H v L [2013] NZHC 797 (18 April 2013)

Last Updated: 5 May 2013

NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO

11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION PLEASE SEE WWW.JUSTICE.GOVT.NZ/FAMILY LEGISLATION/RESTRICTIONS.

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CIV-2012-463-000832 [2013] NZHC 797

IN THE MATTER OF an appeal pursuant to s 143 of the Care of

Children Act 2004

BETWEEN H Appellant

AND L Respondent

Hearing: 16 April 2013

Counsel: N Simpson for Appellant

J D Rae for Respondent

K A Heaysman - Counsel for Children

Judgment: 18 April 2013

In accordance with r 11.5 I direct the Registrar to endorse this judgment with the delivery time of 10.00 am on the 18th day of April 2013.

_{RESERVED JUDGMENT OF COLLINS J}

Introduction

[1] Ms H appeals a judgment of Judge Wills delivered in the Family Court at

_{Rotorua on 30 August 2012. Judge Wills made parenting orders:}

H V L HC ROT CIV-2012-463-000832 [18 April 2013]

(1) that Mr L have the day to day care of two children born to Ms H and himself, namely:

(a) LL born 3 March 2003; and

(b) CL born 24 September 2006;

(2) that Ms H have contact with the children on terms set out in Judge

Wills’ judgment.

[2] Ms H’s appeal requires me to resolve three questions:

(1) Did Judge Wills fail to place proper weight on the factors set out in s 5(b), (c), (d) and (f) of the Care of Children Act 2004 (the Act)? Those factors are explained in paragraphs [18], [25], [30] and [35] of this judgment.

(2) Did Judge Wills fail to give proper weight to the views of the children?

(3) Did Judge Wills give inappropriate weight to the evidence of Dr Rawls, a psychologist, whose evidence favoured Mr L having the day to day care of the children?

Context

[3] Ms H and Mr L commenced a relationship in 2000. They lived together from

2002 until March 2008. At the time Ms H and Mr L separated, LL was five years and CL 18 months old.

[4] In June 2009 a parenting order was made by consent whereby Ms H had the day to day care of the children. Mr L had fortnightly weekend contact with the children.

[5] In July 2010 Ms H commenced a hairdressing course in Hamilton. Mr L

looked after the children during the duration of Ms H’s hairdressing course.

[6] In June 2011 Ms H planned to move to Australia. It was her intention that both children would go with her to Australia.

[7] On 19 July 2011 Mr L sought an order preventing LL being removed from New Zealand and a parenting order granting him the day to day care of LL. Ms H returned to New Zealand with CL and on 8 September 2011 filed her notice of opposition to Mr L’s application for the day to day care of LL.

[8] On 23 September 2011 Ms H filed an application for a parenting order in respect of both children. Mr L filed a notice of defence to that application on

13 October 2011.

[9] On 12 December 2011 the parties reached an interim care arrangement whereby Ms H would have the care of CL during the week and Mr L would have the care of LL during the week and both children would spend each weekend together.

[10] At this time it was still Ms H’s intention to relocate with the children to Australia. Accordingly, a hearing to determine parenting orders was conducted in the Rotorua Family Court from 28-30 August 2012. At the end of that hearing Judge Wills delivered a judgment in which she ordered that Mr L would have the day to day care of the children. It is that judgment which Ms H now appeals.

[11] Ms H is now living in a stable relationship with her partner in rented accommodation in Taumarunui. Mr L has married. His wife is a qualified early childhood teacher but she is not working in her profession at this stage. Aside from LL and CL there are three other children living with Mr L and his wife on their farm in the Taupo region.

