|
|
Home
| Databases
| WorldLII
| Search
| Feedback
High Court of New Zealand Decisions |
Last Updated: 5 February 2019
|
ANONYMISED VERSION AVAILABLE FOR PUBLICATION IN THIS
FORM. THE NAMES OF PERSONS INVOLVED AND PLACES ARE FICTITIOUS.
SEARCH, COPYING AND INSPECTION OF COURT FILE PROHIBITED
WITHOUT LEAVE OF A JUDGE
|
|
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
|
|
CIV 2012-412-000141
[2013] NZHC 1010 |
|
BETWEEN
|
HENDERSON
Appellant
|
|
AND
|
MORGAN
Respondent
|
|
Hearing:
|
3, 4, 5 and 10 April 2013
|
|
Counsel:
|
L A Andersen for Appellant R Cardoza for Respondent
N Williams, Lawyer for the Children A Chan, Lawyer to Assist the
Court
|
|
Judgment:
|
9 May 2013
|
JUDGMENT OF HEATH J
This judgment was delivered by me on 9 May 2013 at 9.00am pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar
|
Contents
|
|
|
|
The appeal
|
|
|
|
Background
|
|
|
|
Appellate review principles
|
|
|
|
The Family Court’s judgment
(a) The “interim” care judgment
|
|
|
|
(b) The 2010 judgment
|
|
|
|
(c) The 2012 judgment
|
|
|
|
The grounds of appeal
|
|
|
|
Updating evidence
|
|
|
|
Relocation cases: legal principles
|
|
|
|
Positions taken by Lawyer for the Children and
|
Lawyer
|
|
Assisting the Court
(a) Introductory comments [45]
(b) Submissions of Lawyer Assisting the Court [47]
(c) Submissions of Lawyer for the Children [49]
Dr Smith’s evidence [51]
Assessment of “best interests” factors [56]
Analysis
(a) The primary care appeal [76]
(b) The contact order appeal [92]
Result [97]
The appeal
[1] Post-separation disputes about the day-to-day care of children can be difficult to resolve. Those cases in which one parent has moved his or her home to a distant location involve a heightened degree of difficulty. That form of dispute becomes even more acute when the parent who does not have day-to-day care of the children may not have the financial resources to exercise regular contact with the children. This case falls into the latter category.
[2] Mr Morgan and Ms Henderson married on 2 April 1994, and separated in May 2005. They have four children, two of whom are now adults. Mr Morgan lives with the two younger children in Levin. Ms Henderson resides in Paihia.
[3] Ms Henderson appeals against a decision of the Family Court1 which had the effect of changing existing day-to-day care arrangements, in respect of the two younger children, Alan and David, now aged 13 and 8 years respectively. She challenges Judge Coyle’s decision to place those children in the primary day-to-day
1 [footnote omitted]. Relevant parts of the orders are set out at para [29] below.
care of her former husband. If Ms Henderson’s primary appeal were unsuccessful, she contends that the contact she is permitted with the boys should be increased.
Background2
[4] After Mr Morgan and Ms Henderson separated, Mr Morgan had no contact with the two younger boys for some two years. During that time, he was away from Levin. On his return, he applied for a parenting order granting contact in his favour. While Mr Morgan’s application was pending Ms Henderson moved, with Alan and David, to Paihia. Although that was done without consultation with Mr Morgan, it was a step that Ms Henderson had been contemplating for some time. Members of Ms Henderson’s whanau live in the Paihia area.
[5] On 23 June 2010, the Family Court made an order requiring the two boys to be returned to Levin. Ms Henderson returned with them, shortly after the order was made. On 3 August 2010, Judge Noel Walsh made an order that the boys should remain in Levin pending resolution of substantive parenting applications.3
[6] Both Ms Henderson’s and Mr Morgan’s parenting applications were heard over three days in early September 2010. Ms Henderson’s also sought permission for her to relocate the children to Paihia.4 On 16 September 2010, Judge Coyle declined Ms Henderson’s applications.5 On Mr Morgan’s application, he made an order for shared day-to-day care, pending further order of the Court.6 At the time those orders were made, Alan was aged 10 years and David was five.
[7] Ms Henderson appealed against Judge Coyle’s decision. On 9 November 2010, during a case management conference in this Court, Ms Henderson advised that she had accepted an offer to relocate, TO Paihia, for work purposes. For that reason, she was unable to care for the children in Levin. Fogarty J, treating what had happened as a “significant change in [Ms Henderson’s] circumstances”, allowed the appeal by consent, “on the basis that it is no longer relevant”. The proceeding was
2 [footnote omitted].
3 [footnote omitted].
5 [footnote omitted].
6 [footnote omitted].
“remitted back to the [Family] Court for reconsideration in the light of [the] new changed circumstances”.7
[8] There was a dispute between the parties about the basis on which the Family Court was to “reconsider” the application. For Ms Henderson, Mr Andersen submitted that all factual determinations made in the September 2010 judgment were open for reconsideration, whereas other counsel contended that those findings remained and formed the basis on which the effect of the change of circumstances had to be considered. Judge Coyle ruled that evidence at the further hearing would be “limited to the changed circumstances and matters relevant to the determination of those changed circumstances”.8
[9] The second hearing took place over four days in late January and early February 2012. In a judgment given on 17 February 2012, Judge Coyle refused to permit relocation, discharged the existing interim parenting orders and made a final order for day-to-day care of both boys in favour of Mr Morgan.9 At that time, Alan was 11 years old and David was seven.
[10] Although, as part of the parenting order, Ms Henderson was allowed contact with the children in both Paihia and Levin, Judge Coyle expressed concerns about her emotional stability. He directed that:10
11. Ms Henderson is to provide a report from her psychiatrist/psychologist prior to the first period in which she is to have contact with the children setting out confirmation from her psychiatrist/psychologist that she is emotionally stable enough to be able to have contact with the boys without enmeshing them in her own psychological fragility and the issues arising with her out of this decision. No contact shall occur until such a report is made available.
[11] To respond to that direction, Ms Henderson engaged a clinical psychologist (Ms Berry) from whom she had previously received therapy. On 21 March 2012, Ms
7 [footnote omitted].
8 [footnote omitted].
9 [footnote omitted]. The terms of the order are set out at para [29] below.
10 Ibid, at para [104](c)(iii)(11). The concept of “enmeshment”, to which Judge Coyle referred was explained in these terms when Dr Berry (see para [11] below) reported to the Court: “ ... an extreme form of proximity and intensity in family interactions ... [In] an enmeshed system ... [the] boundaries that define individual autonomy are so weak that functioning in individually differentiated ways is radically handicapped”.
Berry’s report was made available to the Court. She expressed the view “that there is no evidence that [Ms Henderson] is emotionally unstable”. Judge Coyle issued a Minute on 5 April 2012, stating:
Report noted. It appears [Ms Henderson] is able to regulate her emotional effect, and thus to have contact with the boys in terms of the Order.
Appellate review principles
[12] Since the February 2012 judgment, Alan and David have been in the primary day-to-day care of their father. That is the actual status quo at present. When the Family Court made its orders, the status quo was shared care in Levin. That change has required much updating evidence on appeal.
[13] Ordinarily, in those circumstances, it would be preferable for the whole question of day-to-day care and contact to be re-evaluated by a Family Court. However, given the problems associated with the original challenge to Judge Coyle’s 2010 judgment, the allowing of that appeal for “reconsideration” by the Family Court, the need for a second decision from Judge Coyle in early 2012 and the time that has passed since that judgment was given, it is preferable for this Court to deal on a final basis with all points raised on appeal. Both boys yearn for finality.
[14] An appeal to this Court against a parenting order is by way of rehearing.11 Those exercising an appeal of that type 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.12 What, if any, influence the Family Court’s reasoning should have on the outcome of an appeal is for this Court to determine.13
[15] In the Family Court, Judge Coyle heard evidence from the parties on two separate occasions, in September 2010 and January/February 2012. Findings of fact made by the 2010 and 2012 judgments, based on the evidence available to the Judge,
13 Kacem v Bashir [2010] NZSC 112; [2011] 2 NZLR 1 (SC) at para [31].
are entitled to respect. However, the evidence given on appeal, based on a different status quo, has changed the underlying premise on which some findings of fact were made by the Judge. On those issues, I have formed my own views and made independent findings of fact, informed by Judge Coyle’s assessment of the prior position.
