NR v MR [2012] NZHC 2859 (31 October 2012)

Last Updated: 9 November 2012

NOTE: PURSUANT TO SECTION 139 OF THE CARE OF CHILDREN ACT

2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SECTIONS 11B TO 11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE HTTP://WWW.JUSTICE.GOVT.NZ/COURTS/FAMILY- COURT/LEGISLATION/RESTRICTIONS.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2012-485-1359 [2012] NZHC 2859

IN THE MATTER OF an appeal pursuant to s143(2) of the Care of

Children Act 2004

BETWEEN NR Appellant

AND MR

First Respondent

AND CC

Second Respondent

Hearing: 19 September 2012

Counsel: K McKenzie-Bridle for appellant

M L Greenhough for first respondent

T W Davis, counsel for the child

Judgment: 31 October 2012

_{RESERVED JUDGMENT OF DOBSON J}

Contents

Background........................................................................................................................................ [3] Family Court decision ....................................................................................................................... [8] Grounds of appeal ........................................................................................................................... [15] Appeal jurisdiction .......................................................................................................................... [16] Legal principles ............................................................................................................................... [19] First ground of appeal: concurrent Family Court proceedings .................................................. [20] Submissions .................................................................................................................................. [20] Analysis ........................................................................................................................................ [23]

NR v MR HC WN CIV-2012-485-1359 [31 October 2012]

Challenge to factual findings .......................................................................................................... [30] Remaining grounds of appeal: principles contained s 5 of the Act ............................................. [33] The status quo............................................................................................................................... [41] Disruption to elements of the status quo ...................................................................................... [42] Identifying other factors ............................................................................................................... [51] Evaluation of the child’s best interests. ........................................................................................ [53]

[1] The appellant is the mother of a five year old girl, T. The respondent is the maternal grandmother and primary caregiver of the child. In a decision dated

22 June 2012, Judge V H Ullrich QC in the Family Court allowed the child to be relocated with the respondent from Porirua to Taranaki.1 In this judgment I will refer to the appellant as “the mother”, the respondent as “the grandmother” and T as “the child”.

[2] The mother appeals against the Family Court decision which allowed relocation to occur. She has also applied for a parenting order which would restore her as the child’s primary caregiver, which is awaiting hearing in the Family Court. The child’s father has apparently taken no interest in her at all, and has certainly not taken part in any stage of the proceedings.

Background

[3] The child was born in March 2007 and has been in the day-to-day care of the grandmother since she was five months old. Following Family Court proceedings in

2008, the parties agreed on a parenting order granting formal day-to-day care of the child to the grandmother, with contact with the mother to be agreed. At that time, the grandmother was appointed an additional guardian of the child under s 27 of the Care of Children Act 2004 (the Act). Daily contact continued between the mother and the child, although no overnight visits were permitted.

[4] Until July 2012, all parties resided in the Porirua area, and the child attended a local kohunga reo early childhood centre. In December 2010, the grandmother discussed with her three daughters and wider whanau the prospect of her moving to Taranaki to care for her sister who suffers from dementia. The grandmother

_{commenced steps to that end such as selling her house in Porirua, which settled on}

1 NR v MPHR [2012] NZFC 3849.

1 December 2011. The grandmother and the child moved into the mother’s house in November 2011. The mother and the wider whanau were aware at that time of the grandmother’s plans to take the child with her to Taranaki, and that the child would start primary school there. The grandmother claims that the mother was aware of this proposal from December 2010, although the Family Court Judge found that it

was more likely to be early 2011.2

[5] Whilst the grandmother and the child were visiting one of the grandmother’s other daughters in Australia in December 2011, an enrolment package arrived at the mother’s home from the primary school in Taranaki where the grandmother intended to enrol the child. The mother opened that package, told the grandmother it had arrived, and relayed some details by telephone to the grandmother about uniform and stationery requirements.

[6] The mother claims she tried to contact her lawyer after she had opened the enrolment package, as she was not comfortable with the proposed relocation. The mother first raised formal objections to the proposed relocation on 2 March 2012, when she made two applications to the Family Court at Porirua:

(a) an application for an interim order preventing the removal of the child from the Wellington area;

(b) an application for a parenting order, providing that she have day-to- day care and responsibility for the child.