Principles governing appeal

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

[13] In Austin, Nichols & Co Inc v Stichting Lodestar the Supreme Court said that when considering an appeal by way of rehearing from a decision of an Assistant Trade Marks Commissioner, the High Court is required to:1

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

[14] The Supreme Court went on to say:2

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

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

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

2 At [16]-[17].

[15] A similar approach should be taken by the High Court when conducting an appeal from the Family Court by way of rehearing. This was confirmed by the Supreme Court in Kacem v Bashir when the Supreme Court said:3

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

First ground of appeal

[16] Ms H’s first ground of appeal focuses upon principles 5(b), (c), (d) and (f) of the Act. Ms H believes that Judge Wills failed to place proper weight on the factors set out in those principles.

[17] In addressing this aspect of Ms H’s appeal I will:

(1) explain each of the principles;

(2) analyse how Judge Wills dealt with each of those principles;

(3) determine whether Judge Wills failed to place proper weight on the factors set out in each of those principles;

(4) determine whether Ms H’s appeal should be allowed for any reason in

relation to her first ground of appeal.

Principle 5(b)

[18] Principle 5(b) provides that there should be continuity in arrangements for a child’s care, development, and upbringing, and that a child’s relationship with his or her family, family group, whānau, hapū or iwi should be stable and ongoing. In

_{particular, a child should have continuing relationships with both parents.}

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

[19] In her decision, Judge Wills recognised that s 5 of the Act contains the various principles that she needed to consider when assessing what is in the welfare and best interests of the children.4 In particular, Judge Wills made a number of factual findings in relation to principle 5(b) about Ms H’s:

(1) numerous changes of address;

(2) changes made to LP’s schooling arrangements; and

(3) the number of significant partners she has had since her relationship with Mr L came to an end.

[20] Judge Wills also evaluated Mr L’s comparatively few changes of address and the stability of his marriage and family arrangements. Mr L lives in what is described as a large house on his farm.

[21] After making these factual findings Judge Wills concluded her evaluation of the s 5(b) principles by saying:5

Overall it is clear that [Mr L] has provided and will be able to provide greater continuity, stability and security of relationships for the children than [Ms H].

[22] Her Honour then proceeded to make observations about Ms H’s current

relationships and then said:6

... There is every possibility that [Ms H’s] personal living circumstances, as they are, will continue, but [she could not overlook] the history that must cast some doubt on that.

[23] Ms H does not dispute the factual analysis of her many changes of circumstances as set out by Judge Wills. Instead, Ms H focuses upon the change in care arrangements for CL brought about by Judge Wills’ decision. Ms H is

_{concerned that CL had lived with her almost all his life and that placing CL in the}

4 C S L P v H M H [2012] NZFC 7143 at [13].

day to day care of Mr L did not provide CL “with continuity in arrangements for his care”.

[24] I am very satisfied Judge Wills did give careful consideration to what arrangements would provide the most continuity for the children’s future care, development and upbringing. In particular, Judge Wills evaluated the comparative stability Mr L and his family could provide for both children if they lived with him, his wife, and their family on his farm. This contrasted with the comparatively less settled lifestyle Ms H had experienced.

Principle 5(c)

[25] Principle 5(c) provides that the children’s care, development and upbringing should be facilitated by ongoing consultation and co-operation between the children’s parents and those providing day to day care for, or entitled to have contact with, the children.

[26] In her judgment Judge Wills made a number of factual findings in relation to principle 5(c). In particular, she found:

(1) Ms H had demonstrated “... some clear indications of an unwillingness to consult”;7

(2) when Ms H did consult it had on occasions been “limited”,8

“inappropriate”9 and “extremely abusive”;10

(3) Ms H had prevented Mr L from having contact with the children for eight weeks;11

(4) Ms H had refused to provide her and CL’s address in Australia when

Mr L asked for it.12

[27] Judge Wills also recorded that while “neither parent is particularly able to consult and co-operate with the other”,13 Ms H’s “... responses to issues ... [had] been inappropriate and angry at times and not in the best interests of the children”.14

Judge Wills, later said Mr L “has a more positive approach to [Ms H] than [Ms H]

has to him”.15

[28] In challenging Judge Wills’ conclusion in relation to the principle 5(c) considerations, Ms H points out that she has not been provided with Mr L’s landline telephone number and that the only way she can contact Mr L and the children is by a cellphone that belongs to Mr L’s wife.