The Family Court’s judgments
(a) The “interim” care judgment
[16] At the end of May 2010, Alan and David were living with their mother in Levin. Ms Henderson was caring for them under the terms of a parenting order made by the Family Court on 11 September 2006. On 1 June 2010, having had no material contact with the children for some two years, Mr Morgan applied for a variation to that order to define the times at which he could have contact with his children.
[17] On 20 June 2010, Ms Henderson left Levin with the children. This occurred after she had attended a counselling meeting with Mr Morgan on 18 June. She and the children went to live in Paihia at a property that she jointly owned with Mr Turner. He was known to Mr Morgan, having formerly been married to Mr Morgan’s sister. Ms Henderson asserted that she had intended to move for many months and that it was pure coincidence that the move took place shortly after Mr Morgan’s application was made.
[18] On 23 June 2010, the Family Court required Ms Henderson to return to Levin with the children. Ms Henderson became aware of that order on 24 June. She complied with it, returning to Levin (with the children) on or about 4 July 2010. Immediately, she filed a cross application to vary the parenting order so that she and the children could relocate to Paihia.
[19] On 2 August 2010, Judge Walsh heard an application for interim relief, designed to allow Ms Henderson and the children to live in Paihia until the substantive cross applications were heard. The Judge declined that application, primarily because of the availability of a prompt hearing date for the contested
applications. Adjustments were made to the existing order to allow some contact between Mr Morgan and the children. The substantive applications were set down for hearing on 1 and 2 September 2010.14
(b) The 2010 judgment
[20] When considering the cross applications for parenting orders at the September 2010 hearing, Judge Coyle was also required to address questions of safety of the children. Mutual allegations of violence had been made. It was necessary for the Judge to consider the “safety” provisions of the Act, set out in ss 60 and 61, and specific questions involving the position of Mr Turner, who had previously been convicted of sexual assaults on his step-children.
[21] During the hearing, concerns were expressed about proposed arrangements for Mr Turner to have contact with the two boys. As a result of discussions in chambers, Mr Andersen obtained leave to recall Ms Henderson to give further evidence on the topic. In his judgment of 16 September 2010, Judge Coyle said:
[6] Counsel discussed the matter further with their clients, and Mr Andersen sought leave to re call [Ms Henderson]. [Ms Henderson] advised that she would cease all contact with Mr Turner and on the basis that the boys would be having no contact with Mr Turner she urged the Court to confirm the proposed care arrangements, including the relocation to Paihia. However, after further cross-examination her subsequent evidence was that she had recently considered marrying Mr Turner and that she was still supportive of the boys having a relationship with him (but would abide by a no contact order if that was the decision of the Court); this continued to cause Mr Morgan, Ms Williams and me some concern. Nevertheless, Mr Andersen strongly urged me to make the proposed orders.
[7] I determined that I could not make an order by consent in the knowledge that Mr Morgan had developed serious concerns as to whether the proposed orders were in the best interests and welfare of the children. I suggested to counsel that the hearing be adjourned part-heard and that the Court obtain further reports which may or may not address concerns that had been raised in the context of [Ms Henderson’s] and Mr Turner’s evidence. This would also enable the Court to appoint counsel to assist to advocate for the best interests and welfare issues, freeing Ms Williams to argue her clients’ instructions (which were that they wished to relocate to Paihia). Mr Andersen indicated that his client wished to continue with the hearing on the basis of the evidence currently before the Court. I then stood the matter down to enable [Ms Henderson] and Mr Andersen to reflect further on that decision. At the resumption of the matter at the end of the first day of
14 [footnote omitted].
evidence, Mr Andersen indicated he had clear instructions from [Ms Henderson] that she wished to proceed with the hearing.
[8] At the commencement of the second day, Ms Cardoza confirmed that Mr Morgan’s instructions to her were that he resiled from his earlier consent and that he actively opposed the relocation of the boys to Paihia. The hearing, therefore, proceeded on the basis that the Court was required to determine the relocation issue, and then the care arrangements of the boys arising as a consequence of any relocation determination.
[22] It is fair to say that Judge Coyle formed an unfavourable impression of Ms Henderson and the evidence elicited from her. He considered that both she and Mr Turner had “underestimated the potential risks” to Alan and David arising out of her contact with Mr Turner and had also “minimised the extent of [his] offending”. As a result, the Judge concluded that Ms Henderson had “not been as protective towards David and Alan as she should have been, in that she [had] allowed Mr Turner to pray unaccompanied with the children while they [were] in bed at night”.15
[23] Ms Henderson gave evidence about the nature of her relationship with Mr Turner and a “ministry” they intended to form to work with victims and perpetrators of sexual abuse. Judge Coyle recorded:
[39] ..., following an affidavit by Mr Morgan’s sister, ...(the mother of the two children that Mr Turner abused), in which she detailed her belief that [Ms Henderson] and Mr Turner were in an intimate relationship, [Ms Henderson] filed a further affidavit sworn on 29 July 2010. In that affidavit she set out in detail the nature of the business relationship between her and Mr Turner, and her establishment of the [redacted]. It was only at that time that she set out her intention to work with Mr Turner in that ministry to work with victims of sexual abuse and with sex offenders “to bring rehabilitation and healing through Christ”. In direct response to [Mr Morgan’s sister’s] affidavit, she confirmed that she had been in an intimate relationship with Mr Turner but that she had now decided to have a purely professional relationship with Mr Turner in terms of her business and ministry focus. [Ms Henderson] is adamant that the children were never left alone with Mr Turner and that she was, and is, an adequate and protective supervisor.
[24] The Judge harboured reservations about Ms Henderson’s reliability as a witness. An example of why can be found in relation to her evidence about Mr Turner’s role in her life. Judge Coyle said:
[46] Furthermore, in response to questions from Ms Williams [lawyer for the children], and despite the evidence that had come to light during the
15 [footnote omitted].
hearing, [Ms Henderson]’s view remained that if the Court held there should be no contact, she as a police officer would respect the Court’s order. But she also said that in the absence of a Court order her desire would be for Mr Turner to have an ongoing relationship with David and Alan as they enjoyed their relationship with Mr Turner. I set out the following passage of Ms Williams cross examination:
Q Well, do you think Mr Turner should be having contact with the boys?
A Well, that’s what I've been vouching for all along. I think he should be. I should, I think he should be allowed to see the boys.
Q So, you won't be stopping contact? A I will if it's ordered.
[47] That evidence is significant as it contradicts her other evidence. [Ms Henderson], on being re-called at the conclusion of Mr Turner’s evidence, advised the Court that she would cease all contact with Mr Turner. However, she also acknowledged her consideration of marrying Mr Turner, and that the decision to cease all contact had broken her heart.
[48] Then, despite telling the Court that she would ensure the children have no relationship with Mr Turner, she went home and asked the children to tell me that they want to continue to have a relationship with Mr Turner. In explanation, [Ms Henderson] told the Court that she had prayed with the boys that God would perform a miracle, in essence, by influencing my thought processes to allow the children to have an ongoing relationship with Mr Turner.
[49] I have reached the view that [Ms Henderson’s] assertion that she intends to end her personal relationship with Mr Turner is unreliable and one that I cannot rely upon. The evidence establishes that she is clearly conflicted over that decision and despite avowing in Court that contact would cease, she clearly has represented to the boys her view that contact should continue if there could be a “miracle”. [Ms Henderson] clearly felt “boxed into a corner” and it is my view that she gave her evidence out of survival instinct, motivated by her desire to shift at all costs to Paihia. The Court will need evidence arising out of the passage of time to show that she has in fact severed her relationship with Mr Turner.
[25] The Judge also recorded that the children had disclosed to him, during a judicial interview, that they had had unsupervised contact with Mr Turner. That was a response to a question from the Judge about whether there was anything that Ms Henderson had asked them to talk to him about or to tell him. The children said that they wanted Mr Turner to stay and that their mother had told them to say that the previous night.
[26] After an extensive review of the evidence and legal principles, Judge Coyle concluded:
[96] A relocation decision by its nature must be forward-looking and any decision that I reach has to be devoid of any condemnation of any “fault” resting with either parent for what has occurred in the past. These children have lost two years with their father. It is, in my view, contrary to the principles in ss 5(b) and (d) in terms of concepts of preservation and strengthening, to now reduce that contact to holiday contact only. The evidence of [Ms Henderson] has been that David, in particular, has deeply missed not having a father figure in his life and he clearly is enjoying having Mr Morgan back in his life at this time. While David and Alan’s views that they wish to shift to Paihia are important, they are not decisive, and I have reached the view that their views are inconsistent with their best interests and welfare.