[7] The first application was granted, but in a substantive decision dated 22 June

2012 the order preventing relocation was discharged. The mother then filed an interlocutory application for a stay of the decision pending appeal, which was denied by MacKenzie J on 6 July 2012. The grandmother and the child moved to Taranaki on 8 July 2012, in anticipation of the child’s first day at primary school on 16 July

_{2012. The second application is yet to be determined.}

2 At [86].

Family Court decision

[8] Judge Ullrich focused her analysis on the child’s care and her contact with her mother and grandmother over the last five years. All parties acknowledged that when the child was a baby, the mother was unable to care for the child properly, resulting in the grandmother stepping in and providing day-to-day care for the child. Initial contact with the mother occurred on a daily basis, but was made more difficult by the birth of the mother’s second child in 2009.

[9] The parties dispute the frequency of contact between the mother and the child that has occurred since the birth of the mother’s second child. The grandmother claims that she would take the child to see the mother most days for a short period of time, but did not permit overnight visits. The mother claims that daily visits stopped six months after parenting orders were made in December 2008. After that time, she had to ask the grandmother to see her daughter, which would usually require her to go to the grandmother’s house.

[10] When the grandmother and the child moved in with the mother in November

2011, daily contact resumed, although the grandmother and the child did not spend a great deal of time at the house during the day. On almost every occasion, contact between the mother and the child was supervised by the grandmother. The grandmother had, and continues to have, concerns about the prospect of domestic violence and drug use at the mother’s home to which she does not want the child exposed.

[11] The Judge considered that the grandmother had controlled the relationship between the child and the mother and showed reluctance to consult the mother on important guardianship decisions such as schooling, although the mother had not shown initiative in that respect either.

[12] Against this background, the grandmother was described as the “primary attachment figure”.3 From the child’s point of view, the grandmother had provided

_{continuous care for almost all of her life, although brief but regular visits with the}

3 At [128].

mother also featured. The Judge considered that the mother had not been involved in the child’s early childhood education even though it was locally based. After learning that the grandmother had enrolled the child at a Taranaki primary school around December 2011, the mother did not raise any issue or take steps to enrol her at another school, although she claims she took steps to pursue the child’s enrolment at Maraeroa school in Porirua. The Judge concluded that the mother has allowed the grandmother to take responsibility for the child’s education and future plans.

[13] Judge Ullrich found that the grandmother had a valid reason for relocating and had made that known in early 2011, long before the mother raised any objections. The Judge noted that the distance between Porirua and Taranaki created obstacles in the way of regular contact. However, she was satisfied that the relationship between the mother and her daughter could be maintained by regular visits to Porirua during school holidays and one weekend during the term, as well as visits by the mother to Taranaki, the cost of which the grandmother had agreed to cover. The Judge took the view that the child’s relationship with the mother does not need to be prejudiced by a move to Taranaki.

[14] The Judge did not consider her decision to be constrained by the mother’s pending application for a parenting order in the Family Court. She stated that relocation to Taranaki does not rule out the possibility of the mother resuming full time care for her daughter in the future. She concluded that the child’s welfare would not be prejudiced by relocation. In light of those findings, the Judge made a guardianship direction that the grandmother could take the child to live with her in Taranaki, provided that the predicted contact with the mother (one week of each school holidays in Porirua and once a term in Taranaki) takes place.

Grounds of appeal

[15] The mother’s challenges to the Family Court decision can be grouped under

three broad hearings:

(a) Allowing relocation of the child unfairly prejudices the mother’s

pending application for a parenting order. The status quo should not

be disrupted where substantive proceedings relating to parenting orders are pending.

(b) The Judge misapplied the principles in s 5 of the Act. In particular, the mother contends that the Judge gave insufficient weight to the following considerations:

(i) the child’s parents and guardians have primary responsibility for the child’s care, development and upbringing (s 5(a));

(ii) there should be continuity in the arrangements for the child’s

care, upbringing and development (s 5(b));

(iii) the relationships between the child and the members of the family should be preserved and strengthened (s 5(d)).

(c) The following factual findings should not have been taken into account in considering the principles in s 5 or the best interests of the child:

(i) the conduct of the mother in making no objection to the plans to relocate until March 2012;

(ii) the mother had taken no steps to involve herself around guardianship decisions such as schooling.

