L v A [2015] NZHC 2889 (19 November 2015)

Last Updated: 30 December 2018

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 HTTP://WWW.JUSTICE.GOVT.NZ/COURTS/FAMILY- COURT/LEGISLATION/RESTRICTIONS-ON-PUBLICATIONS.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-001594 [2015] NZHC 2889

BETWEEN	L Appellant
AND	A Respondent

Hearing:	3 November 2015
Appearances:	L J Kearns and K Dunne for Appellant S R Jefferson QC for Respondent R Cox Lawyer for Children
Judgment:	19 November 2015

JUDGMENT OF DUNNINGHAM J

[1] L and A began living together in 1999. Between September 2003 and September 2007 their three children were born; I, J and B.

[2] In May 2008 they separated. Shortly afterwards proceedings were filed to resolve parenting arrangements.

[3] In 2009, the parties were involved in a two day hearing to determine interim parenting arrangements. In February 2011 the parties attended private mediation and were able to agree on a comprehensive suite of final parenting orders. That was a

L v A [2015] NZHC 2889 [19 November 2015]

significant achievement given the acrimony which had developed between them since separation.

[4] At the time the consent orders were made, the children were 7, 5 and 3 years old respectively. The parties recognised that the parenting orders may need to change in the future to reflect the children’s changing needs, so they included the following condition in the orders:

The parties agree to review the terms of this agreement by private mediation at the expiry of two years.

[5] In late 2013, L filed an application for variation of the 2011 consent orders. The parties then attempted to agree on changes to the consent orders through mediation but were unsuccessful.

[6] The primary change L proposed to the existing orders was that, instead of the children being in A care from 4.00 pm Saturday to 3.00 pm Tuesday each week, they would be with their father every second weekend from Friday after school until Tuesday morning, and he would also have them on every Monday night during the alternate week.

[7] In the end, the Family Court Judge decided that it was preferable not to make the change sought, although the existing orders were amended to provide for each parent to have a minimum of one full weekend with the children each term, with at least four weeks advance notice given. Agreed changes were also made to school holiday arrangements to allow week about arrangements with each parent.

[8] The appellant appeals against the orders relating to the term-time care arrangements and, in particular, the weekend arrangements. She also appeals the removal of a condition from the existing parenting orders which prevented the children from being taken to medical professionals who were friends of either of the parties, unless in an emergency. This issue arises because both of the parties are medical professionals and have friends who are also medical practitioners.

The Family Court decision

[9] Following a hearing in June 2015 the Family Court issued a decision on L’s application.¹ In it the Judge traversed the reasons for L promoting the changes to the care arrangements and the reasons A opposed the changes. He then summarised the children’s views, saying:

The children’s views have been reasonably consistent over the past year. While the children can see that the care arrangements could be changed to make better use of weekend time, none of the children want care arrangements to be changed in the way their mother proposes.

In [I’s] case she has instructed her lawyer that, if the choice was hers alone, she favours week about shared care. The other two children are happy with the way things are but [J] thought they could perhaps go to their father’s a little later on Saturday night. At present the changeover occurs at 4.00 pm.

[10] The Judge then traversed what he described as “salient points or opinions” from the reports of the Court appointed psychologist prepared for the earlier hearing and which he said were “pertinent to the present dispute”. These included findings that:

(a) the parties are “good, highly committed parents”;

(b) even basic communication between the parties is “cumbersome and potentially fraught”;

(c) “both parents come from the belief that their opinions will not be heard or respected by the other. Hence, at times they do not risk communication and simply resort to ‘doing their own thing’”; and

(d) “the adult dynamics are not suited to shared care and unlikely to be so for some time”.

[11] The Judge also recorded that one of the reports foreshadowed the possible need to change the care arrangements after a couple of years to allow the children to spend

¹ L v A [2015] NZFC 4661.

the whole weekend with each parent if the split weekend arrangement was not sustainable.