[29] My reading of Judge Wills’ decision is that she considered neither Ms H or Mr L had behaved as model parents when dealing with each other. For this reason Judge Wills suggested “there would clearly be benefit in both parents together attending specialist counselling”.16 I am also certain that Judge Willis did carefully evaluate the matters contained in principle 5(c) when she concluded that it was in the children’s welfare and best interests for them to be in the day to day care of Mr L. I am satisfied the conclusions reached by Judge Wills in relation to the principle 5(c) considerations was entirely appropriate.

Principle 5(d)

[30] This principle stresses the need to maintain and strengthen relationships between a child and members of their family, family group, whānau, hapū or iwi and that these people be encouraged to participate in the care, development and upbringing of the child.

[31] In her decision Judge Wills found “that both parents support [the children’s family] relationships” and that the children’s “extended family ... are also supportive”.17

[32] Ms H is concerned that as a result of the change in care arrangements for CL that flowed from Judge Wills’ decision, CL’s “ability to maintain [a] relationship with [Ms H’s] extended family has weakened”.

[33] I am satisfied Judge Wills did appropriately weigh the factors identified in principle 5(d). I have reached this conclusion because I believe that when Judge Wills:

(1) made the factual findings adverse to Ms H that I have summarised in paragraphs [19] and [26]; and

(2) concluded that Mr L had a more positive approach to Ms H than she does to him;18 and

(3) that the children are much loved not only by their parents but also by their extended family and that they were being brought up in environments where they have extended family close at hand and have strong relationships with extended family members19

she was, at least implicitly, saying that Mr L is more likely than Ms H to preserve and strengthen the children’s relationship with their wider family members and to encourage the children’s wider family to participate in their care, development and upbringing.

[34] This conclusion was one that was readily available to Judge Wills, particularly when regard is had to the contents of the report prepared by Dr Rawls. I will be considering Dr Rawls’ evidence in more detail later in this judgment. Suffice for present purposes to note that Dr Rawls was firmly of the view that both children

would benefit from having an everyday sense of family, of the same generation, within a stable home20 and this would be better provided for by Mr L than Ms H.

Principle 5(f)

[35] Principle 5(f) stresses the importance of preserving and strengthening a

child’s identity, including their culture and language.

[36] Ms H is of Māori descent. Mr L is Pakeha/European. Ms H does not speak Te Reo. Although Ms H says that she is not able to “envelop the children in a full emersion Māori lifestyle” she “recognises the importance of maintaining her and the children’s Māori identity”. She submits that Mr L “will not encourage and foster the children’s Māori culture and heritage”.

[37] Judge Wills referred to principle 5(f) in her judgment when she noted the “obligation to ensure the children’s sense of identity is promoted”.21 Questions about which parents could provide greater support for the children’s cultural identity did not feature in the Family Court hearing.

[38] I can find no evidence to suggest that Mr L will not recognise and support the children in preparing and strengthening their Māori heritage. I am accordingly in the position of not being able to draw any conclusions about which parent would best give effect to the factors set out in principle 5(f).

Overall assessment of first ground of appeal

[39] I am satisfied Judge Wills was conscious of, and gave effect to most of the principles set out in s 5 of the Act. The only deficiency concerns principle 5(f) which appears not to have featured in evidence and was therefore not focused upon by Judge Wills. Putting that issue aside, Judge Wills did carefully weigh and give effect to the principles set out in s 5 of the Act in a thorough and careful way.

_{Having considered each of the concerns raised by Ms H concerning the s 5}

20 Common bundle of documents at 99.

principles, I have reached the conclusion that nothing contained in her first ground of appeal would justify me overturning Judge Wills’ decision. In my assessment Judge Wills correctly applied principles (b), (c) and (d) contained in s 5 of the Act.