Appeal jurisdiction

[16] An appeal of this nature is conducted as a rehearing pursuant to s 143(4) of the Act, which imports ss 73-78 of the District Courts Act 1947 as part of the procedure on appeal. The scope of the Court’s appellate jurisdiction is of the kind described by the Supreme Court in Austin, Nichols & Co Inc v Stichting Lodestar.4

_{Accordingly, I am to reach my own view on the issues that determine the outcome,}

4 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].

and if I come to a different view as to those issues, then that is to dictate the outcome of the appeal.

[17] The 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, and come to its own view on the merits.5 The Court must exercise its own judgement but, where appropriate, give weight to the findings of the Family Court in the manner described by the Court of Appeal in D v S:6

Whilst the High Court will naturally give weight to the views of the specialist Court and may in some cases think it best to remit the case for reconsideration, it is fully entitled to substitute its views on questions of fact, including the issue of what is in the best interests of the child or children concerned. There is no rule of law requiring the High Court to defer in these respects to the Family Court even in a finely balanced case.

[18] To the extent that the Family Court’s decision was based on findings of credibility, allowance must be made for the fact that Judge Ullrich saw and heard the parties to this dispute give evidence and respond to questioning.7

Legal principles

[19] A decision permitting or preventing the relocation of a child is within a broad range of directions the Court can make to resolve guardianship disputes, pursuant to s 44 of the Act. The Court’s approach to these determinations is prescribed by ss 4-6 of the Act. The paramount consideration in any decision under the Act is the welfare and best interests of the child.8 The conduct of the parents or caregivers may be

considered only to the extent that it is relevant to the child’s best interests.9 The

principles contained in s 5 should be considered to the extent that they inform the best interests of the child.10

5 _{At [3].}

6 _{D v S [2003] NZFLR 81 (CA) at [18].}

7 R v Munro [2007] NZCA 510, [2008] 2 NZLR 87; Owen v R [2007] NZSC 102, [2008] 2 NZLR

_{37 at [15].}

8 _{Care of Children Act 2004, s 4.}

9 _{Section 4(3).}

10 Section 4(5)(b).

First ground of appeal: concurrent Family Court proceedings

Submissions

[20] The first ground of appeal is an objection to relocation of the child pending the hearing of an application for a parenting order. The mother characterises the relocation orders as an interim decision, pending the outcome of a substantive hearing on parenting orders. Ms McKenzie-Bridle for the mother relied on Fletcher v McMillan where the Court of Appeal held that where substantive proceedings are afoot, the existing care arrangements or status quo should be maintained pending the

substantive hearing, unless there is a risk to the welfare of the child.11

[21] It was argued for the mother that the residence of the child with her grandmother in Porirua was an established status quo which should have been maintained until the Family Court determined her application for parenting orders. Allowing relocation changes the status quo, and prejudices the mother’s application for parenting orders by materially reducing its chances of success. By the time of the hearing, the child will have settled in a new community and school, a situation that the Court would be very reluctant to disrupt. The distance between Porirua and Taranaki would rule out an agreement between the parties for a staged and gradual transition back to parental care, which may otherwise have been possible if the child had remained in Porirua.

[22] For the grandmother, Ms Greenhough submitted that Fletcher v McMillan should only apply to interlocutory applications to vary the care and guardianship arrangements that are ultimately to be determined at a substantive hearing. In contrast, the Family Court’s decision was a final order on relocation under s 44 of the Act. In effect, a relocation application brought by a primary caregiver is to be determined on its own merits in the interests of the child, and should not be deferred

_{or second-guessed by the existence of a pending application for a parenting order.}

11 Fletcher v McMillan [1996] 2 NZLR 491 (CA).

Analysis

[23] There are two aspects to this ground of appeal. First, whether the Family Court’s decision allowing relocation ought to be treated as an interim or provisional solution, and second, whether the effect of these proceedings on concurrent Family Court proceedings has any bearing on the welfare and best interests of the child.

[24] As to the first question, s 48(4) of the Act describes an interim parenting order as one which “has an effect until a specified date, or event, or until the Court orders otherwise”. Interim orders are generally made to regulate the position of the parties between the filing of an application with the Family Court and the making of a final order. They are usually appropriate where the situation is in a state of flux

after separation of two parents, active conflict or evidence of neglect.12

[25] This matter involves two separate proceedings, although the first may have the effect of an interim order, as it regulates the situation between the parties and the care of the child until the final application for the parenting order is determined. Additionally, the Judge acknowledged that a move to Taranaki at this stage would not rule out the possibility of the mother obtaining a parenting order and the child returning to her full time care in the future. This suggests that the order has a somewhat temporary effect until long term arrangements are settled.