[97] Taking into account the findings referred to above, I have decided that the positives for the children in relocating are outweighed by the disadvantages to their relationship with their father. I have decided that relocation to Paihia is not in the best interests and welfare of David and Alan. I have done so for the following additional reasons:
[98] What became apparent to me is that despite entering into a memorandum of consent prior to the commencement of this hearing, Mr Morgan had significant reservations about whether the move to Paihia was in the best interests and welfare of David and Alan. It is clear to me that as the evidence has unfolded he has entirely resiled from believing that relocation is appropriate.
...
Orders
[102] I, therefore, make the following orders:
(c) The 2012 judgment
[27] Further evidence from all of the critical witnesses was given at the hearing in late January and early February 2012. In his 17 February judgment, Judge Coyle summarised his reasons for ordering that Alan and David be in the primary care of Mr Morgan as follows:16
- [100] Notwithstanding that their mother has been their primary attachment figure to date, and notwithstanding that they have a strong wish to shift to live with their mother in Paihia, I have decided that a relocation to Paihia is not in the boys’ best interests and welfare. I have reached that decision in light of all of the above risk factors and evidence but in particular taking into account:
(b) The risks that their being placed in a community in which Mr Turner’s offending is not known, and having contact with a family in which sexual abuse has been endemic, places these boys at an unacceptable risk should anything untoward happen in the future. That risk is elevated by the risk of the boys not disclosing to anyone else if abuse occurred.
(c) While conditions as to non-contact go a long way to reducing the likelihood of those risks, given the strength of feeling and the longevity of those feelings that Ms Henderson has for Mr Turner, and her belief in her calling from God to partner with Mr Turner, I am not at all confident that over time she will not allow Mr Turner to drift back into the boys’ lives.
(d) However, the pivotal evidence for me has been Ms Henderson’s own evidence to this court which has shown a total inability to support and promote a relationship between the boys and their father. The evidence in fact has been that she has undermined that relationship already, and should the boys be in her primary care it is my view, given her evidence in this hearing, that that undermining will escalate and that overtime the boys’ relationship with their father will cease. In forming that view I have assessed of the evidence of the parties, and the evidence of Dr Smith. Those concerns have been heightened by Dr Smith’s evidence as to her opinion that Ms Henderson has begun to engage in alienating behaviour. I have placed much weight on Dr Smith’s evidence.
(emphasis added; footnotes omitted)
[28] The Judge expanded on that summary, by saying:
[101] [Ms Henderson’s] inability to support the boys’ relationship with their father , coupled with her own enmeshment with the boys, presents a real risk that these boys will lose their relationship with their father and that is contrary to the principles in the Act that the boys’ relationship with their father should be preserved and strengthened. Conversely it’s my view that if the boys are in the primary care of Mr Morgan that he will do all he can to promote and strengthen the boys’ relationship with Ms Henderson.
[102] There are real risks in this decision that the boys will be so aggrieved that they will not settle and undermine the relationship with their father. This is a case however where those risks are outweighed by what I perceive as being the greater risks, should they remain in their mother’s care, of their losing entirely their relationship with their father and their paternal family and being exposed to their mother’s ongoing relationship with Mr Turner, and the consequent risks to their safety. But even if Mr Turner were not in the picture, and even if I could be confident that Ms Henderson would not allow the children to see Mr Turner, I still would have reached the same
decision because of Ms Henderson’s overt antipathy and denigration of Mr Morgan and his relationship with David and Alan. As Dr Smith said in her evidence, it is extremely hard for an absent parent to maintain a relationship with their children when they relocate with the other parent. That is simply the consequences of the geography and lack of physicality of presence. But if the relocation were to be allowed I have no doubt on Ms Henderson’s own evidence that those difficulties would be [exacerbated] by her inability to support the relationship and her unwillingness to do so.
[103] In reaching this decision I am conscious of the view of Dr Smith that the boys could cope with a change in their primary care arrangements. Their ability to cope would be heightened with Ms Henderson’s acceptance of this decision but I am not at all confident that she would do so. What I find on the evidence before me is that Mr Morgan has the skills to do all that he can to assist the boys over what will be a difficult transition period as they [grapple] with this decision, and that he will do so in a manner that is pivotal to the welfare and best interests of David and Alan, and the need for them to have an ongoing relationship with Ms Henderson.
(emphasis added; footnotes omitted)
[29] The terms of the parenting order are lengthy. Nevertheless, I consider it is necessary to set out relevant parts at some length as they provide the background against which the appeal must be considered:
On application made to it, the Court orders that Robert Morgan has the role of providing day-to-day care for
David Morgan 31 August 2004
Alan Morgan 01 April 2000
Until the children reach the age of 16 years (or until an earlier specified date or event as the case may be):
While exercising the role of providing day-to-day care for the children, you have exclusive responsibility for the children’s day-to-day living arrangements, subject to any conditions stated below and to any Court order.
If you are a guardian, unless your role or another guardian’s role is modified by a Court order, you must act jointly (eg consulting whenever practicable with an aim of reaching agreement) when making guardianship decisions for a child.
Jane Henderson has day-to-day care of
David Morgan 31 August 2004
Alan Morgan 01 April 2000
During the following times and in the following ways:
CONDITIONS
...
...
e) For five day period Ms Henderson is to have the children in the Otago area, and the term time weekend contact, she is to collect the children with the assistance of a support person (if required) from outside the home of Mr Morgan and deliver the children back to his home.
...
....
The grounds of appeal
[30] Mr Andersen advanced the appeal on four broad grounds. He submitted that the Family Court Judge erred in:
(a) Rejecting Ms Henderson’s evidence that she was frightened of Mr Morgan, when there was uncontested confirmatory evidence before him from their adult daughter that was not challenged in the Family Court.
(b) Failing to appreciate fully the importance of Ms Henderson’s need to move to Paihia.
(c) Failing to give proper weight to the wishes of both children to live with their mother in Paihia.
(d) Making unfair findings against Ms Henderson.
[31] In closing submissions, Mr Andersen accepted that, as a result of my receipt of much updating evidence, it was necessary for me to make my own assessment of what care arrangements were in the best interests of the children. I did not understand any other counsel to disagree with that approach.
The updating evidence
[32] For the purpose of the appeal, I have considered the following updating evidence:
(a) Affidavits from Mr Morgan and Ms Henderson about the way in which the day-to-day care regime imposed by Judge Coyle has worked since his judgment of 17 February 2012.
(b) Cross-examination of Mr Morgan and Ms Henderson on their updating affidavit evidence.
(c) Oral evidence from Mr Turner.17 As one of the conditions of the parenting order, Judge Coyle prohibited the boys from direct or indirect contact with Mr Turner.
(d) Dr Smith, the child psychologist who provided a report under s 133(2)(a) of the Act for the 2012 Family Court hearing, submitted an updating report dealing with developments since the 17 February 2012 judgment.18 Dr Smith was cross-examined on the content of her report.19
(e) Ms Berry was cross-examined on her report.
[33] In a memorandum filed shortly before the appeal hearing commenced, Ms Williams, Lawyer for the Children, advised me that both children wanted to see me to express their wishes that they be permitted to live with their mother in Paihia. I saw the boys on 10 April 2013, after conclusion of the evidence but before submissions. Ms Williams, a Registrar and my Associate were present when I saw the children. My Associate produced a written transcript of what was said. That was distributed to counsel before the end of the hearing. Counsel were given an opportunity to make submissions on matters arising out of the transcript.
Relocation cases: legal principles
[34] There are two distinct aspects of a “relocation” application. One is an application for a parenting order, to define questions of day-to-day care and contact. The other seeks the resolution of a dispute between guardians about where a child or children should live. In practice, the two applications merge because the place where the children will live is inextricably linked to the decision about which parent will have primary care of them.
[35] I am required to undertake a “best interests” inquiry to determine what care arrangements will promote the welfare of the children. That inquiry involves a
18 The terms of Dr Smith’s brief were approved by me on 12 December 2012: [footnote omitted].
19 See paras [10] and [11] above.
consideration of the parents’ respective parenting skills, the place at which the children might live and the nature and workability of the contact arrangements that can be put in place to foster the children’s relationship with the other parent. As it was not contended that the children should be separated, I approach this question on the basis that they will stay together.
[36] In conducting that inquiry, I must have regard to ss 4, 5 and 6 of the Care of Children Act 2004 (the Act), and the purposes of that statute. Those provisions state:
4 Child's welfare and best interests to be paramount
(1) The welfare and best interests of the child must be the first and paramount consideration—
(a) in the administration and application of this Act, for example, in proceedings under this Act; and
(b) in any other proceedings involving the guardianship of, or the role of providing day-to-day care for, or contact with, a child.
