Abbott v Blair [2013] NZHC 2358 (10 September 2013)

Last Updated: 27 September 2013

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CIV 2013-425-000262 [2013] NZHC 2358

BETWEEN B ABBOTT Plaintiff

AND A BLAIR Respondent

Hearing: 4 September 2013

Counsel: A M Morgan-Roberts for Applicant

R R Smith for Respondent

T McKenzie - Counsel for Child

Judgment: 10 September 2013

_{JUDGMENT OF WHATA J}

[1] BA seeks to appeal from a decision of the Family Court1 permitting the respondent, AB, to relocate with their child to Hamilton.2

[2] Ms Morgan-Roberts contends for the appellant that a number of errors were made but in particular that the Court put excessive weight on the respondent’s welfare and happiness without a proper evidential basis, and placed insufficient weight on the interests of the child. She is supported by counsel for the child, who says the harm to the child has not been properly factored into the assessment.

Family Court judgment

[3] Judge Somerville set out the background noting that the parties are parents of

_{a little girl called “D”. He identified the chief legal considerations as follows:}3

1 _{KKH v KRB [2013] NZFC 4453.}

2 _{Names in this judgment are fictitious.}

3 _{At [7].}

ABBOTT v BLAIR [2013] NZHC 2357 [10 September 2013]

(a) Firstly [D’s] welfare and best interests must be the Court’s first, and

paramount (which means most important) consideration.

(b) Secondly, the Court is to refrain from generalisations, and instead it is to concentrate on what is in the welfare and best interests of this child in her circumstances.

(c) In deciding what best serves her welfare and best interests, the Court has to take into account the matters specified in s 5, namely that [D’s] parents and guardians should have the primary responsibility for the arrangements relating to her care, development and upbringing. I have already mentioned that. You are already doing that.

(d) That there is continuity in these arrangements.

(e) That her care, development and upbringing should be facilitated by ongoing consultation and co-operation between the parents. Again, you are already doing that; I will simply be reinforcing that.

(f) That relationships between [D] and members of her family and family group should be preserved and strengthened; that her safety must be protected; that her identity should be preserved and strengthened.

(g) The Court is also to have regard to other matters relevant to her welfare and best interests. These includes (sic) issues of love and security for her, including the strength of existing and future bonding with her parents, the attitudes and abilities of those parents, the support that each of them would give to her continued relationship with the other, and the stability of each home environment.

(h) Her opportunity for personal growth, including the commitment that each of her parents would make to having quality time with her. Availability and suitability of role models for her. The provision of material support and educational opportunities, and the stimulation that might be provided by each parent.

[4] The Judge also acknowledged that he should take into account [D’s] views, but being only just over one year old, he relied on her counsel for guidance. He also considered that he was required to take into account the freedom of movement that is important in our society. The Judge then identified five things he noticed from the

evidence, namely:4

(a) [AB’s] family moved frequently during her upbringing while her father took up employment opportunities.

_{(b) [AB] came to Southland to be with [BA].}

4 At [9].

(c) [BA’s] present partner is from mainland China, and she came to

Invercargill to further her education.

(d) One of [AB’s] sisters who grew up with her in the North Island now lives in Queensland, and flew over to be with her after [D] was born.

(e) Finally, [BA] is likely to have to move from Invercargill in the future if he is going to foster his employment opportunities. Invercargill is a great place to live, and I have noticed that it is a springboard for people who wish to further their employment. At least three of my colleagues on the bench in Christchurch were lawyers in Invercargill, and are now Judges in Christchurch.

[5] The Judge also notes that there has never been domestic violence, either in the relationship between the parties or in subsequent relationships. The Judge also felt that the two parties can foster [D’s] identity wherever she lives and he had no concern about continuity of [D’s] arrangements.

[6] The Judge then noted that wherever [D] lived there was going to be difficulty in her having ongoing relationships with the other side of her family (ie the family of one of the parents). Similarly, the participation of family in [D’s] care and development will be precluded for one parent depending on where she lives.