[12] Having set out this information the Judge then made various findings. These included that:

(a) the children are stable and settled;

(b) the mother remains an anxious person;

(c) each parent remains mistrustful of the other;

(d) the parental conflict continues to affect the parties and their children at times, but less so this year, particularly over the past five or six months;

(e) communication between the parents was improving “slightly” and communication was supported by use of a website designed to assist information sharing by separated parents called OurFamilyWizard;

(f) ideal care arrangements would involve children spending blocks of time with each parent;

(g) the children are reluctant to change the current arrangements when, by and large, they work. The Court concluded that it was not satisfied on the balance of probabilities that a change in care arrangements would likely be in the welfare and best interests of the children at this time. However, there was evidence that the parties had accommodated requests for one parent to have the children for a full weekend from time to time and this understanding would be incorporated into the new order;

(h) given the past family history, anxiety experienced by the children and mother, parental dynamics, and present level of stability, a change in care arrangements is too risky for the children;
(i) there are significant work issues for the father to overcome if the care arrangements were to change as proposed.

[13] Based on those conclusions the Judge then made the following orders:

(a) the interim parenting order made on 17 February 2011 was discharged;

(b) a final shared care parenting order was made which, in summary, provided as follows:

During school term time the children would:

(i) be in their father’s care from 4.00 pm each Saturday until the end of school on Tuesday;

(ii) be in their mother’s care from the end of school each Tuesday until 4.00 pm on Saturday;

(iii) spend at least one full weekend per school term with each parent. This was required to be arranged at least four weeks in advance and the other parent was not to unreasonably withhold his/her consent.

During the school term holidays the children’s care would be shared equally between the parents on the basis that:

(iv) the children would be with their father in the first week of the school holidays (from after school on the last day of the school term until 12 noon on the middle Saturday of the school holidays);

(v) the children would be with their mother in the second week of the school holidays until they return to school on Monday of the following school term;
(vi) the Christmas school holidays would be shared on a specified basis;

(vii) there was to be contact on such other occasions and times as agreed by the parents;

(viii) the previous conditions as to medical treatment were replaced with a condition simply requiring consultation and sharing of information about the children’s medical appointments.

[14] There were various other orders relating to procedures for changeovers, consultation and provision of information, the children’s schooling and attendance at events and activities involving the children, but they are not relevant to the appeal.

Grounds of appeal

[15] The following six grounds of appeal were advanced:

(a) the Court erred in respect of the weight placed on the views of the children when it:

(i) incorrectly attributed the children’s views as being consistently held;

(ii) failed to adequately contextualise I’s advice to her counsel in June 2015;

(iii) erred in determining that the children were reluctant to change the present arrangement.

(b) the Court failed to place sufficient weight on the advantages to the children of the variations sought, in particular:

(i) the enhancement of lifestyle to the children of having regular weekend time with each parent;
(ii) the potential for parental conflict to be reduced.

(c) the Court placed undue weight on the alleged pressure that would be placed on the father to accommodate a change in care arrangements but gave insufficient weight to the pressure and professional impact on the mother in the event of a failure to change the care arrangements;

(d) the Court placed undue weight on some aspects of the reports of the psychologist, Dr Louise Smith, when:

(i) the reports were out of date;

(ii) reliance was made on the reports out of context;

(iii) those aspects of Dr Smith’s reports which were favourable to the variation were ignored.

(e) the Court erred in not imposing a condition that the children should attend neutral medical practitioners; and

(f) the Court erred in placing undue weight on the effect of the children of a change in routine.

Approach to appeal

[16] Appeals from the Family Court are governed by s 143 of the Care of Children Act 2004. Section 143(4) imports ss 73 to 78 of the District Courts Act 1947 as part of the procedure on appeal.

[17] The appeal is by way of rehearing² and accordingly, it is an appeal of the type which Elias CJ described in Austin, Nichols & Co Inc. v Stichting Lodestar,³ saying:

[16] 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

² Section 75.

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

judgment. 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.

[18] Even in an appeal from the Family Court, which is a specialist Court, that approach applies. As was said in D v S:⁴

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

[19] Thus in hearing this appeal I take account of the fact that Judge de Jong had the advantage of hearing and seeing the witnesses give evidence in the 15 June 2015 hearing, and was also the Judge presiding at the first hearing involving these parties some six years earlier. Nevertheless, I am free to reconsider the Family Court’s decision, and to substitute my own views on evaluative and factual questions, if I consider that the first decision was wrong. Furthermore, to the extent that the Judge was exercising any discretion in reaching his decision, I am entitled to determine whether those discretionary decisions were correct.