[26] However, the two applications are made and considered under separate sections of the Act (ss 44 and 48 respectively). The mother made an application in March 2012 to prevent relocation and to maintain her perception of the status quo until the Family Court’s final decision on relocation. The decision granting that application was an interim one, and was disposed of following a substantive hearing on relocation and the final decision of Judge Ullrich. The proposition in Fletcher v McMillan does not extend to decisions of this nature, as it is intended to prevent changes in circumstances which may be prejudicial to one party, before a Judge has had the chance to review the evidence and make a final decision. Judge Ullrich presided over a substantive hearing, and heard oral evidence on relocation. She had

_{regard to the related proceedings that were pending in the Family Court, but found}

12 K v K [2009] NZFLR 241 at ]36].

that relocation at this stage would not prejudice a variation of parenting orders in the future. Therefore, her decision was not of an interim nature, and she was not constrained in preserving the status quo.

[27] Even if the decision was of an interim nature so that the Judge was constrained by Fletcher v McMillan to preserve the status quo, on one view of what represents the status quo her orders did in fact do that in respect of parenting orders. Parenting orders were made in 2008 granting the grandmother primary caregiving responsibility. If continuing the grandmother’s role as primary caregiver is the dominant feature in the child’s status quo position, then allowing relocation of the child with the grandmother to Taranaki has the effect of preserving that status quo. Therefore I would be satisfied that the Family Court acted within any relevant constraint imposed on it when dealing with interim orders.

[28] As to the second aspect of this ground of appeal, given that the child’s best interests are paramount under s 4 of the Act, the mother must show how her objection on this ground of appeal impacts the welfare of the child. Unless that is made out, the mother’s concerns about the prospects of her pending application have limited relevance. The relocation decision is solely focused on whether the best interests of the child would be furthered or hindered by relocation. The potential for a decision on relocation to prejudice a future application for parenting orders is something that the Court should be aware of. However, it would only constrain the Judge if that prejudice was shown to be contrary to the best interests of the child.

[29] Such prejudice would be more likely if a pending application had high prospects of success or was seen to be central to the child’s interests. Otherwise, the Court could be diverted from the child’s interests on the basis of an application that had very little relevance to her. I am satisfied that those circumstances exist here. Although Ms Davis was very measured in the submissions she made as counsel for the child, she was firm in her view that in the present circumstances, the mother’s application for a parenting order has little prospects of success. That view appeared justified, and was supported by Ms Greenhough for the grandmother. I acknowledge immediately that these observations have only limited relevance to this appeal. They

should not be taken as indicating a finite view on the merits of the mother’s

application for a parenting order.

Challenge to factual findings

[30] It is convenient to deal next with the specific criticisms of reliance on certain factual matters. The mother challenged the reliance that the Family Court Judge placed on her delay in making any objection to the child’s proposed relocation, when she had been aware of it since at least the beginning of 2011. There could be a variety of reasons why that proposal remained unchallenged through most of 2011. It is clear that the relationship between the mother and the grandmother deteriorated towards the end of 2011, which may have been the final impetus for the mother to take action to stop the impending relocation.

[31] All the dealings between the mother and grandmother can appropriately be treated as if the conduct of “the parents”, so that under s 4(3) of the Act such conduct can only be considered to the extent (if any) that it is relevant to the child’s welfare and best interests. For that reason, little can be made of the mother’s failure to raise objections to the relocation until quite late in the piece. Whether the mother’s objection was immediate or delayed has no bearing on the best interests of the child, except to the extent that the child seems to have been expecting and preparing for a move to Taranaki and a new school. The child had been aware of the relocation proposal for some time, and her anticipation of going to school in Taranaki was a legitimate aspect of her interests. The timing of the mother’s objection to the relocation proposal was relevant to the Court’s decision to deal with that application in the sequence that has occurred.