(2) The welfare and best interests of the particular child in his or her particular circumstances must be considered.
(3) A parent's conduct may be considered only to the extent (if any) that it is relevant to the child's welfare and best interests.
(4) For the purposes of this section, and regardless of a child's age, it must not be presumed that placing the child in the day-to-day care of a particular person will, because of that person's sex, best serve the welfare and best interests of the child.
(5) In determining what best serves the child's welfare and best interests, a Court or a person must take into account—
(a) the principle that decisions affecting the child should be made and implemented within a time frame that is appropriate to the child's sense of time; and
(b) any of the principles specified in section 5 that are relevant to the welfare and best interests of the particular child in his or her particular circumstances.
(6) Subsection (5) does not limit section 6 (child's views) or prevent the Court or person from taking into account other matters relevant to the child's welfare and best interests.
(7) This section does not limit section 83 or subpart 4 of Part 2.
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 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.
(1) This subsection applies to proceedings involving—
(a) the guardianship of, or the role of providing day-to-day care for, or contact with, a child; or
(b) the administration of property belonging to, or held in trust for, a child; or
(c) the application of the income of property of that kind.
(2) In proceedings to which subsection (1) applies,—
(a) a child must be given reasonable opportunities to express views on matters affecting the child; and
(b) any views the child expresses (either directly or through a representative) must be taken into account.
[37] One of the purposes of the Act is to “promote children’s welfare and best interests, and facilitate their development, by helping to ensure that appropriate arrangements are in place for their guardianship and care”.20 To that end, the Act defines and regulates parental duties, powers and rights, as well as their responsibilities as guardians of their children.21 It articulates the Courts’ powers in relation to the guardianship and care of children22 and requires the Court to respect and take account of the children’s views.23
[38] In Kacem v Bashir,24 the Supreme Court considered whether the Court of Appeal had erred in holding that there was some priority or assumed weighting of the various s 5 principles. The Court of Appeal had held that there was some priority or weighting as between the various s 5 factors, referring specifically to s 5(b) and (e).25
[39] Kacem v Bashir was a relocation case. The mother wished to move to Australia against the wishes of the father. In the Supreme Court, Blanchard, Tipping and McGrath JJ set out the nature of the best interests inquiry, in such a case:
[18] The relocation issue raised in this case clearly comes within the reach of s 4(1). Hence the court must regard the welfare and best interests of the two children involved as the first and paramount consideration. By its references to “particular child” and “particular circumstances”, s 4(2) underlines the case-specific nature of the inquiry. That inquiry must focus on the particular circumstances of the individual case with no presumption of what the welfare and best interests of the child may require or what influence the s 5 principles may have on that question. Section 4(5) makes it mandatory for the court to take into account, in a case-specific way, those of the principles specified in s 5 that are relevant. Section 4(5) also emphasises again that the focus must be on the particular child or children and his, her or their particular circumstances. Section 4(6) makes it clear that the s 5 principles are not exhaustive of the matters that may be relevant to the welfare and best interests of the child or children involved. Nor does s 5 limit s 6, which is concerned with the child’s views on the matters at issue.
[19] It can therefore be seen quite clearly that 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
20 Care of Children Act 2004, s 3(1)(a).
21 Ibid, s 3(2)(a)(i).
22 Ibid, s 3(2)(a)(iii).
23 Ibid, s 3(2)(c).
24 Kacem v Bashir [2010] NZSC 112; [2011] 2 NZLR 1 (SC).
25 Bashir v Kacem [2010] NZCA 96 at para [51].
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.
(emphasis added)
[40] Their Honours emphasised that there is no presumptive weighting of s 5 principles, in any given case. Tipping J, on their behalf, said:
[21] There is nothing in the language of principle (b) or in the structure of s 5 as a whole to suggest that principle (b) or any of the other principles there set out should have any presumptive weighting as against other principles referred to in the section. That could hardly be so when the principles must be considered in all the many and varied proceedings and circumstances in which the welfare and best interests of children come into issue. Relocation is only one of a number of such contexts.
[22] All the principles, save for (e), are couched in the language of “should”. In principle (e) the word used is “must”. As we have already indicated, principle (e), if relevant, will generally carry decisive weight in the factual assessment. That is probably why this principle is couched in terms of “must” rather than “should”. “Should” signals a desirable objective, the fulfilment of which, and by what method, will depend on the presence of other desirable objectives and the facts of individual cases. “Must” signals an essential factual requirement. The ultimate point is that principle (b) cannot be read as having any presumptive precedence over the other principles, or indeed any presumptive precedence of a stand-alone kind.
[23] 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. Put in that way, it is difficult to see how any presumptive weight can properly be given to either side of those competing but necessarily abstract contentions. To do so would risk begging the very question involved in what is necessarily a fact- specific inquiry.
(emphasis added)
[41] Notwithstanding their approach to the weighing of the s 5 factors, the plurality considered that the appeal ought to be dismissed because no material error
was made in the application of the erroneous approach taken in the Court of Appeal.26
[42] I approach the s 5 principles by balancing their application to the fact-specific decision I must make about whether relocation to Paihia with their mother is in Alan’s and David’s best interests. In doing so, I emphasise the inquiry is positive in nature: what is in the best interests of the children? It should not be cast in a negative way: what is the least detrimental alternative? To ask the latter question risks shifting the focus of the inquiry from the children’s circumstances, to the differing personal interests of each parent.27
[43] I have referred to the need for a fact-specific inquiry. Some academic criticism has been levelled at (what is said to be) the unpredictability of Court decisions in relocation cases. There seems to be a perception of an undesirable breadth of “discretion” available to a Judge determining them.28 In Kacem v Bashir, the Supreme Court responded to those criticisms, making it clear that an evaluative decision is required in the circumstances of the particular case. Blanchard, Tipping and McGrath JJ, said:
[34] Some of the writings to which the Court was referred seem to lament the unpredictability of decisions in relocation cases and also the width of the “discretion” given to judges in deciding such cases. For example, Professor Mark Henaghan has written:
Winkelmann J [in LH v PH [2007] NZFLR 737] emphasises that because of the child’s welfare and best interests being the first and paramount consideration, the inquiry is intensely fact specific with little assistance to be derived from decisions in other cases. This contention further highlights the freedom Judges have to use their discretion in the particular case at hand, rather than being tightly bound by past cases, and such freedom arguably has led to the lack of clarity and predictability in this area of law.
[35] These and other concerns identified by the Professor are inherent in the exercise in which judges administering ss 4 and 5 of the Act are involved.
26 Kacem v Bashir [2010] NZSC 112; [2011] 2 NZLR 1 (SC), at paras [44] and [45]. Elias CJ and William Young J took the view that no error of the type articulated by the plurality had been made by the Court of Appeal.
27 Compare Carpenter v Armstrong HC Tauranga CIV-2009-470-511, 31 July 2009 at paras [120]– [126].
28 For example, Mark Henaghan, “Doing the COCAcobana – Using the Care of Children Act for your Child Clients” (2008) 6 NZFLJ 53 at 56; see also Pauline Tapp and Nicola Taylor “Relocation: A problem or a dilemma?” (2008) 6 NZFLJ 94 at 95–97.
Lack of predictability, particularly in difficult or marginal cases, is inevitable and the so-called wide discretion given to judges is the corollary of the need for individualised attention to be given to each case. As we have seen, the court is not in fact exercising a discretion; it is making an assessment and decision based on an evaluation of the evidence. It is trite but perhaps necessary to say that judges are required to exercise judgment. The difficulties which are said to beset the field are not conceptual or legal difficulties; they are inherent in the nature of the assessments which the courts must make. The judge’s task is to determine and evaluate the facts, considering all relevant s 5 principles and other factors, and then to make a judgment as to what course of action will best reflect the welfare and best interests of the children. While that judgment may be difficult to make on the facts of individual cases, its making is not assisted by imposing a gloss on the statutory scheme.
(footnotes omitted)
[44] In this case, both Alan and David have expressed a desire to live with their mother in Paihia. In considering their views, I apply the approach that I took in Blair v Blair:29
- [44] Ascertaining views, taking account of views and placing weight on views are three distinct steps. The weight to be given to a child’s views will vary according to the child’s stage of development and the particular circumstances of the case. In contrast to the position under s 23(2) of the Guardianship Act 1968, the words “age and maturity” do not appear in s 6. In the 1968 Act those words were used to assist a Court to determine the weight to be given a child’s “wishes”. As Professor Mark Henaghan has observed, reference to age and maturity were removed because of the risk that young children’s views would be dismissed as “immature”, without the Court listening to them carefully and seeing whether or not they represent significant feelings for the particular child. Because of the large variations in developmental maturity of different children of the same age, assumptions about a child’s maturity and the weight to be given to his or her views on the basis of the child’s age are to be avoided. The focus of the Court’s inquiry is on the particular child, in his or her particular circumstances, including his or her actual degree of maturity. While maturity will often be a product of age, that is not always the case.
