.46

[19] In reaching his conclusion the Family Court Judge recorded that he had sympathy with Ms B’s position. However, on considering the s 5 COCA principles and other relevant factors the Family Court Judge said that he was “not satisfied that the advantages for the children relocating to Perth outweighed the advantages to them remaining in New Zealand”.47

The appeal

Leave to appeal

[20] The leave of the High Court is required to appeal a relocation decision of the

Family Court.48

[21] The decision as to whether or not Ms B and the children should be able to relocate to Perth may prove to be one of the most profound decisions that will affect their lives. It is a decision which has fundamental consequences for the parents as well as the children.

[22] In ACCS v AVMB49 Panckhurst J said that it was “unthinkable” that a decision involving the relocation of a child from Christchurch to London should not be “susceptible of appeal to [the High Court]”.50

[23] It is equally “unthinkable” that the decision declining Ms B and the children the ability to relocate to Perth should not be reconsidered on appeal by the High Court. Accordingly, leave is granted to Ms B to appeal the relocation decision of 19 November 2011.

Determining an appeal of this nature

[24] An appeal of this nature is conducted as a rehearing pursuant to s 143(4) COCA, and s 75 District Courts Act 1947. This Court is not bound to accept the Family Court’s findings of fact and is entitled to exercise any power or discretion available to the Family Court at first instance. The Court must exercise its own judgement but, where appropriate, the Court may give weight to the assessments

_{made by the Family Court.}

48 Care of Children Act 2004, s 143(2).

[25] In Austin, Nichols & Co Inc v Stichting Lodestar51 the Supreme Court said that when considering an appeal by way of rehearing from a decision of an Assistant Trade Marks Commissioner, the High Court is required to:

... come to its own view on the merits. The weight it gives to the decision of the Commissioner is a matter of judgment [sic]. If the High Court is of a different view from the Commissioner and is, therefore, of opinion that the Commissioner’s decision is wrong, it must act on its own view.

[26] The Supreme Court went on to say:52

Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion is an assessment of fact and degree and entails a value judgment [sic]. If the appellate court’s opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ. In such circumstances it is an error for the High Court to defer to the lower Court’s assessment of the acceptability and weight to be accorded to the evidence, rather than forming its own opinion.

In the present appeal there was no basis for caution in differing from the assessment of the tribunal appealed from. The case entailed no question of credibility. It turned on a judgment [sic] of fact and degree, not the exercise of discretion entrusted to the tribunal. We are of the view that the Court of Appeal was not correct to suggest that, because the decision turned on a value judgment [sic] apparently open to the Assistant Commissioner, “the High Court Judge ought not to have embarked on a reconsideration of the issue without considering, and giving weight to, the Assistant Commissioner’s conclusion”. The High Court Judge was obliged to reconsider the issue. He was entitled to use the reasons of the Assistant Commissioner to assist him in reaching his own conclusion, but the weight he placed on them was a matter for him.

[27] A similar approach should be taken by the High Court when conducting an appeal from the Family Court by way of rehearing. This was confirmed by the Supreme Court in Kacem v Bashir when the Supreme Court said:53

... the important point arising from Austin, Nichols is that those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion involves an assessment of fact and degree and entails a value judgment.

51 _{Austin, Nichols& Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [3].}

52 _{At [16]-[17].}

53 Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [32].

Additional evidence

[28] In a judgment delivered on 28 February 2012 MacKenzie J granted Ms B and Mr P leave to file “updating affidavit evidence”. That is to say, leave was granted to both parties to present further evidence on matters that have arisen between the time of the Family Court hearing and the hearing of the appeal. MacKenzie J declined to give Ms B leave to file further evidence about:

(1) cultural opportunities for the children in Perth; (2) schools the children may attend in Perth; and (3) the children’s maternal grandfather in Perth.

His Honour declined to allow that evidence to be adduced because he was not

satisfied that it met the requirements of being “fresh evidence”.

[29] Ms B filed an “updating” affidavit on 23 March 2012. Mr P has not filed any updating evidence.