[32] The mother also objected to Judge Ullrich’s finding that she had shown little interest in guardianship decisions such as the child’s schooling. The Judge at one point remarked that the grandmother had shut the mother out of this aspect of the child’s life, although also commented that the mother had not shown much interest either. The Judge compared the initiative of the grandmother in enrolling the child at a Taranaki primary school, taking her on a school visit and introducing her to a teacher, with the mother’s steps to obtain enrolment forms for the local Maraeroa

school. On the basis of that evidence, and seeing and hearing from the parties in person, it was open to the Judge to find that the mother had not taken the steps to involve herself in the child’s life, as would be expected of someone seeking greater responsibility for her upbringing and care.

Remaining grounds of appeal: principles contained s 5 of the Act

[33] The remainder of the submissions on behalf of the mother focused on the Judge’s application of the principles contained in s 5 of the Act. It was submitted that the misapplication of these principles had resulted in an order which was contrary to the child’s best interests.

[34] The principles set out in s 5 of the Act are relevant to the circumstances of the particular case, if they inform what it is in the welfare and best interests of the child.13 Section 5 provides:

5 Principles relevant to child's welfare and best interests

The principles referred to in section 4(5)(b) are as follows:

(a) the child’s parents and guardians should have the primary responsibility, and should be encouraged to agree to their own arrangements, for the child's care, development, and upbringing:

(b) there should be continuity in arrangements for the child’s care, development, and upbringing, and the child’s relationships with his or her family, family group, whanau, hapu, or iwi, should be stable and ongoing (in particular, the child should have continuing relationships with both of his or her parents):

(c) the child’s care, development, and upbringing should be facilitated by ongoing consultation and co-operation among and between the child’s parents and guardians and all persons exercising the role of providing day-to-day care for, or entitled to have contact with, the child:

(d) relationships between the child and members of his or her family, family group, whanau, hapu, or iwi should be preserved and strengthened, and those members should be encouraged to participate in the child’s care, development, and upbringing:

(e) the child’s safety must be protected and, in particular, he or she must be protected from all forms of violence as defined in section 3(2) to (5) of the Domestic Violence Act 1995 (whether by members of his

13 Section 4(5)(b).

or her family, family group, whanau, hapu, or iwi, or by other persons):

(f) the child’s identity (including, without limitation, his or her culture, language, and religious denomination and practice) should be preserved and strengthened.

[35] Some of these principles will self-evidently be of greater or lesser significance depending on the circumstances, and there is no presumptive weighting or priority of any of the factors.14

[36] The following factors are most relevant to the best interests of the child in this case:

(a) The grandmother is the child’s guardian and thus far has had primary care responsibilities for the child. Relocation reduces the level of responsibility that the mother may have for the child’s upbringing and care.

(b) Relocation would achieve continuity in the primary child care arrangements with the grandmother, but would disrupt continuity in the child’s physical surroundings and regularity of contact with the mother.

(c) Relocation away from the child’s family will not facilitate on-going consultation and co-operation among members of the family. However, the grandmother assured the Family Court that she would arrange regular contact and visits with the mother after the relocation, including paying for the mother’s transport to Taranaki and proposing regular trips to Porirua (although it appears these may not have been fulfilled, perhaps due to the birth of the mother’s third child).

(d) The relationships between the child and members of her family, namely her mother and half brother, are prejudiced by relocation,

_{rather than preserved and strengthened. The Judge found that regular}

14 K v B [2010] NZSC 112, [2011] 2 NZLR 1 at [21].

visits with the mother during the school holidays and once during each school term would be sufficient to maintain the relationship between the mother and the child. The Judge did not consider the likely effects of relocation on the relationship between the child and her half brother. The report of counsel for the child noted that the child had not spoken to or seen the mother since moving to Taranaki, but that a visit was planned in the first week of the school holidays that were pending at that time.

(e) There is some evidence from the grandmother that the mother permits drugs to be used in her home, and lives with a partner who displays violent tendencies. However, there is no evidence that the child’s half brother, who lives with the mother, is at risk of harm from these factors, and it is not a case where relocation is necessary to protect the child’s safety.

[37] The mother’s submissions focused on the importance of continuity in the child’s life (factor (b)) and the adverse affect of relocation on the child’s relationship with her mother and half brother (factor (d)). The mother urged that the child’s familial relationships and the daily contact arrangements with the mother were an important component of the status quo that ought to have been preserved in the interests of continuity.