(footnotes omitted)
Positions taken by Lawyer for the Children and Lawyer Assisting the Court
(a) Introductory comments
[45] Understandably, the submissions made by counsel for each parent focussed on the primary care and relocation issues from the perspective of each. Both parents fear the loss of a relationship with the children if they live at a distant place. Each is
29 Blair v Blair [2012] NZHC 2957 at para [44].
concerned that the other will not promote and foster good relationships with the parent who does not have primary care. They also have concerns about their financial ability to meet the costs of regular contact. However, those factors are relevant only to the extent to which they affect the welfare and best interests of the children.
[46] While I have considered the parents’ evidence and their counsel’s submissions, I begin by contrasting the positions taken by Ms Chan, as Lawyer Assisting the Court, and Ms Williams, for the children. While each supports a different outcome, their evaluation of the relevant factors is instructive.
(b) Submissions of Lawyer Assisting the Court
[47] While not expressly taking a particular position, Ms Chan submitted that in assessing relevant factors, other than the children’s views and primary attachment, placement with the children’s father is more likely to mitigate risks to the children inherent in the (likely) continued conflict between their parents.
[48] For example, Ms Chan submits that:
(a) While both parties have the parenting skills to provide for the day-to- day needs of the children, there is evidence that Ms Henderson is unable to prioritise the children’s needs over her own.
(b) There is evidence of risk to the safety of the children. She points to evidence that Ms Henderson’s ability to protect the children is impaired by her lack of perception about the possibility of harm being caused through the children’s association with a convicted sex offender. Ms Chan contends that the evidence suggests that Ms Henderson has a tendency to minimise the effect of sexual abuse and to regard offenders as capable of being fully rehabilitated, as opposed to orthodox wisdom that their predilections require life-long management.
(c) There is evidence that Ms Henderson is unable to co-parent effectively, meaning that the children are constantly exposed to conflict between their parents.
(d) Mr Morgan and Ms Henderson have different “belief systems”. The way in which she behaves may lead the children to believe that their father should be feared. There is a possibility that if Ms Henderson had day-to-day care of the children in Paihia her inability to promote a positive relationship for the children with their father may result in its erosion, over time.
(e) Some of the evidence suggests that behaviour placing the children in a “loyalty bind” may pre-dispose them to losing their relationship with Mr Morgan.30
(c) Submissions of Lawyer for the Children
[49] On the other hand, Ms Williams, in emphasising the weight that she contends ought to be given to the primary attachment and views of the children, submits that returning the children to the mother’s primary care will best promote their welfare and best interests. Ms Williams suggests that what has occurred over the past three years has, in fact, created a relationship between the boys and their father that does not run the risk of being eroded if the children were now placed in the primary care of Ms Henderson.
[50] While acknowledging evidence of the type to which Ms Chan referred that, on its face, tends to point towards primary care being vested in the father, Ms Williams submits that the views and primary attachment should be given paramount weight on the basis that other factors are not sufficiently strong to justify an alternative conclusion.
30 The term “loyalty bind” was used by Dr Smith, in her evidence. It was raised in her first report in the context of the differing views held by Ms Henderson and Mr Turner respectively about the value of Mr Turner’s presence in the boys’ lives. In the second, it was raised in the context of whether Alan and David might have been expected to disclose to their father that they had, at one time, stayed at Mr Turner’s home in Te Kuiti, even though he was not present.
Dr Smith’s evidence
[51] Dr Smith holds a doctorate in psychology and a graduate diploma in clinical psychology. She is registered as a psychologist. She was appointed, in advance of the January/February 2012 hearing to obtain information for the Court and to prepare a report under s 133 of the Act. Dr Smith was reappointed to provide a further s 133 report for the appeal. In those circumstances, she has a comprehensive knowledge of the relevant family dynamics.
[52] Naturally, Dr Smith’s approach to each report was influenced by the status quo pertaining at the time. In her first report, dated 25 November 2011, she was reporting on aspects of the boys’ welfare, in the context of the shared care arrangements then in place.31 Also, at that time, Mr Morgan was living in the vicinity of other family members in Foxton. Subsequently, he moved back to Levin.
[53] Dr Smith’s second report is dated 8 March 2013. At this stage, it was Mr Morgan who had day-to-day care of the children with periods of contact for Ms Henderson to exercise.32 The material in the updating report has assisted my evaluation of the children’s needs.
[54] In her first report, Dr Smith was asked to explain the “normative developmental milestones” for each of the two boys at their particular stage of life and over the following five years. Dr Smith was also asked to report on each parent’s attitudes and competencies to meet those needs. No updating information was required on those developmental milestones. Given that the information provided in the first report was designed to cover a period of some five years, I consider the conclusions expressed in Dr Smith’s first report remain valid.
[55] In evaluating the evidence, I have found Dr Smith’s evidence on developmental milestones provides a foundation on which to begin my best interests inquiry. They are focussed on the children, as individuals, and allow me to assess the parent who can best enable them to meet their immediate and medium term needs. Reporting on those milestones, Dr Smith said:
31 [footnote omitted].
32 [footnote omitted]. The relevant terms of the parenting order are set out at para [29] above.
4.1.1 With respect to Alan (11.5 years)
[21] Alan is on the verge of entering the early adolescent phase of development which spans from 12–16 years of age. In this phase young people typically have an increasing desire for autonomy at the same time as they need high levels of parental intimacy and support (see Papalia et al 2009). Mood swings can become more frequent, as can feelings of self consciousness, loneliness, and depression. The development of identity is a key feature at this stage (ibid).
[22] In this phase particular consideration needs to be given to the impacts of relocation on the outside support systems of the young person (eg on peer relationships, social and sporting activities). Many of the influences on development are occurring outside of the home versus being mediated through parent-child relationships as occurs in younger age groups. Waldron (2005) contains a discussion of this, and a summary of the normative developmental phases for children and how these need to be considered when looking at the question of relocation. It is noted that a change in context in this age group can significantly change a child’s adjustment, particularly from age 13 onwards (ibid). Hence, a young person who is functioning well in one context may not function as well when the context changes.
[23] The writer reviewed Alan’s psychological wellbeing and development to see if there are any particular needs that should be made known to the Court. When interviewed, Alan was happy with his friendships and enjoyed his school (except when it was “boring”). He rates his own happiness as being 5 on a 10 point scale, and said the lower happiness rating was because he had to come back from Paihia when he didn’t want to. There were no indications of clinical depression or anxiety.
[24] The school advised that Alan is achieving well and is performing at or above national standard in all subjects. He is not regularly completing the required homework, but due to his intelligence this does not negatively impact on his performance. In the school setting he is seen as an emotionally stable, but quiet boy. He has one or two close friends, but he can appear lost if they are not around according to school staff. Ms Henderson also noted that Alan does not appear that socially confident when he is outside the circle of his close friends.
[25] Ms Henderson raised multiple concerns about Alan’s wellbeing, some which were quite serious in nature (eg she suggested that he was dissociating). Whilst there are indications that both boys are being impacted negatively by what is happening the data collected did not support the notion of Alan having significant psychological problems. Alan is meeting all the expected developmental milestones.
4.1.2 With respect to David (7.5 years)
[26] David at age 7.5 years is in the early part of the phase referred to as “middle childhood” and he will remain in the phase for the net 3–4 years before entering adolescence. In the middle childhood period children are better able to tolerate absences from a parent, and they begin to form and consolidate peer relationships. Parental guidance around conduct is still required, but typically aggressive behaviour declines. Cognitively, children
are beginning to have a better understanding of cause and effect and are beginning to be able to infer information (see Papalia et al 2009). There is a slow shift towards a focus on life outside of the home, with the emphasis being on sport, familiar school environment, relationships outside the family (eg with a special coach). Some researchers highlight the importance of contact with same gender parents in this age group, particularly for boys in terms of positive outcomes for their social and school (see Waldron 2005 for a summary).