[30] On 18 May 2012 Ms B filed a second application to adduce further evidence. That application was supported by affidavits dated 17 May 2012 from Detective Bunker of the Whanganui CIB and 18 May 2012 from Ms B.

[31] In her affidavit of 23 March 2012 Ms B explains:

(1) How Mr P has “not made any real effort to spend time with the children on a regular basis since the [Family Court] hearing”.54

(2) That the attempts which Mr P makes to initiate contact are often inappropriate.55

54 _{Affidavit of 23 March 2012 from Ms B at [4].}

55 Affidavit of 23 March 2012 from Ms B at[x] and [ss].

(3) That Mr P was driving recklessly with JP in the car “doing burn outs and donuts in a paddock”, “burn outs on the road”, “speeding between

100 kmph and 120 kmph” and “drifting around corners”.56

(4) That Mr P has continued to purchase and use drugs (sometimes in front of JP).57

(5) That Mr P has failed to keep appointments with the children.58

(6) That Mr P has shown his children a photograph of his girlfriend wearing just a bikini bottom with her hands over her breasts.59

(7) That Mr P has continued to have a verbally violent relationship with his parents.60

(8) That Mr P’s parents have been swearing at each other in front of the

children.61

(9) That Mr P has continued to act in a threatening manner towards

Ms B.62

(10) Ms B concluded her affidavit by saying:

I still want to move to Perth with the children. I believe the move will have lots of benefits for the children. If we stay in Wanganui nothing will change. The children will be exposed to [Mr P’s] lifestyle which involves drugs, gangs and criminal activity. I do not want [JP] to turn out like [Mr P]. [JP] already has an attitude. He can be very angry and aggressive, and so like [Mr P].

In Australia we can make a fresh start. My father still fully supports our move as do [Mr P’s] family in Australia. His sister [B] lives in Brisbane and she has written to me saying she fully supports our move. [Mr P] has lots of family in

56 _{Affidavit of 23 March 2012 from Ms B at [8(a) and (mn)].}

57 _{Affidavit of 23 March 2012 from Ms B at [7] and [8(a), (e), (cc)].}

58 _{Affidavit of 23 March 2012 from Ms B at [8(b)].}

59 _{Affidavit of 23 March 2012 from Ms B at [8(d)].}

60 _{Affidavit of 23 March 2012 from Ms B at [8(e) and (w)].}

61 _{Affidavit of 23 March 2012 from Ms B at [8(i) and (y)].}

62 Affidavit of 23 March 2012 from Ms B at [8(n)].

Australia. Two more of his cousins and their children have just moved to Brisbane, and he also has two cousins in Perth who I am friendly with. It seems that me and the children are the only ones who are not allowed to move.

The children still want to go. I know that my father will help with airfares for the children to come back to New Zealand for visits. ...

[32] Ms B’s affidavit of 18 May 2012 contains two categories of evidence:

(1) The first category comprises a continuation of the description of the children’s contact with their father and Mr P’s behaviour. This part of Ms B’s affidavit explains that unacceptable behaviour by Mr P as described in Ms B’s affidavit of 23 March 2012 has continued through to the date of the hearing of this appeal. It can be fairly said that Ms B’s updating affidavit demonstrates that Mr P is not making any meaningful effort to engage appropriately in his children’s lives. It is also apparent that the bonds of trust that existed between the children and their paternal grandparents have frayed since the Family Court hearing. The reasons for that can be deduced from the evidence contained in the second part of Ms B’s affidavit of 18 May 2012.

(2) The second part of Ms B’s affidavit contains evidence of matters that were discovered in April 2012 when Mr P’s father gave JP his cellphone. Ms B noticed that there were a lot of text messages in the inbox of that cellphone. Ms B transcribed those text messages and annexed those transcripts as two schedules to her affidavit. Schedule 1 comprised text messages to Mr P’s father from Mr P’s mother. Schedule 2 contains text messages from a number of sources to Mr P’s father.