First ground of appeal – the Court erred in the weight it placed on the views of the children

[20] In arguing this ground of appeal, counsel for L focused on two alleged errors. First, that the Judge had incorrectly recorded the children’s views and had then placed weight on those incorrect views. Second, he erred by “not making it clear why the children’s views were disregarded”, by which I understand the appellant to mean he disregarded the statements made by the children which supported a degree of change.

⁴ D v S [2003] NZFLR 81 (CA) at [18].

[21] The views of the children were obtained by their Court appointed lawyer and were provided to the Court by way of two memoranda. The first was prepared on 22 April 2014 and the second on 2 June 2015. It seems no real issue is taken with the way the Court recorded the children’s views as set out in [9] above, but rather with the Court’s further statement that “it is understandable the children have instructed their lawyer that they want things to stay as they are”. Counsel for L submits that this incorrectly records the children’s views by not stating that both I and J suggested changes to the current arrangements. She accepts that the Court was aware that the reports prepared by lawyer for the children recorded that the individual children had differing views, but says the Court “made no assessment as to the changes in the children’s positions and/or the different approaches being taken by each individual child”.

[22] I do not accept that the Judge was incorrect when he said the children were supportive of the current arrangements. Taking the most up to date report at the time of the hearing, lawyer for the children reported that “[I] thought the care arrangements were just fine as they are”, “[J] is happy with the arrangement as they are currently”, and, “[B] ... is happy with the care arrangements as they are”. The Judge was not wrong, therefore, to say the children “want things to stay as they are” and “are reluctant to change the current arrangements when, by and large, they work”. It is clear he was also aware of, and understood, the qualifications the children made to those statements. In particular, he was alive to I’s preference for a week about arrangement (which was not what was proposed) and J’s concern that she would prefer a later changeover on Saturday, as he mentioned these in his judgment.

[23] Furthermore, this Court now has a further update from lawyer for the children prepared on 27 October 2015 which repeats these themes. It says “[I] continues to believe that the care arrangements are fine as they are”, and she “has enough time with each of her parents”, although she still considers a week about regime would be better and would avoid the rush on Saturdays. Similarly, J is “pretty happy with the arrangements as they are currently” and, although it would be “quite nice to have a bit more time in the weekends with mum”, she “did not want alternate weekends in the care of each parent because of her arrangements for extracurricula activities in the weekend”. B also remains “happy with the care arrangements as they are”, but both J
and B thought it would be good if they could occasionally have a full weekend with each parent. The views expressed in this, and the earlier reports from lawyer for the children are reasonably consistent and I am satisfied they are accurately reflected in the Family Court decision.

[24] The next aspect of this ground of appeal assumed that the Judge then gave weight to the incorrectly recorded views of the children. As I do not consider the Judge incorrectly recorded the views, it follows that I do not accept he gave weight to an incorrect version of those views. To the contrary, he took account of the children’s statements confirming the current arrangements were satisfactory, and that they facilitated certain extra curricula activities that the children enjoyed undertaking with their father in the weekend. He also took account of their expressed desire to have occasional whole weekend time with each parent by including provision to do this in the orders (provided that adequate notice was given). While I expressed a desire for week about care, that was not proposed by either party, except during the holidays, and that, too, was reflected in the orders. The only view he was unable to accommodate in the orders was the concern that Saturdays felt rushed because of the
4.00 pm changeover time, but on that issue, he had to balance the benefit of the status quo against making changes where the consequences were uncertain.

[25] I can therefore see no error in the way the Judge recorded the children’s views, nor in the way he has taken them into account in the specific factual circumstances of this case.

Second ground of appeal – the Court erred in failing to place sufficient weight on the advantages to the children of the variation sought

[26] Under this ground of appeal L said the Court placed insufficient weight on the advantages of lifestyle to the children of moving to the alternate weekend care proposal, and on the potential for parental conflict to be reduced because the proposal would avoid the Saturday changeover during term time.

[27] In terms of the enhancement of lifestyle to the children, L referred to evidence that:

• (a) it would allow both parents to have quality time with the children;

(b) it would allow the appellant to finish her medical training and further her career by working on the weekends;

(c) the parties could relax with the children on the weekends and have family dinners;

(d) it would avoid the situation where the parties missed family events because of the split weekend; and

(e) it would avoid disruption the split weekend causes.