[27] The assessment outcomes indicated that David is meeting the expected milestones but, like his brother, he is showing some indicators of negative outcomes related to the current care arrangements and the uncertainty round his future. At interview, he reported he was satisfied with his friendships although he did comment that some of his friends could be annoying at times. He said that school is “good”, but he can find it boring. He has a good level of self-esteem, commenting that “I like who I am”.
[28] In terms of educational achievement, David has made improvements this year having previously shown delays in reading. His homework is inconsistently completed, and the teacher thought this was because work was not being transferred effectively between the two homes. Mrs Morgan has sought additional teaching material for David, and David’s teacher said that he thinks her efforts have resulted in some of the improvements seen. David can fluctuate in his ability to attend in class. The early removals from school and absences (see paragraph 59) in the first two terms did create stress both for David and the school.
[29] The writer was concerned that, whilst outwardly, David appears to be the more confident and extroverted child; there are signs that his sense of security is being adversely affected by the current dispute over care arrangements. During his interview with the writer, he was drawing a picture which he then displayed. The picture was of his home with only him and his brother there. He had then drawn a label with “Name” and “fonmber” (phone number), similar to a luggage label. Asked about his drawing, he showed me the part of the drawing that was his home, and then said that he needed the label with his phone number of it “to keep me safe” (ie to stop him becoming lost and not being able to get home). In the writer’s opinion, this drawing and David’s explanation of it gives us a clue to the sense of dislocation David feels, and his desire for stability/security.
(emphasis added)
Assessment of “best interests” factors33
[56] Whatever the outcome of this decision, I emphasise to both Ms Henderson and Mr Morgan the desirability of letting the arrangements remain in place unless there is an unexpected and material change in circumstances that justifies a fresh approach to the Court. For the children, a period of stability in their living arrangements and their interactions with each parent, is essential. Those
33 Sections 4, 5 and 6 of the Act are set out at para [36] above.
observations are based on my discussions with the boys and the insight provided by Dr Smith when she reported on developmental milestones.34
[57] Section 4(1) of the Act focuses attention on the needs of a particular child. That is understandable as different outcomes may best promote the interests of individual children of different age and maturity. However, in the context of a case in which all parties agree that the children should not be separated, an evaluation of the needs of each child must be transposed into an assessment of what is in the best interests of the children, given that they need to live together.
[58] This point was addressed by the Supreme Court in Kacem v Bashir. The majority observed that “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”.35 Those observations were made in the context of a relocation case involving two children in which there was no suggestion that the children live apart.
[59] Section 5(a) makes the obvious point that the children’s parents and guardians should have the primary responsibility for their care, development and upbringing and should be encouraged to agree on their own arrangements. Any parent who has the best interests of his or her children at heart should realise the importance of these parts of the parental and guardianship functions and strive to comply, notwithstanding any personal animosity between them that has been caused by the breakup of the relationship.36
[60] Since Mr Morgan returned to the Levin area in 2010 and Ms Henderson first moved to Paihia with the children, they have been unable to agree on anything of significance about the children’s needs. Ms Henderson has not been prepared to meet or talk to Mr Morgan. While I accept that she has genuine fears of Mr Morgan and seeks to avoid all contact with him on the evidence I consider that they are not objectively justified. They were evident from the fact that she elected to absent
34 See para [55] above; in particular, paras [25] and [29] of Dr Smith’s report.
35 Kacem v Bashir [2010] NZSC 112; [2011] 2 NZLR 1 (SC), at para [19]. See also para [18].
herself from the courtroom during the appeal when she was not giving evidence. The fact that she was not in Court during most of the appeal hearing has not counted against her; but the underlying cause of her absence is a relevant factor.
[61] Not only is there an actual inability to discuss matters of significance but also, on the part of Ms Henderson, an unwillingness to do so. This lack of meaningful interaction between the parents is likely to continue. The risks and consequences of that behaviour to the children may be different, depending in whose primary care they live.
[62] Towards the end of the hearing, a possibility for some form of controlled communication emerged. The suggestion is that a unique email address could be provided by each parent, to which only they would have access, for the purpose of communicating about the children’s welfare and needs. Even then, Ms Henderson was reluctant to deal directly with Mr Morgan (unless the regime were strictly regimented) and my impression is that she would probably delegate that function to someone else who can act as an intermediary between Mr Morgan and herself.
[63] While that is likely to improve general communication, the inflexibility of the system could continue to affect the parents’ ability to contact one another promptly and to respond to any emergency; for example, to decide whether a child should have invasive surgery for a serious medical complaint. Decisions of that type should not be left to one parent alone, unless extreme urgency so dictates. They are decisions for which parental responsibility should be shared.
[64] In terms of s 5(b), there needs to be stability in the children’s care, development and upbringing.37 Alan is in the early stages of adolescence. David, while younger, is close to his brother. As Alan begins to exercise greater independence in decisions affecting him, there will need to be sound parental guidance to ensure no conflict emerges between Alan’s and David’s needs.
[65] In terms of s 5(c), the need for the children’s care, development and upbringing to be facilitated by “ongoing consultation and co-operation among and
37 See also, para [56] above.
between the [children’s] parents and guardians” is not presently possible, for the same reasons that apply to the parents’ inability to agree upon their own arrangements in that regard.38 Measures must be put in place to provide incentives for some degree of consultation and co-operation to emerge, irrespective of where the children actually live.
[66] To meet the factors addressed in s 5(d), contact orders will need to be put in place to encourage the children’s relationship with those parts of their extended family/whanau in the area of the parent who does not have primary care of the children.
[67] Section 5(e) of the Act is addressed to the important topic of safety. The children’s safety was a significant factor for changing the care arrangements. That seems clear from the way in which Judge Coyle expressed his reasons for dismissing Ms Henderson’s applications for the children to live in Paihia in her primary care, in September 2010 and February 2012. The Judge was concerned, in February 2012, that Ms Henderson remained “oblivious to the risks posed by Mr Turner”, the risks of the children being placed in a community in which Mr Turner’s offending was not known, the risk of sexual abuse which might not be disclosed to anyone else and his lack of confidence that, despite Ms Henderson’s evidence before him, she would “not allow Mr Turner to drift back into the boys’ lives”.39
[68] All counsel accepted that Ms Henderson now has a greater understanding of the reasons why Judge Coyle changed the care arrangements in 2012. However, while (for example) she seems to have accepted the need not to see Mr Turner and for the boys not to be in his presence, I have the impression that if she felt again called by God to the “ministry” she was to conduct with Mr Turner (in relation to victims and perpetrators of sexual abuse) there is a real risk that contact could resume. Like Judge Coyle, I have concerns about Ms Henderson’s belief that Mr Turner is “cured” of sexual offending. It is contrary to empirical evidence that demonstrates that sexual offenders require constant management to minimise the risk
38 See para [56] above.
39 [footnote omitted]
of reoffending.40 Dr Smith has identified an allied risk; namely if something did happen the boys are unlikely to report it because they know that any conduct that reflects badly on their mother is likely to affect their ability to see her regularly.
[69] Having heard oral evidence from both Ms Henderson and Mr Turner, I am satisfied that the relationship has de-escalated and that they are now only communicating on occasion to deal with such things as the mortgage payments on the Paihia property which they own. They do not have an intimate relationship. Although Ms Henderson and Mr Turner remain good friends, Ms Henderson now understands that a close relationship with him might put her relationship with Alan and David into jeopardy.
[70] Mr Turner is living in Te Kuiti. He is not likely to have contact with the boys in Paihia. I consider that the risk to the boys’ safety is significantly less than it was when Judge Coyle changed the care arrangements in February 2012. While the risk cannot be eliminated, it is no longer a decisive factor.
[71] In terms of s 5(f), I am satisfied that the children’s identity will be preserved in the care of either parent. That identity will, over time, be strengthened by exposure to both sides of the family and their respective cultures.
[72] The children have been given an opportunity to express their views on the issues I must determine.41 While both want to be in the care of their mother, in Paihia, each also wants to retain a meaningful and close relationship with his father. Although Alan understands the difficulty of the problems caused by the need to travel long distances, David has no real sense of the time involved.
[73] My overall assessment of the children is that they are (particularly given the changing circumstances in which they have lived over the past three years) intelligent and socially adept, for their age. Each has a good sense of humour. I suspect that neither is presently performing at school to his potential. But, that is more a function of the circumstances in which they have had to live than anything
40 [footnote omitted]
41 Care of Children Act 2004, s 6(2)(a), set out at para [36] above.
else. A greater degree of stability, wherever that may be, is likely to ease their growth into adolescence and adulthood. Despite their parents’ inability to deal with each other in a co-operative manner, each is to be commended for the way in which the children have developed in their respective care.