[38] The relationship between these two principles is likely to be of greater significance in any relocation case, as articulated in K v B by Elias CJ:15

In a case where one parent proposes to take a child to live at a distance from the other parent (or other family members of importance to the child), the statutory context provided by s 5 in practice will require consideration of whether the relationship with the other parent (or other family) will be disrupted or adversely affected. If so, and depending on the degree of disruption or adverse effect, it is likely that there will have to be other factors which could permit the conclusion that, notwithstanding the disruption of the relationship, the welfare and best interests of the child favour the change. Similar assessment will be required in cases where a change will disrupt “continuity in arrangements for the child’s care, development, and upbringing” (s 5(b)), inhibit co-operation among and between the parents

15 At [9] (citations omitted).

and guardians (s 5(c)), or strain relationships between the child and other family members (s 5(d)). Change that would disrupt settled arrangements and important relationships prompts justification by other considerations if the paramount consideration of the welfare and best interests of the child is to be fulfilled.

[39] And by Tipping J:16

At the highest level of generality the competition in a relocation case is likely to be between declining the application for relocation because the children’s interests are best served by promoting stability, continuity and the preservation of certain relationships, as against allowing it on the ground that the interests of the children are thereby better served.

[40] In terms of the Supreme Court’s decision, four considerations are necessary in identifying the course of action that promotes the best interests of the child:

(a) identification of the status quo;

(b) the degree of disruption or adverse effect on elements of the status quo;

(c) the other factors which suggest that relocation would be in the best interests of the child;

(d) evaluation of whether the factors identified at (c) justify the disruption assessed under (b).

The status quo

[41] Counsel were urged to identify the elements of the status quo they were relying on, and therefore the continuity they saw as desirable to maintain. The three elements of the status quo in the child’s life (or to use the words of s 5(d): care, development and upbringing) before relocation were:

(a) the identity of the primary caregiver and day-to-day childcare arrangements with the grandmother;

16 At [23].

(b) the child’s physical surroundings in Porirua;

(c) the familial relationships and daily contact with the child’s whanau

located in Porirua, including her mother and half brother.

Disruption to elements of the status quo

[42] If the grandmother remained in Porirua, it would be possible to maintain continuity in respect of all of these elements. The grandmother accepted that this course of action would have been likely had the Family Court Judge kept in place the interim order preventing relocation.

[43] Relocation to Taranaki would disrupt continuity in respect of (b) and (c), but maintain continuity in respect of (a), as the grandmother would remain the primary caregiver of the child.

[44] As to the extent of disruption to the mother-child relationship, relocation has meant that the child has gone from having daily, supervised contact with her mother to quarterly visits of longer duration, and possibly some additional weekend visits. Despite that change, the Family Court Judge found that a continuing relationship with the mother was still possible and that that relationship did not have to be prejudiced by relocation.

[45] However, I am persuaded that the physical distance between the mother and the child will disrupt their relationship to a greater extent than the Family Court Judge recognised. Without her own means of transport to Taranaki, any visit to the child will have to be planned in advance with the involvement of the grandmother, and the practical impediments involved in getting to Taranaki and staying there over

a period of time will inhibit regular contact. As Priestley J stated in R v S:17

Any parental application seeking to relocate a child to another region or country, thus imposing substantial geographic separation between parent and child, will inevitably raise emotional issues. Few parents, even the most child-focused, can be expected to view with equanimity the disruption and change which geography will impose on a valued parent/child relationship.

17 R v S [2004] NZFLR 207 at [74].

[46] From the child’s point of view, the mother will go from being someone that she sees every day to someone that she visits in the school holidays. The sporadic nature of the contact and the length of time in between each visit will inhibit the development of the bond between mother and child. It will also inhibit the mother’s ability to spend sufficient time with the child to develop the parenting skills that would be necessary for her to eventually take full time responsibility for her care.

[47] However, those considerations need to be compared with the status quo, and the value of the daily visits with the mother prior to relocation. These visits were short and almost always supervised by the grandmother. They could not have allowed for much in the way of maternal development. Under the current arrangements, the mother would be able to spend extended periods of time with the child on visits to Taranaki, either staying at the grandmother’s home or at the home of other family members in the area. The grandmother stated in cross-examination that when the mother goes to stay in Taranaki with one of her nieces, she would permit the child to stay there unsupervised.