Second ground of appeal

[40] Ms H’s second ground of appeal is that Judge Wills did not give the

children’s views proper weight as is required by s 6 of the Act.

[41] In assessing the children’s views Judge Wills observed that:22

when taking [their] views into account ... it is evident that children must be able to understand the consequences of the views that are expressed before full weight can be given to them.

[42] The approach taken by Judge Wills was entirely consistent with the interpretation given to s 6(2)(b) of the Act by Randerson J in C v S where he said:23

The expression “take into account” is stronger than the common statutory formula “have regard to”, but it does not go so far as to oblige the decision maker to act in accordance with any view expressed by the child. ... It is implicit that the Court retains a discretion to give such weight to the child’s views as it considers appropriate in the circumstances of the case.

[43] In her decision Judge Wills found that the children “... are very clear. [CL]

wants to be with his mum and [LL] wants to be with [CL]”.24

[44] Judge Wills was acutely aware that CL had been living with Ms H most of his life and that he wanted to continue being with his mother.

[45] Judge Wills was also very mindful of the fact that both parties agreed that the children needed to live together.

[46] In relation to LL, Judge Wills found that she wanted to be with CL and that this expression of her wishes was made to avoid making any choices between her

22 _{At [15].}

23 _{C v S [2006] 3 NZLR 420 (HC) at [31](h).}

24 C S L P v H M H [2012] NZFC 7143 at [50].

parents. Notwithstanding LL’s reluctance to make a choice Judge Wills found that

LL “loved being with her father and she loves visiting her mother”.25

[47] The findings which Judge Wills made about the children’s wishes are fully supported by Dr Rawls’ evidence and the observations of counsel for the children. It was very clear to Dr Rawls that LL and CL have a very close bond and that LL has a very positive relationship with her father and his wife. It is also clear from Dr Rawls’ report that LL was very stressed by the expectation that she would make a decision as to which parent she lived with.

[48] At the time of the Family Court hearing CL was just six years old and had lived almost all his life with Ms H. Judge Wills correctly considered CL’s level of maturity when deciding that his desire to live with Ms H should not determine which parent should have the day to day care of both children.

[49] I have met both children in the presence of their lawyer. They are delightful, bright and engaging young children. Both clearly love their parents and they are extremely anxious that until my decision is given there will continue to be uncertainty about their future living arrangements. My impression is that CL would still prefer to be with his mother, although he did not express his wishes as firmly as they are recorded in Judge Wills’ decision. Similarly, LL continues to maintain a sense of neutrality, although it is very clear that she is enjoying living with Mr L and his family.

[50] In my assessment, Judge Wills gave appropriate weight to the views of the children and reached a decision that was best for the welfare of the children and in their best interests. I do not believe that Ms H’s criticism of Judge Wills’ reasons for not giving full effect to CL’s wishes are valid. Nor do I believe that anything has changed in relation to the children’s views since Judge Wills made her decision which would justify me in reaching a different view from that reached by her

_Honour.

25 At [53].

[51] I accordingly am driven to the conclusion that the second ground of appeal must be dismissed.

Third ground of appeal

[52] Ms H’s third ground of appeal is that Judge Wills erred when she gave what Ms H describes as “significant” weight to the evidence of Dr Rawls, and in particular, Dr Rawls’ assessment that Ms H lacked the ability to provide psychological and emotional support for the children.

[53] Ms H submits that Dr Rawls’ report was unfair because Dr Rawls’ evaluations were conducted at a particularly emotional time for Ms H and that Dr Rawls, therefore, did not gain a true picture of Ms H as a person and as a mother.

[54] Ms H is also concerned that Dr Rawls’ report was filed in March 2012, some

five months before the hearing took place before Judge Wills.