[74] The children’s primary attachment to their mother is wholly understandable. She was their figure of stability and safety in the period after the parents’ separation in May 2005. It is unsurprising, having regard to Ms Henderson’s role as a primary caregiver until September 2010 and a participant in shared care, from September 2010 until February 2012, that the children would prefer to be in her care, rather than their father’s. That is not to undermine the extent of the children’s bond with their father. I assess that as relatively strong.
[75] Section 4(3) of the Act reiterates that a parent’s conduct is to be considered only to the extent that it is relevant to the child’s welfare and best interests. I consider that some of Ms Henderson’s conduct has caused difficulty in fostering a good relationship between Mr Morgan and the children.42 Indeed, had Judge Coyle not changed the primary care arrangements in his judgment of 17 February 2012, given Ms Henderson’s mindset at that time, I consider that it likely that Mr Morgan would have lost any meaningful contact with the boys by now.
Analysis
(a) The primary care appeal
[76] In K v G,43 Gendall and Ellen France JJ observed that children were not prizes to be awarded to a parent for good behaviour, and nor were they to be used as sanctions to punish bad behaviour. What is required is a prediction of what is necessary to meet the best interests of the children. That is the “first and paramount consideration”.44 In a case like this, any Judge would wish to have a crystal ball from which the future could be unerringly ascertained. But, all Judges are human. I have no more ability to predict the future than any other adult with equivalent
42 See para [81] below.
43 K v G [2005] 3 NZLR 104 (HC) at para [20].
44 Care of Children Act 2004, s 4(1). See also para [42] above.
experience of human behaviour. So, I remind myself that past conduct is often the best predictor of future behaviour.
[77] My starting point involves four uncontestable propositions:
(a) Each parent loves the children and is able to care for the children on a day-to-day basis.
(b) Alan and David could live happily in the day-to-day care of either parent.
(c) The children have a primary attachment to their mother and have consistently expressed firm wishes to live with their mother in Paihia.
(d) In whomever’s primary care they may be, the children (and the parent without day-to-day care) will inevitably suffer from the problems inherent in arranging contact, given the distance between Paihia and Levin and the inherent difficulties with both transport and cost.
[78] Over the last three years, the children have been subjected to three different care regimes. Before the August 2010 hearing before Judge Walsh, they were in the primary care of their mother, in Levin. Following Judge Coyle’s 2010 judgment, they were in the shared care of the mother and father, in Levin. After the 2012 judgment, they have remained in Levin with their father and have enjoyed periodic contact with their mother, either in Paihia or Levin.
[79] In this case, the s 5 criteria that assume most importance are:45
(a) The need for stability in the boys’ lives. Continuity of the present living arrangements will best promote this goal. The boys have settled and integrated into a satisfactory routine in Levin.
45 Section 5 is set out at para [36] above.
(b) The need to keep the children safe. This issue arises primarily out of Ms Henderson’s prior association with Mr Turner and the risk that the children will be exposed to a proven child sexual offender, if Ms Henderson were to rekindle her “relationship” with Mr Turner, whether for the purpose of conducting the “ministry” that she believes God has called on her to perform, or otherwise.
(c) The ability of the respective parents to co-parent effectively, even though at a distance. Primarily, this relates to the exercise of guardianship responsibilities about which Mr Morgan and Ms Henderson will need to communicate, in the best interests of their children. It also encompasses their respective abilities to foster a meaningful relationship between the children and the parent who does not have primary care of them.
(d) The views that Alan and David have expressed to live with their mother in Paihia, the reasons for those views and the impact of their primary attachment to their mother.
[80] Ideally, Alan and David should be able to enjoy a positive relationship with each parent. However, there are three significant obstacles to that:
(a) The first is the inability of each parent to trust the other and to communicate on questions of guardianship and contact in a constructive manner. The cross-allegations of violence made in earlier proceedings in the Family Court and the fact that Mr Turner’s sexual offending occurred within Mr Morgan’s wider family, to exacerbate the existing lack of trust.
(b) The second is the distance between Levin and Paihia. The distance from Levin to Paihia is about 860 kilometres, which can take over 12 hours to complete by road. By air, it would be necessary to get a flight from Wellington to Auckland, and then on to Kerikeri. In reality, it would be easier for contact to be undertaken if Ms
Henderson or Mr Morgan were living in Sydney; there would be direct flights from Wellington at relatively lower cost.
(c) The third arises out of difficulties that might arise in fixing contact times, having regard to the children’s own commitments at school or, for example, with sport. Those considerations point to the need for flexibility in contact arrangements. There is a risk that, as they get older and become more independent, the boys could begin to resent the need for them to travel consistently to a remote location, as opposed to the other parent travelling to see them. Yet, the parents’ inability to interact with each other in a collaborative way means that rigid contact times may need to be crafted. I find this aspect concerning because, given the differences in age between Alan and David, rigid contact arrangements are likely to require Court adjustment as Alan moves further into adolescence and requires greater flexibility. Continued Court involvement is not in the best interests of these two boys.
[81] There are other aspects of the evidence that cause me concern. All directly or indirectly impact upon the quality of the relationship that Alan and David could expect to have with their father, if they were permitted to live with their mother. They are:
(a) Ms Henderson is not prepared to speak to or communicate directly with Mr Morgan over issues of guardianship or contact. She made it clear, in evidence, that that situation will continue until either Mr Morgan “repents” of allegations that he has previously made against her or God tells her it is time for her to do so. I think it is fair to say that Ms Henderson seems unable to focus discretely on the interests of the children, as opposed to her own. I do not believe there is any malevolent motive on Ms Henderson’s behalf. It is simply that she cannot comprehend that her own best interests could be different from those of the children. In her mind, the two will always coincide. She
believes that she must put her own emotional well-being first, in order to be a good parent.
(b) Ms Henderson’s actions in the period leading up to the appeal hearing demonstrated a lack of transparency on her behalf. Dr Smith’s inability to observe the children in her care in Paihia, in the absence of a third person, meant that a balanced assessment of the boys’ behaviour in the care of each parent could not be given. This was exacerbated by Ms Henderson’s decision not to provide detailed updating evidence in respect of the times when the children had been in her care, something that might have remedied (at least in part) the absence of any comment from Dr Smith on her interactions with the children. It should not have been left to counsel for other parties to extract information orally from Ms Henderson on that subject.
(c) Ms Henderson believes that she does not need the burden of dialogue with Mr Morgan about the care arrangements. She is not prepared to move from her position that she must remain in Paihia. She is not prepared to commit to paying for contact costs, citing the fact that she is on extended leave from her current job and is not yet sure whether (or when) she will return to work. While I do not believe that she means it in this way, the general theme that runs through her evidence is the notion that if I were not to place the children in her day-to-day care, she would lose touch with the children because of financial constraints placed upon her. Ms Henderson’s present lack of earning capacity results from her own choice to take extended leave; whether that choice was made for good or bad reasons is beside the point.
[82] On the other hand, I am satisfied that Mr Morgan has done as much as possible to encourage a relationship between the boys and their mother. In fact, Ms Henderson has been able to achieve greater contact with the children than was anticipated in Judge Coyle’s orders. Nevertheless, some criticism can be made of Mr Morgan for failing to disclose in an updating affidavit that the boys had told him that they had not been in the presence of Mr Turner when they stopped at Te Kuiti en
route to Paihia on one occasion. Lack of candour of that type causes me concern. While it was an understandable response in a human sense, Mr Morgan should have made it clear that the boys had told him that Mr Turner was not present, rather than to state an (incorrect) assumption to the contrary. That evidence only serves to emphasise Mr Morgan’s continued distrust of Ms Henderson. He cannot accept that there has been any diminution in the risk to the children that Mr Turner might pose.
[83] When Alan attains the age of 16 years he will be able to make his own decisions about where he wishes to live. It is also important that the parent having primary care should appreciate that his or her role will change over the next three years from that of a parent directing what Alan should do to a role more akin to an adviser or counsellor.46 As I intend my order on primary care to create a stable environment for the children over the next few years, an important factor, under this heading, is an assessment of the parent best able to fulfil that transitional role.