[48] In addition, the grandmother has committed to travelling to Porirua every school holidays and for part of the Christmas holidays with the child, in order for the child to see her mother. She has also committed to trips to Porirua during weekends every three months in the middle of the school term. It is unclear whether the grandmother has complied with these assurances since relocation, and in the short term visits may be complicated by the imminent birth of the mother’s third child. Regardless, if the mother is proactive about taking these opportunities to spend time with her daughter, she will be able to maintain and develop a relationship with her daughter to a stage where transition to full time parental care could be an option.

[49] Overall, I agree with Judge Ullrich that a relationship with the mother is still possible after relocation. However, I would not go as far as concluding that relocation does not prejudice their relationship. I assess relocation as having a moderate disruption to the status quo in terms of the mother’s role in the child’s life, and that it is likely to inhibit to a certain extent the development of an on-going caregiving role, including the gradual transfer of that responsibility to the mother as a full time caregiver.

[50] An additional disruption to the status quo is that caused to the relationship between the child and her half-brother, which was described as a close bond before relocation. Their contact was more regular than the child’s contact with the mother, as in addition to the daily visits, the half-brother would stay at the grandmother’s home on Friday nights. Their relationship has been disrupted since the move to Taranaki, as there is not the same frequency of contact, especially as it is unclear whether the half brother would also travel with the mother to Taranaki when she visits her daughter. Ms Davis for the child reports that the child misses her half brother, and wishes that he would come and visit her. It is clear that the child has noticed a disruption in their relationship, being one that she wants to continue. The extent of that disruption was not adequately considered by Judge Ullrich, as accepted by counsel for the grandmother. However, disruption in this respect is not as important as the disruption to the relationship between the child and the mother, as s 5(b) expressly states that “in particular, the child should have continuing relationships with both his or her parents”.

Identifying other factors

[51] The next stage is to assess other reasons why relocation to Taranaki would be in the best interests of the child. At this stage of the child’s life, it is in her best interests for the grandmother to remain as the primary caregiver. The grandmother has occupied that position for almost all of the child’s life and takes almost all responsibility for the child’s upbringing and education. With the exception of the first five months of the child’s life, the mother has never had responsibility for day- to-day care for any continuous period, or even unsupervised contact for more than an hour or two. It would be substantially unsettling for the child to change primary caregivers at this stage of her life.

[52] Other factors suggest that the relocation is in the child’s best interests. She is currently attending primary school, which she is enjoying and, by all accounts, is doing well. This was planned and discussed amongst the wider whanau before relocation, the child had met with her prospective teacher, and was expecting and looking forward to starting school there. The positive experience that the child has had at school to date is a factor in favour of the child’s best interests.

Evaluation of the child’s best interests.

[53] The next stage is to assess whether continuity of the primary caregiver and the child’s positive school experience is sufficiently important to the child’s welfare to justify the disruption to the child’s relationship with her mother and half brother.

[54] It is difficult to make a predictive assessment of the child’s best interests in regard to these two factors. In Carpenter v Armstrong, Heath J proposed that the best interests of the child could be ascertained by identifying the upcoming developmental milestones for the child and which guardian or parent could best meet

the child’s needs in meeting those milestones.18

[55] Adopting that process of reasoning, I consider that the continuance of the grandmother as primary caregiver is central to the child’s welfare. She has successfully occupied this role for almost all of the child’s life and has been solely responsible for the child’s early childhood and primary education. In terms of developmental milestones over the next, say, five years, starting school is likely to be significant, as well as forming bonds with friends and family in her surroundings. The mother has had very little extended contact or responsibility for the child’s care, or for making important decisions in the child’s life. Although this involvement may change in the future, the grandmother is best equipped to serve the child’s needs in the immediate future. Promoting the child’s welfare in that respect justifies the disruption to the child’s relationship with her other family members. I am therefore satisfied that allowing relocation was in the child’s best interests.

[56] The appeal is accordingly dismissed.

Dobson J

Solicitors:

Family Law Specialists Ltd, Porirua for appellant

Aspire Legal Services, Porirua for first respondent

Tania Davis Law, Porirua for the child

18 Carpenter v Armstrong HC Tauranga CIV-2009-470-511, 31 July 2009 at [125].