[28] Under this heading she also referred to the potential for reduced parental conflict, but I deal with that under the second consideration in this ground of appeal.

[29] The Judge was clearly aware of the potential benefits of the proposed change. This was reflected in his acknowledgement that it would allow the children to spend the whole weekend with each parent and go on weekend trips without that parent. He clearly saw the ability for the children to spend some whole weekends with each parent as desirable, by making provision for that to happen at least once for each parent during each 10 week term, and by endorsing the week about holiday arrangements. The Judge was also aware that the children considered the current Saturday regime could be a bit rushed, but he had to balance that against the other benefits of the current regime, which included facilitating the extra curricula activities the children did with their father during his part of the weekend, and the stability that was maintained by retaining the current regime.

[30] While the appellant also raised the issue of her own professional development and career options being enhanced by the new arrangement, that is not directly relevant to the claim of enhancement of lifestyle for the children. I do, however, discuss it in relation to the third ground of appeal.

[31] The second aspect of this ground of appeal was that the mother’s proposal would reduce the potential for parental conflict by eliminating the need for the
Saturday changover during term time. Instead the children would be dropped off at school by one parent and picked up by the other at the end of the school day. That would eliminate the risk of the parties meeting and conflict occurring in the children’s presence.

[32] Affidavit evidence was given regarding events that had occurred at changeovers, to support the desirability of fewer changeovers.

[33] Without making specific findings about those alleged incidents, the Family Court acknowledged that there had been incidents of conflict in the past. Counsel for L, however, pointed to there being ongoing issues which she said included:

(a) when the appellant picks the children up from the respondent’s house, he comes out and makes contact; and

(b) on changeover the respondent becomes overbearing, stands too close and asks personal questions repeatedly.

[34] However, the only times L has to go to A’s house is during holidays or on unplanned occasions. The need for that would not change under the new proposal. The changeovers which would be eliminated are those where A picks the children up from their mother’s home on Saturday afternoon. When that happens, it was clear from the evidence that there were times when L came out to see A even though it had been suggested that she stay inside and the children simply leave the car and go inside, to ensure there is no face to face contact. This seems contrary to her desire to have changeovers without the need to see the children’s father.

[35] In relation to the second point, the evidence on that related to contact at social functions and not at changeovers. That risk remains even with the new proposal. In any event, as L acknowledged, the changeovers were now going more smoothly and “everything has been better in the last six months”.
[36] Thus, I find the importance placed by L on eliminating parental conflict by reducing the need for changeovers at each other’s house was overstated. Such changeovers will occur in any event during holiday time, and the evidence was that if A stayed in the car and L stayed in the house, the Saturday afternoon changeover worked tolerably well. That evidence was reflected in the Family Court Judge’s decision where he made it an express requirement of changeovers that “the receiving parent is to pick the children up but is not to enter the other parent’s property. The other parent is to remain inside their house during changeover”.

[37] That practical mechanism was supplemented by a requirement in the conditions of the new parenting orders to use the OurFamilyWizard website or texts or phone for communication rather than face-to-face communication.

[38] There is nothing to suggest that the Family Court Judge did not adequately take into account the issue of parental conflict at changeovers when coming to his overall decision.

Third ground of appeal – the Court placed undue weight on the pressure placed on the father and insufficient weight on the impact to the mother

[39] The next ground of appeal relates to the weight the Court placed on the difficulties the proposed arrangements would cause to A’s work schedule as opposed to the difficulties it would cause to L’s proposal to undertake further specialist training and to work more hours to advance her career.

[40] The Court recorded that one of the advantages of the proposal was that having some free weekends would be “particularly important to the mother because she plans further specialist training, study and wants to work more hours”. However, when the Judge came to his decision he stated “there are significant work issues for the father to overcome if the care arrangements changed significantly in the school week due to his present work commitments on Friday after school, occasional Saturdays, Tuesday after school and Wednesday morning”. He did not make express mention of the benefits to the mother of the proposed change.
[41] Counsel for L said “it appears the Court failed to take into account the father’s evidence that he may be able to change his working life to accommodate the proposed change to care arrangements and conversely fails to give any consideration to the appellant’s need to work on weekends in order to finish her training, something the respondent himself acknowledges”.