[7] The Judge then described the deciding factors in this case and noted that at present [D] has access to both her parents and if she were to go to the Waikato then initially at least she would not be able to see her father every day and that this would impact on her development. He then says:

[18] But in all of these situations, when you identify a detriment you must go on and say, “Is there a way of this being ameliorated? Can something be done to improve the situation?” Firstly, both of you are conversant with modern technology. You both have computers and wireless internet at home. Both of you have smartphones, and you are, therefore, able to be in daily contact at no cost. This is a rather new development, and it has a major impact on relationships at a distance.

[8] And then further:

[20] The use of Skype, Facetime and communication of that sort is useful to a degree. It can keep the distant parent involved, and it does provide some recognition for the child that there is a person to whom they are attached at the other end of the phone. If you use this technology carefully you can do things like reading a bedtime story to a child who lives on the other side of the world, but it is no substitute for being present in the same place, being

able to hold a child and communicate your love for it through contact of your bodies.

[9] He observes that another ameliorating factor is that the appellant could move to the Waikato and he made the point:5

... I refuse to accept that your relationship with [D] is less important than your interest in furthering your career or maintaining close relationships with your mother and father.

[10] The Judge accepted, however, that providing the appellant with opportunity to foster her development is a factor in favour of Southland.

[11] The Judge then made the following observation:

[24] The other factor that is important is the impact that the choice I am about to make will have on [AB]. [AB] has been distressed by the end of her relationship. She wanted it to continue, and you, [BA], decided to end it. She returned from the Waikato because she believed that you loved her as you said in your text, and that there was a possibility of that relationship having a future, but it was not to be.

[25] From the minute [AB] got in the witness box I could see the distress on her face. Her mouth was turned down to the extreme. She said in her affidavit that she has been depressed and required medication. That was obviously true. At various points during the hearing she has become upset and has cried. She is crying now. Indeed at one point I had to take a break because she was so upset. It is a distressing dilemma in which she finds herself, but her reaction has been aggravated by her low mood.

[12] The Judge also noted that [AB] is currently pregnant with a baby due in

November but that the other parent is not interested in a relationship.

[13] The Judge also noted that [BA’s] family did not appear supportive of [AB] at the critical point of the end of the relationship and the appellant was present during part of the unpleasantness between the respondent and his family. The Judge then observes:

[29] If [AB] is required to live in Southland, I can see that the current low mood will continue, and that another infant in the house is likely to bring her to breaking point. We know that depression in a mother has a seriously adverse impact on the children she is caring for.

5 At [22].

[30] If [AB] were permitted to return to the Waikato, she would have support from her family. She has the opportunity of living with her mother for a period while she has her baby. There will be support at night should one of the children wake. There will be support while she is breastfeeding the baby so that if [D] needs attention there will be another adult in the household to provide it.

[14] The Judge then observed that while there is a level of support that will be helpful for [AB], he did not believe it would affect her mood significantly.

[15] The Judge therefore concludes that [D] should remain in Southland for a period while the bonding with the father continues. That period was extended to the end of September. The Judge resolved that from 27 September [D] is to permanently reside in the Waikato. He noted that the appellant is to have contact by electronic media on a daily basis, and whenever the appellant visits the Waikato but for a minimum of one overnight stay and no less than eight hours on each day that he is in the Waikato, and as agreed between the parties whenever [AB] visits Southland.

Leave to appeal

[16] I prefer to address the application for leave in light of the merits of the substantive appeal.

Grounds of appeal

[17] The essential grounds are recorded at paragraph [18] of counsel’s

submissions, namely that:

18. The Court erred in not carrying out the proper analysis of the paramountcy of the best interest and welfare of the child as required by Section 4 and Section 5 of the Care of Children Act 2004.

18.1 The Court erred in not properly considering the terms of the contact principal 5 (b) in that there should be a continuity in arrangements in the child’s care, development and upbringing and that child’s relationships with his or her family, family group, whaunau, [sic] hapu or iwi and that the relationships should be stable and ongoing (in particular, the child should have continuing relationships with both of his or her parents)

18.2 The Court erred in failing to properly consider the continuity of the contact arrangements to ensure that a continuing

relationship with both of her parents and how a contact regime will strengthen the relationship.

18.3 The Court erred in failing to properly consider paragraph

5 (d) in respect of contact, that is, the relationship between the child and her father should be preserved and

strengthened.