[84] I have no doubt that Mr Morgan is better placed to assist Alan as he reaches adolescence and moves towards adulthood. He has recognised Alan’s need to gradually become more independent and is encouraging him in that direction. Dr Smith’s evidence confirms that Mr Morgan is better able to fulfil the role of an adviser or counsellor than Ms Henderson. Relevant to that assessment are concerns about the possibility of enmeshment.47 While I am satisfied that enmeshment (in the sense in which that term was defined by Ms Berry)48 is not a current risk, I am not confident that Ms Henderson is presently capable of allowing each child to grow as an independent person. I refer to an extract from Dr Smith’s second report, in which she raised questions about the way in which Ms Henderson viewed her relationship with Alan; similar concerns arise in relation to David:
[49] ... For example, Ms Henderson was asked about her relationship with Alan and any changes that she thought had come about as a result of the new care arrangements. She described her relationship with Alan as being like a banana and a boy, saying that Alan loves bananas, and he looks to her as his provider to empower and fill him (hence, the “banana”). She considered that “bananas have been made a [scarce] source in his diet”, so Alan was therefore “empty”. She declined to elaborate further on what she meant, saying that she could do so but was going to “leave it at that”. At another
46 For example, see Hawthorne v Cox [2007] NZHC 840; [2008] 1 NZLR 409 (HC) at paras [60]–[65].
47 See para [10] above and fn 10.
48 See fn 10 above.
point in the first interview, a discussion was held about Alan and low mood. Ms Henderson said the low mood was sporadic, saying “I say sporadic because I deal with the moods and empower him to overcome difficult emotions/moods”. There is a sense in which Ms Henderson sees herself as integral to Alan’s wellbeing; the provider, the one who fills him, empowers him. Every parent is integral to a child’s life, but there is a need to see the child as an autonomous person in their own right and to assist in their growth towards independence, reinforcing their coping skills and resiliency, particularly when the child is in the adolescent phase of development as Alan is.
[85] I have already discussed in some detail the topic of keeping the children safe.49 I concluded that the risk that the boys might be exposed to Mr Turner (in circumstances in which Ms Henderson still believes that he is “cured” of sexual offending) poses a risk that cannot be eliminated when considering where the best interests of the children lie. It is a factor that tells in support of Mr Morgan having primary care of the children.
[86] I am satisfied that Mr Morgan is more likely to promote a continued and meaningful relationship between the boys and their mother. Nevertheless, his best efforts will count for nought if there were no sign of reciprocity from Ms Henderson. On her evidence, there is no prospect, in the immediate future (perhaps, even the medium term) that she will feel sufficiently safe from Mr Morgan to alter her approach. It is conceivable that the use of dedicated email communications might assist this process, though that cannot confidently be predicted.50 The best interests of the children favour them living with a parent who will, at least, attempt genuinely to contact the other when important guardianship decisions fall to be made. Sadly, I have no confidence that Ms Henderson would contact Mr Morgan, in such circumstances.
[87] The views of the children are important, as is the nature of their attachment to their mother. I respect and take account of the children’s wishes. However, I do not find them so compelling as to justify a decision to place the children in their mother’s primary care, when they are weighed against the other considerations to which I have referred.
50 See para [62] above.
[88] My interview with the children demonstrated to me that they wish to have a good relationship with both parents and while they may be “sad” if their wishes were not met, I am confident that they will continue to function well in Mr Morgan’s care. Provided Ms Henderson is prepared to commit to specific contact arrangements, I consider her relationship with the children will remain intact and, over time, will blossom beyond that which currently exists.
[89] In Kacem v Bashir,51 Blanchard, Tipping and McGrath JJ said that, at “the highest level of generality” the outcome of a relocation application will likely turn on whether “the children’s interests are best served by promoting stability, continuity and the preservation of certain relationships” or their best interests will be better served by allowing relocation with a particular parent. This, in my view, is a case in which the need for stability, continuity and fostering of existing relationships assumes particular importance.
[90] All factors other than the children’s views and their primary attachment to their mother point in favour of day-to-day care being with Mr Morgan. I am satisfied that he is attempting seriously to understand his changing role as a parent and guardian and will encourage the boys to achieve their potential, whether academically, sporting or (most importantly) as independent people.
[91] In those circumstances, Ms Henderson’s appeal on the primary care issue cannot succeed.
(b) The contact order appeal
[92] Understandably, counsel’s energy at the appeal hearing was focussed on the question of day-to-day care. While there was some discussion about terms of contact, it was insufficient for me to define what should occur, without the benefit of further submissions.
[93] My intention is to outline various issues that arise and to indicate the type of commitment that I expect from each parent to ensure contact arrangements work
51 Kacem v Bashir [2010] NZSC 112; [2011] 2 NZLR 1 (SC) at para [23], set out at para [40] above.
well, from both the children’s and their points of view. When I tell the children of the decision I have made on day-to-day care, I will inform them that I am hearing further from counsel at a later date to ensure that each parent has the opportunity to commit to workable arrangements that will enable them to see their mother as frequently as possible.
[94] I summarise the factors that I consider to be important in relation to the definition of contact so that counsel can consider them and make further submissions:
(a) There is a need to ensure that the children see Ms Henderson as frequently as possible, both in Paihia and at a location in close proximity to Levin. I use the term “close proximity” advisedly. Ms Henderson explained that the “shame” she felt at losing primary care of the children means that she cannot bring herself to go out with the children in Levin; though she regards that aspect as subsidiary to her general fear of seeing Mr Morgan on the streets. Ms Henderson should consider carefully whether some of the contact time could be spent in Wellington, or some other place in proximity to Levin. I am anxious to limit the boys’ travel as much as is reasonably possible.
(b) A “travel fund” will need to be established to enable the boys to travel to Paihia, or for Ms Henderson to travel to a place near Levin at which contact can be enjoyed. Both parents should contribute to this travel fund on a regular basis so that, well in advance of contact times, funds are available to pay for airfares at a lower cost than would otherwise be achievable. On occasions, where road travel is considered more desirable, each parent may wish to consider the possibility of driving to Hamilton for change-overs, with one night being spent there to break the children’s journey from one end of the South Island to the other.
(c) It will be necessary to identify no more than three people who will attend to change-overs for contact purposes and for the particular
person to be present on a specific occasion to be nominated no less than (say) three days before change-overs occur. It is important that the children not be left to wonder into whose care they will be delivered at change-overs.
(d) Both Ms Henderson and Mr Morgan must focus on the needs of the children, in relation to their communication. That will require the establishment of a dedicated email address at which contact can be made between Ms Henderson and Mr Morgan directly, but solely for the purpose of dealing with issues relating to contact times and guardianship discussions. If Ms Henderson were not prepared to deal directly with Mr Morgan in that way, I will need to be assured that any arrangements for delegation she may wish to put into place will not impede the ability for both parents to make jointly any urgent decisions about the children’s welfare. Each parent would need to commit to checking the email address on a regular basis.
(e) Both of the children should have the ability to contact their mother by telephone or email when they wish to do so. I envisage that each child should be able to speak by telephone in private to their mother, or to communicate by email. I would prefer to allow that type of communication to take place as and when the children (or Ms Henderson) thought necessary. Skype contact is also to be encouraged. It should be possible to set up a dedicated email address for each of the children to communicate with Ms Henderson. If that address were secure, Ms Henderson is likely to have greater confidence that she can communicate regularly and privately with the children. Similarly, a mobile telephone could be provided to each child, for this purpose.
[95] As no counsel suggested that the condition requiring no contact with Mr Turner be changed, I intend to include that in any contact order.
[96] I would also appreciate submissions on whether a further report from Dr Smith on contact issues would be helpful and whether Ms Williams, as Lawyer for the Children, should have any continuing role in relation to the oversight of contact arrangements.
Result
[97] A further hearing will take place at 2pm on 9 May 2013. I would appreciate submissions at that stage on whether a further report should be obtained from Dr Smith. I will also hear from counsel on the suitability or otherwise of the timetabling directions set out below.
[98] Although I have said that Ms Henderson’s appeal against the day-to-day care order fails, I will formally adjourn the appeal for a further hearing at 10am on 9 August 2013. At that time, I shall hear from counsel on the terms of the contact orders that I should make.
[99] Submissions at the 9 August hearing should address the specific matters to which I have already referred, and any other issues that counsel believe should be considered. I establish the following timetable for the exchange of submissions on the question of contact:
(a) Submissions shall be filed and served on behalf of Ms Henderson on or before 28 June 2013.
(b) Submissions shall be filed and served on behalf of Mr Morgan on or before 14 July 2013.
(c) Submissions shall be filed and served by both Lawyer for the Children and Lawyer Assisting the Court (whom I expect to confer beforehand) on or before 2 August 2013.
[100] All questions of costs are reserved.
[101] I thank counsel for their assistance.
P R Heath J
Delivered at 9.00am on 9 May 2013
NZLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.nzlii.org/nz/cases/NZHC/2013/1010.html