[55] It is clear that Dr Rawls carried out a very comprehensive and thorough evaluation of:

(1) the attitude and relationship of LL and CL to each other;

(2) the ability of both parents to meet the children’s needs ahead of their own;

(3) the children’s most important emotional and psychological needs;

(4) the children’s views and what weight should be given to them;

(5) what influences were being brought to bear on the children; and

(6) the likely psychological impact on the children if they lived separately from each other or were relocated.

[56] It is also clear Dr Rawls formed very clear views about the desirability of Mr L having the day to day care of both children. Dr Rawls’ favourable views about Mr L and her less favourable views about Ms H do not appear to have been undermined by cross-examination.

[57] In my assessment, it is clear that Judge Wills did place some weight on

Dr Wills’ professional assessments, but she was entitled to do so.

[58] In essence, Judge Wills decided:

(1) Mr L would provide more stability, security and continuity of care for the children than Ms H;

(2) Mr L would provide better emotional support for the children than

Ms H; and

(3) Mr L was more willing to consult and co-operate than Ms H.

[59] Judge Wills’ conclusions in relation to these key elements of her judgment were supported by Dr Rawls’ opinion. However, Judge Wills’ findings on these key issues were also supported by other evidence, most notably the cross-examination of Ms H. When cross-examined, Ms H:

(1) accepted she had used abusive language towards Mr L on various occasions;

(2) accepted she had denied Mr L contact with the children for eight weeks;

(3) accepted she had exposed the children to her anger;

(4) accepted she had been in four serious relationships since the relationship she had with Mr L came to an end;

(5) accepted she had lived at nine different addresses during the four year period that preceded the hearing;

(6) accepted that the evidence did not support her claim that she could provide the children with a stable home environment;

(7) accepted that in the past Mr L had provided the children with greater consistency in relation to the adults living in his home.

[60] It is clear to me that Judge Wills did not give disproportionate and inappropriate weight to Dr Rawls’ opinions. Instead, Judge Wills based her decision upon the evidence presented to her over the three days of the hearing, supported in part by Dr Rawls’ expert opinions.

[61] For these reasons, I conclude that the third ground of appeal must be dismissed.

Ancillary matters

[62] Ms Heaysman, counsel for the children, provided an updated report concerning:

(1) the children’s living circumstances;

(2) the children’s views;

(3) the children’s progress at school;

(4) medical reports;

(5) the fact there are no CYFS issues.

[63] Mr L objected to this material being considered by me. He said it was not relevant to my decision and that it was not evidence that I could legitimately take into account.

[64] There is merit to Mr L’s concerns. However, I have read the material provided by Ms Heaysman and have concluded that it does not cause me to alter my views as to how this appeal should be determined.

Conclusion

[65] None of the grounds of appeal advanced by Ms H have been established. Her appeal must therefore be dismissed.

[66] The orders made by Judge Wills on 30 August 2012 remain in force.

[67] In reaching this decision I fully endorse the following paragraph of

Judge Wills’ decision:26

The children love their parents and their parents love them, however it is not enough to be the children’s mother or father – to love them and have them love you. Children need a stable home life. They need consistency of attachment. They need emotional support and stability and the positive support of their relationship with the other parent. As parents, both [Ms H] and [Mr L] provide very well. But, looking at the history of these children’s lives since separation, it is clear that stability and security, both physical and emotional is more likely for the children in the future in their father’s home. He has a more positive approach to their mother than their mother has to him. The sibling relationships and structures are ones that have become important for the children. In terms of continuity and consistency I am satisfied that the children’s needs are best served in their father’s home at this time and in those circumstances there will be an order that both [LL] and [CL] are to be in the day-to-day care of their father.

[68] If there are any issues in relation to costs counsel should file a memorandum with the Court within the next ten working days.

Solicitors:

Ferguson Bhullar & Scott, Taumarunui for Appellant

Edmonds Marshall, Matamata for Respondent

Kerrie Heaysman at Law, Taupo for Children

D B Collins J

26 C S L P v H M H [2012] NZFC 7143 at [55].