18.4 The Court failed to properly consider the significance in terms of the psychological needs of the child and the relationship with the father and the difficulties with contact should the child be able to relocate to the Waikato with her mother.

18.5 The Court placed too much weight on the emotional wellbeing of the Respondent and her welfare and best interests rather than considering the welfare and best interests of the child.

18.6 The Court erred in considering that a bonding period of four months was sufficient enough for a child of [D’s] age and the Appellant before being allowed to relocate.

18.7 The Court erred in considering that a relationship could continue between a child of [D’s] age and the Appellant by electronic media.

18.8 The Court erred in considering that for the Appellant to be able to maintain a relationship with his daughter he would have to move to the Waikato also.

Jurisdiction

[18] This is a general appeal. As stated by the Supreme Court in Austin Nichols & Co Inc v Stichting Lodestar,6 and affirmed in K v B,7 the appellant is entitled to judgment in accordance with the opinion of the appellate Court, even if that opinion involves an assessment of fact and degree and entails a value judgment. Nevertheless the appellant bears the onus of satisfying the appeal Court that the decision below is wrong.8

Statutory framework

[19] Section 4 of the Care of Children Act provides the statutory frame for the assessment. Section 4 states:

6 _{Austin Nichols & Co Inc v Stichting Lodestar [2008] 2 NZLR 141 (SC).}

7 _{K v B (alt cit Kacem v Bashir) [2010] NZSC 112 at [32].}

8 Austin Nichols At [4]

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.

[20] The relevant principles are then recorded at s 5 as follows:

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 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.

Argument

[21] The grounds speak for themselves. The central complaint raised by the appellant is that the Judge went wrong by placing undue regard on the emotional state of the respondent without any independent evidence of that, or the effect of it on the child. Ms Morgan-Roberts cited B v B9 in support of the basic proposition that independent evidence was needed. She also complains that the respondent’s emotional state was never signalled in the affidavit evidence.

[22] Ms McKenzie for the child strongly supported the appellant, emphasising that the actual harm to the child caused by breaking the relationship with her father objectively assessed must outweigh the asserted and unsubstantiated benefits to the child of relocation.

[23] Mr Smith contends that the appellant is seeking to remedy deficiencies in the appellant’s case through this appeal. He submitted that the Judge identified the correct legal principles and that the findings of fact about the respondent’s distress

_{and the benefits of relocation for the child were available to him on the evidence. He}

9 B v B [Relocation] [2008] NZHC 664; [2008] NZFLR 1083 (HC).

also says that the genuineness of the respondent’s distress was not challenged by the appellant at the hearing. In those circumstances there was nothing wrong with the decision.

[24] It is further said that in light of the Court of Appeal decision in D v S,10

freedom of movement is an important consideration in determining relocation cases.

Assessment

[25] I commence my analysis by observing that the Judge plainly had regard to the appropriate legal principles. These are recorded at paragraphs [4]-[7] of the judgment which I have noted above and do not need to repeat here.

[26] I further observe that the appellant’s points of appeal and submissions focus squarely on the question of the “weight” given by the Judge to the various competing factors. But, save in one respect, I have not been directed to authority, principle or evidence that demonstrates that the Judge was plainly wrong in his weighing of those factors.

[27] For completeness I have gone to the task of reviewing the transcript of the hearing. I am satisfied of the following matters:

(a) The respondent was clearly distressed during the giving of her evidence;11

(b) There is clear evidence that at critical times, the respondent did not receive support from the appellant or his family;12

(c) She is likely to get support from her mother should she move to the

Waikato;13

_{(d) There was ample evidence of ease of movement between Hamilton}

10 _{D v S [2001] NZCA 374; [2002] NZFLR 116 (CA).}

11 _{Refer Notes of Evidence at 8, 23 and 26.}

12 _{Refer Notes of Evidence at 8 and 9.}

13 Refer Notes of Evidence at 9 and 10.

and Invercargill;14

(e) There was evidence that the respondent was “desperate” to get back home (notably under questioning from the appellant’s lawyer);15

(f) There is clear evidence that the respondent is in need of support and is not receiving any in Invercargill apart from a friend from ante natal group;16

(g) There is also evidence however from the appellant that his mother has offered to support [AB] but that she turned it down;17