The text messages annexed to Ms B’s affidavit are often in a shorthand that can be difficult to decipher. However, it is quite apparent that the messages that Mr P’s mother sent to Mr P’s father reveal:

(i) a high level of verbal abuse from Mr P’s mother to

Mr P’s father;

(ii) extremely vile language; and

(iii) evidence that Mr P’s father was involved in drug

dealing.

[33] Ms B arranged for Detective Bunker to examine the second schedule of text messages which she transcribed. In his affidavit Detective Bunker explained his experience of investigating drug offences. In his opinion the text messages he examined were “indicative of drug dealing”.

[34] Leave was required to adduce the evidence from Detective Bunker and the second category of evidence set out in Ms B’s affidavit of 18 May 2012. Leave is granted to adduce that evidence for the reasons set out in [35] – [41].

[35] In my assessment, the evidence is very relevant and cogent. Its cogency was confirmed when both Ms B and Detective Bunker gave evidence before me and were cross-examined on the contents of their affidavits.

[36] This new evidence is relevant because it seriously calls into question the evidence which the Family Court Judge heard from Mr P’s parents. Mr P’s parents swore an affidavit on 20 May 2011 for the Family Court hearing. In that affidavit Mr P’s parents said:63

We do not smoke marijuana. We do not grow marijuana. We do not sell marijuana.

Both confirmed under oath in the Family Court that what they had said in their affidavit was true. The new evidence strongly suggests that the Family Court Judge was misled on this important issue.

[37] Even more perturbing are the text messages sent by Mr P’s mother to his

_{father. Those text messages provide strong evidence that:}

63 Joint affidavit of DP and SC 20 May 2011 at [4].

(1) The relationship between the children’s paternal grandparents is at times dysfunctional. It is not necessary to repeat verbatim the contents of the text messages to explain the concern. Suffice to say that some of the texts can be accurately described as vile, abusive, profane, and very disturbing.

(2) That Mr P’s father had been using marijuana and that he continues to be a “cafe drug dealer”.64

(3) That Mr P’s father appears to have been a poor role model for Mr P and may have in fact introduced him into growing and selling marijuana.

[38] This new evidence is important because it undermines the weight which the Family Court Judge placed on the relationship between the children and their paternal grandparents. This new evidence also helps explain why the relationship between the children and their paternal grandparents has changed significantly since the Family Court hearing. The change in relationship between the children and their paternal grandparents is explained in further depth later in this judgment.

[39] Mr P did not file any evidence to rebut or challenge any of the matters

contained in Ms B’s updating affidavits.

[40] Ms B did give evidence. She was cross-examined. Ms B’s time in the witness box was not long. Her appearance nevertheless enabled me to conclude that the Family Court Judge accurately described Ms B as being “straightforward”, “matter of fact”, “clear”, “reasonable” and “consistent”. Her “updating evidence” was not impeached in any material way. I have concluded that Ms B’s updating affidavits are accurate.

[41] Detective Bunker was also cross-examined. He also gave his evidence in a fair and objective manner. His overall conclusion that the texts he examined were

_{indicative of drug dealing was not undermined.}

64 Affidavit of 18 May 2012 from Ms B, Schedule A, at 3.

Summary of submissions

[42] It is not necessary to set out the parties’ respective submissions in great detail.

A brief summary will suffice.

Ms B’s case

[43] Ms Crooks, counsel for Ms B, emphasised in her submissions that:

(1) Ms B has always been the primary caregiver for the children and that she has discharged her parenting role to a good standard.

(2) Ms B’s motives for wanting to move the children to Perth are genuine and well meaning. Ms B wants to provide the children and herself with an opportunity to make something of their lives. She wants to break the ties of negative influence which have dominated the children’s relationship with their father. Ms B is now justifiably concerned that the children’s paternal grandparents may not have been providing the appropriate environment and influences that were thought to exist at the time of the Family Court hearing.

(3) Ms B has always encouraged the children to maintain a relationship with their father and their wider family. Ms B has also encouraged the children to recognise and enjoy their Maori heritage.