(h) The appellant confirmed that the respondent had been on medication for depression.18

[28] Given the above, only one complaint resonates with me on this appeal. There is authority for the basic proposition that there should be independent medical evidence about the emotional or mental health of the applicant where that is the primary reason to grant relocation.19 This is particularly significant where relocation will likely result in emotional harm to the child through lack of contact with a parent. As Ms McKenzie highlighted, the child has been in contact with her father since

birth. The relocation could therefore result in a significant and harmful change for her, contrary to the continuity principle stated at s 5(b) and with implications for the principle stated at s 5(d). There must therefore be clear evidence supporting the contention that the benefits outweigh the harm of relocating.

[29] The Judge concluded that:

[31] I am completely satisfied that if [AB] were to move to the Waikato, her functioning as a parent would improve. The outcome for [D] would, therefore, be better than if [AB] were to remain in Southland. This is a factor that is heavily weighted in favour of the Waikato.

14 _{Refer Notes of Evidence at 13-15.}

15 _{Refer Notes of Evidence at 16.}

16 _{Refer Notes of Evidence at 28.}

17 _{Refer Notes of Evidence at 32.}

18 _{Refer Notes of Evidence at 35.}

19 B v B [Relocation] [2008] NZHC 664; [2008] NZFLR 1083 (HC) at [50]-[60], and authorities cited therein.

[30] But in reaching that view the Judge was reliant on the evidence of the applicant. While it was available to the Judge to conclude that she was a credible witness and so telling the truth about her distress, the Judge needed to be sure that the self assessment was reliable and a proper basis for separating the child from her father on a potentially permanent basis. Sometimes this will not require expert evidence. A long medical history of mental health issues, or compelling circumstantial evidence might provide a proper foundation for the conclusion as to reliability.

[31] Having reviewed the evidence, I am not satisfied that the evidence about the respondent’s emotional health is sufficiently compelling on its face to be sure that the relocation was necessary in the best interests of the child. In fairness to the Judge, he was not confronted with evidence or submission doubting [AB’s] distressed state. His observations about the mobility of the father were also relevant considerations in assessing the prospect of harm from disassociation. His conclusion therefore was, in my view, a logical corollary of the evidence presented to him.

[32] But given its significance to the outcome, and with the benefit of being able to view the evidence afresh, expert evidence of the emotional distress suffered by [AB], the effect of that emotional distress on the child and the remedial effect of relocation would fill the gap and may provide the requisite surety that relocation serves the best interests of the child.

Result

[33] At the end of the hearing I raised the prospect of either referring this matter back to the Family Court for reconsideration, or calling for the evidence in this Court and reaching a final decision. All parties agreed that it would be more efficient for me to resolve the matter given the pressures on the Family Court’s timetable. On reflection however I prefer to refer the matter back to the Family Court for two reasons:

(a) The Judge is better placed to weigh the evidence that he has already assessed against the outcomes of any expert assessment, bearing in

mind that the expert assessment is not by itself determinative of the outcome.

(b) My availability to attend to this matter is limited over the next eight weeks, including for the purposes of resolving any administrative issues that might arise.

[34] I therefore grant leave to and allow the appeal, set aside the relocation order, and refer the matter back to the Family Court for reconsideration in light of a report from a suitably qualified expert about the emotional state of the respondent, the effect of that emotional state on the child, and the likely benefits to the child, if any, were the respondent to relocate to Hamilton.

[35] I leave it to the Family Court Judge to resolve the precise procedure to be followed, but it would appear sensible for the respondent to seek agreement with counsel for the child as to an appropriate expert and to have the assessment undertaken as soon as possible.

[36] Finally, plainly this is a matter that requires urgent attention. The Judge’s findings of the respondent’s fragile emotional state provide good reason (even without independent expert evidence) to afford it priority.

Costs

[37] The parties have leave to file submissions on costs. I should indicate that given the circumstances, I am unlikely to award costs to any party.

Anonymisation

[38] Fictitious names have been used in this judgment for anonymisation purposes. Any reporting of the judgment will therefore be under the fictitious names.

Solicitors:

Eagles, Eagles & Redpath, Invercargill

Cruickshank Pryde, Invercargill