(4) Ms Crooks submits that Ms B will continue to provide support and encouragement to her children to continue these relationships.

(5) Mr P has been absent from the children’s lives for significant periods because of his drug use, gang involvement and criminal offending. It is not surprising that he has a poor relationship with his children. He has not learnt from the Family Court hearing. He has continued to behave poorly and failed to build a positive relationship with his children.

(6) The children have in the past had a good relationship with their paternal grandparents. At the time of the Family Court hearing the relationship between JP and his paternal grandfather appeared to be very good. However, the bonds of trust and respect between the children and their paternal grandparents have been eroded since the Family Court hearing.

(7) There can be little doubt the children are now exposed to an environment which is likely to compromise their emotional and psychological safety. This environment is already beginning to have an adverse influence on JP’s behaviour.

(8) The children want to move. Their reasons for wanting to move are well founded, considered and deserve respect.

Mr P’s case

[44] In her very carefully presented submissions Ms Simon said the following on behalf of Mr P:

(1) The Family Court Judge very carefully assessed the evidence presented to him over three days. The High Court should not interfere with the decision reached by the specialist Family Court Judge.

(2) The Family Court Judge carefully applied the correct legal principles to the facts before him and reached a decision that was soundly based upon the facts and the law.

(3) Allowing Ms B and the children to relocate to Perth would effectively terminate the children’s relationship with their father. The physical distance between Whanganui and Perth, coupled with the financial challenges of travelling between the two cities would cause the bonds

and attachments between the children, their father and his family to diminish further.

(4) Ms Simon accepted that the updated evidence produced by Ms B did not paint a particularly comforting scene. Nevertheless she submitted there had been two areas of improvement in Mr P’s behaviour since the Family Court proceedings, namely:

(a) there was no longer evidence that he was extorting sexual favours from Ms B; and

(b) there was a decrease in Mr P’s negative

communications with Ms B.

(5) Finally, Ms Simon stressed that the Family Court Judge was concerned that little was known about the proposed environment in Perth and Ms B’s father, and this Court should also be concerned about the “unknown” aspects of the proposed relocation.

The children’s case

[45] Ms Hipango is counsel for the children. Ms Hipango prepared a series of very comprehensive and helpful reports for the Family Court. Those reports for the Family Court were dated:

(1) 17 January 2011; (2) 20 April 2011;

(3) 3 October 2011.

Since then Ms Hipango has prepared two reports for this Court dated: (4) 16 February 2012; and

(5) 12 June 2012.

[46] In addition, Ms Hipango prepared a detailed submission for this Court. She supplemented that submission with oral submissions and attended a meeting which she arranged between the Court and the children.

[47] Ms Hipango’s considered submissions were clear and direct. She advised the

Court that:65

The children have tired of their father and paternal grandparents’ bad behaviour and role modelling. The children would prefer to have nothing more to do with them. The children consider and view relocation with their mother to Perth, Australia supported by maternal family and some paternal family (an aunt and uncle who reside in Australia) as a positive opportunity which will not only allow them to put some distance between themselves and their father and grandparents, but as something that might in time and with distance bridge a meaningful and positive relationship and strengthen and preserve a newly forged and positive relationship, which to date has deteriorated and continues to be detrimental to the children, from their and their mother’s point of view and experience.

The children

[48] The Court had the pleasure of meeting with JP and MP in the presence of Ms Hipango and the Registrar. The children were initially shy and a little reserved, but during the course of their conversations it became apparent that Ms Hipango’s assessment of the children’s wishes are entirely accurate. It was also apparent to the Court that the children’s wishes were well considered and insightful. I was particularly struck by JP’s desire to leave the Whanganui environment. He explained to Ms Hipango that one of his reasons for wanting to relocate to Perth was “because of [his] last name and cos of [his] dad and koro who have got a bad name and

_{influence”. JP said that “he might get branded” in the same way.}

65 Submissions of Ms Hipango dated 15 June 2012 at [72].

Analysis

Interests of the children

[49] Subsections 4(1), (2), (3) and (5) of the COCA are of primary relevance to this appeal. Thus:

(1) the welfare and best interests of the children must be the first and paramount consideration;66

(2) the welfare and best interests of each child in their particular circumstances must be considered;67

(3) the parent’s conduct may be considered only to the extent (if any) that it is relevant to the children’s welfare and best interests;68 and

(4) in determining what best serves the children’s welfare and best interests the Court must take into account any of the principles specified in s 5 that are relevant to the welfare and best interests of the particular child in his or her particular circumstances.69

[50] In addition, s 6(2)(a) and (b) of the COCA requires a child to be given reasonable opportunities to express their views on matters affecting them and any views which a child expresses must be taken into account (emphasis added). In C v S70 Randerson J set out a very comprehensive analysis of s 6 of the COCA. In that analysis his Honour helpfully explained:71

(h) By s 6(2)(b), where a child expresses views, they may be conveyed to the Court either directly or through a representative (usually the lawyer appointed to act for the child). Any views expressed “must be taken into account”. The expression “take into account” is stronger than the common statutory formula “have regard to” but it

66 _{Care of Children Act, s 4(1).}

67 _{Care of Children Act, s 4(2).}

68 _{Care of Children Act, s 4(3).}

69 _{Care of Children Act, s 4(5)(b).}

70 _{C v S [2006] NZHC 495; (2006) 25 FRNZ 123 (HC).}

71 At [31].

does not go so far as to oblige the decision maker to act in accordance with any view expressed by the child. That would run counter to the Court’s wider obligation to assess what the child’s welfare and best interests require: s 3. The obligation to take any such views into account is mandatory but the section (in contrast to s 23(2) Guardianship Act and art 12 of the Convention) is silent as to the weight to be given to the views expressed. It is implicit that the Court retains a discretion to give such weight to the child’s views as it considers appropriate in the circumstances of the case. Despite the omission in the new section to the age and maturity of the child (in contrast to s 23(2) of the 1968 Act) the legislature cannot have intended that a Court should not have regard to those factors along with such other considerations as may be relevant to an assessment of the weight to be given to the child’s views. (emphasis added)

[51] When applying the statutory principles to this case it becomes apparent:

(1) The children view their mother as the parent who provides for their welfare and meets their best interests.

(2) That Ms B’s approach to parenting is child focused.

(3) That Ms B’s desire to relocate to Perth is based upon positive motives and a genuine desire to provide her children with both:

(a) an opportunity to fulfil their potential; and

(b) to break the negative shackles of their current environment in Whanganui.

(4) That Mr P has failed to take advantage of the opportunity afforded by the Family Court to develop bonds of trust and confidence with his children. If anything, the environment created by Mr P and his immediate family has adversely served the interests of the children since the Family Court proceeding.

(5) That the children have developed well considered and sound reasons for wishing to relocate to Perth.

[52] In assessing the wishes of the children in this case, this Court has had three advantages that the Family Court did not enjoy:

(1) First, the children are now a little older and a little more mature than when they were seen by the Family Court Judge. At that stage, Mr Watson said that the children were “... on the cusp of being able to move and not lose attachments or possibly lose previous attachments with family ...”.72

Consistent with that assessment it would appear that the children have reached the points in their development whereby they can make a comparatively informed decision about wishing to relocate and maintain their existing relationships with their father and paternal grandparents (such as they are).

(2) Second, the additional evidence which Ms B has adduced has established that Mr P has failed to develop his relationship with his children. In his assessment at the time of the Family Court hearing Mr Watson thought it would be in the children’s best interests if their relationship with their father was repaired before the children

relocated to Perth.73 The Family Court Judge was persuaded to give

Mr P an opportunity to mend his relationship with his children. Mr Watson also made it clear in the Family Court that if the relationship between Mr P and his children did not improve then they should not “be stuck here”.74 Mr P’s failure to take steps to improve his relationship with his children should not now be a factor that weighs against the children’s wishes and what is in their best

interests.

(3) Third, the additional evidence which Ms B has adduced has helped explain the toxic nature of the environment that the children had been

72 _{DPP v JEB FC Wanganui FAM-2010-083-486, 4 October 2011 Notes of Evidence at 15 line 10.}

73 DPP v JEB FC Wanganui FAM-2010-083-486, 4 October 2011 Notes of Evidence at 15-17 and

_64-66.

74 DPP v JEB FC Wanganui FAM-2010-083-486, 4 October 2011 Notes of Evidence at 64.

exposed to through Mr P and his family. It helps explain why the children have such firm wishes to start afresh in Perth and to sever their contact with their father and their paternal grandparents.

[53] In giving effect to the principles contained in ss 4 and 6 COCA it is necessary to have regard to any of the principles in s 5 COCA that are relevant to the welfare and best interests of JP and MP. This point was explained in the following way by the Supreme Court in Kacem v Bashir:75

The s 5 principles are important legislative reminders to decision makers (parents, guardians and courts) of the context in which the paramount consideration of the welfare and best interests of the particular child must be considered. The principles identified are not entirely distinct. Some stress different aspects of themes to be found in other principles and in the other provisions of the Act. Within s 5 there are expressions of emphasis as well as identification of matters to be considered.

And further at:76

... the ultimate objective is to determine what outcome will best serve the welfare and best interests of the particular child or children in his, her or their particular circumstances. In making that determination the s 5 principles must each be examined to see if they are relevant, and if they are, must be taken into account along with any other relevant matters. It is self- evident that individual principles may have a greater or lesser significance in the decision-making process, depending on the circumstances of individual cases. If, for example, principle (e) (concerning the child’s safety) is engaged it is likely to have decisive weight, not because of any presumptive legal weighting, but because of the crucial factual importance of protecting the safety of children when compared with the objectives at which the other principles are aimed.

[54] In assessing the principles that are relevant to the welfare of the children in the circumstances of this case I propose to revisit the same principles considered by the Family Court Judge, albeit with the advantage afforded to me by the additional

_{evidence adduced by Ms B and Ms Hipango’s further reports.}

75 _{Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [5] per Elias CJ.}

76 At [19] per Tipping J for Tipping, Blanchard and McGrath JJ..

Principle (a) – That the parents should have primary responsibility for, and be encouraged to agree to, arrangements for the children’s care, development and upbringing

[55] The Family Court Judge recorded that the relationship between Ms B and

Mr P needed to improve and that they needed to consult about guardianship issues.

[56] In my assessment Mr P has completely failed his responsibilities to play any meaningful role in the children’s care, development and upbringing. In addition to being a poor father and poor role model he has contributed significantly to an environment that is very contrary to the best interests of his children. Mr P has been given every opportunity to play a role in the children’s care, development and upbringing. His failure to do so is a factor that weighs heavily towards the conclusion that it is in the children’s best interests to relocate to Perth. Furthermore, when applied with the benefit of the evidence that has emerged since the Family Court hearing it is clear that principle (a) should not be able to be invoked by Mr P and his family to undermine attempts by Ms B to take steps that are in the best interests of the children.

Principle (b) – Continuity and care arrangements, and children’s relationship with family should be stable and ongoing (in particular the child should have an ongoing relationship with his or her parents)

[57] Mr P has continued his irresponsible lifestyle since the Family Court hearing. It is Mr P and his family who have undermined any stability that may previously have existed in relation to the children’s care arrangements and their relationship with Mr P’s family.

[58] Principle (b) should not invoked to prevent the children relocating to Perth. To do so would result in principle (b) being used in a way that is contrary to the children’s wishes and their best interests.

Principle (c) – There should be ongoing consultation and co-operation between the parents

[59] In my assessment Mr P is responsible for any lack of consultation and co- operation between the parents. He has plainly abdicated his responsibilities as a father. While ideally there should be ongoing consultation and co-operation between Ms B and Mr P there is no evidence to suggest that Mr P is about to change his ways. Accordingly, I do not believe that principle (c) should be applied in the circumstances of this case to circumvent what is both the wishes of and in the best interests of the children.

Principle (d) – Relationship with family whanau should be preserved and strengthened

[60] The Family Court hoped that if the children remained in Whanganui their relationship with their father and his family would be preserved and strengthened because those people would be encouraged to participate in the children’s care, development and upbringing. Unfortunately Mr P and his family have failed to take advantage of the opportunity afforded to them by the Family Court.

[61] I fully accept that if Ms B and the children relocate to Perth the children’s relationship with their father and his family is likely to continue to weaken. However, I also accept Ms B’s assurances that she will do what she can to ameliorate the effects of relocation to Perth on the children’s relationship with Mr P and his family. That is to be attempted through:

(1) The children regularly skyping with their father and paternal grandparents. I note from the evidence in the Family Court that Mr P’s parents already skype regularly with their children and relatives in Australia. They at least appear to appreciate the value of skyping as a means of maintaining relationships.

(2) The children returning to Whanganui at least once a year. Ms B has undertaken to the Court that she will ensure the children return to Whanganui at her expense (with financial assistance from her father)

so as to ensure that the children can continue to participate in Ratana celebrations and/or have Christmas in Whanganui.

[62] In my assessment, principle (d) should not be employed to prevent the children relocating to Perth which is what the children wish and what is in their best interests.

Principle (e) – The children’s safety must be protected, and they must be protected

from all forms of violence

[63] Ensuring the “children’s safety” includes protecting them from emotional,

psychological and social harm:77

The term “safety” in the context of s 5(e) is far wider than safety from physical violence or sexual abuse. The child must be protected not only from physical injury or abuse but also from any threats to his or her health or physical, physiological or psychological wellbeing and development.

It is clear from the evidence that has emerged since the Family Court hearing that the children are at grave risk of suffering significant emotional, psychological and social harm if they are not afforded the opportunity to create a new start in Perth.

[64] It will be apparent from this judgment that in my assessment principle (e) weighs very heavily in favour of permitting Ms B and the children to relocate to Perth.

Principle (f) – The children’s identity (including cultural, language and religion)

should be preserved and strengthened

[65] The Family Court Judge was right to conclude that the children’s Maori heritage would be preserved and strengthened if they remained in Whanganui. Principle (f) does weigh against allowing the children to relocate to Perth. However, while the Court does not in any way undervalue this consideration, in the Court’s assessment the overall best interests of the children are best served by allowing the

_{children to relocate to Perth. In making this observation the Court is confident Ms B}

77 ZainabAl-Alawi (ed) Brookers Family Law – Child Law (online looseleaf ed, Brookers) at

CC5.08.

will continue to do what she can to encourage the children to embrace their Maori culture and heritage.

Perth

[66] The Family Court Judge was rightly concerned about the amount of information he had about the environment that the children would enter if they relocated to Perth. The material before the Family Court Judge included information that:

(1) Ms B’s father and his partner appeared to have a large house with a

swimming pool.78

(2) The children are likely to go to Wycombe High Primary in Perth which is a primary school attended by some of their relatives.79

[67] Ideally the Family Court should have had the benefit of much more information about the scholastic, family, cultural and sporting options available to the children in Perth.

[68] However, as this judgment endeavours to make clear, the current environment the children are exposed to is so undesirable that the Court is confident that the children will be significantly better off in Perth.

Formal orders

[69] The appeal is allowed. Ms B should be allowed to relocate the children with her to Perth.

[70] Counsel for the children is invited to confer with counsel for the parties on the terms of any other consequential orders that may need to be made and to submit

_{a draft form of such orders (if any) to the Court.}

78 Report, Counsel for Children dated 17 January 2011 at [13] and Affidavit dated 24 November

_{2010 from Ms B at [26].}

79 Affidavit of 9 September 2011 from Ms B at [59].

_{D B Collins J}

Solicitors:

Armstrong Barton, Whanganui for Appellant

Stephen Ross & Raukawa Simon, Whanganui for Respondent