[42] However, the Court did record that the father “may be able to change his working life to accommodate the proposed change to care arrangements”, but qualified that conclusion by saying “it will likely place more pressure on him than he can cope with”. The real criticism is that the Judge did not explain why the pressure placed on the appellant by her inability to progress her career was not given at least equal weight.

[43] I accept that the Judge did not explain how he took account of the mother’s concern that her career would be hindered if a change to the arrangements was not made. I therefore must consider afresh whether that was a factor which should have been expressly taken into account and, if it was, whether it would alter the decision.

[44] On that issue I consider there is force in Mr Jefferson QC’s submissions, that nowhere in the three extensive narrative affidavits which were prepared by the appellant for the hearing, was the issue of an impact on her career raised. Instead, the application was advanced on the basis that the change to the parenting orders sought was to avoid conflict at changeover points, and it would be in the children’s best interests for them to have full weekends with each of their parents.

[45] What evidence there was on this issue emerged in cross-examination. There L explained that her current six monthly contract was finishing and there were limitations on the contracts she could take if she could not do some weekend work. She also said, however, that she had done a rotation before which included some weekend work and Friday night work where she had managed to arrange cover for that. Apart from the evidence which emerged from cross-examination there was no detail about the extent of weekend time that would be involved to advance her career and what exactly it was that she proposed to do.
[46] Furthermore, L’s concerns on this account are rather different from the concerns which prompted the application. The application was presented on the basis L wanted whole weekends with her children so she could spend a more relaxed and extended time with them, as well as avoid the difficult changeover on Saturday afternoon. It was not about ensuring a minimum number of weekends without the children so that she could be available for work on the weekends.

[47] Given that was an entirely new issue, not signalled by the application, it was understandable that the Judge did not expressly refer to it when coming to his decision. In any event, in the absence of more concrete evidence on the number and pattern of child-free weekends she sought, and precisely why that was required for training or career enhancement, it is difficult to see how this issue could have been reflected more explicitly in the decision. Furthermore, there was no evidence as to the impact of that issue on the children. As lawyer for the children noted, she, too, felt there was insufficient evidence on this issue for her to make meaningful comment on it.

[48] I therefore do not consider that the Judge was in error in not giving more weight to the assertions about the detriment to L’s career in coming to his decision, when the evidence on that issue was so sparse.

Fourth ground of appeal – the Court placed undue weight and reliance on the reports of psychologist Dr Louise Smith

[49] Dr Louise Smith had prepared three s 133 reports for the Court between 27 April 2009 and 22 July 2010 for the purpose of the 2011 hearing. She did not, however, have a role in the present hearing. Nevertheless, those reports were made available to the Judge and the parties were cross-examined on their contents.

[50] Counsel for L noted that the Judge proceeded to refer to 19 separate sections from Dr Smith’s various reports in his decision, but those reports were “significantly out of date”, especially having regard to “the respective ages of the children”. However, on the other hand, she considered the Court omitted reference to the aspect of Dr Smith’s reports which was of most relevance and that was Dr Smith’s observation that:

The current split weekend arrangement is working now but it would be anticipated it may not be sustained as the children mature (e.g. once both the girls are at school and B is four or above). Both households will want to have the ability to go away for a weekend together and this is precluded at present. Care arrangements will need to be reviewed for the girls somewhere in the next couple of years.

[51] However, I am satisfied that the Judge only referred to the reports for the purpose of emphasising observations about the parental dynamics which were still relevant in the current hearing. Indeed he was careful to isolate those which he considered were “especially pertinent to the present dispute”. The report was not relied on by the Judge for the purpose of identifying the children’s needs where it would obviously be out of date.

[52] The observations of Dr Smith which were set out in the judgment were to the effect that the parties were good capable parents, but their different parenting styles and unabated conflict had made communication without suspicion virtually impossible. Those observations were borne out by the evidence. There was nothing objectionable about the Judge reiterating the observations of Dr Smith that he thought were still relevant at the date of the hearing, and which had a bearing on his decision.

[53] Equally the Judge was clearly well aware of the recommendation that the split weekend care arrangements made in 2011 would need to be reviewed to see if they were still appropriate in two years time. That was what the hearing was about. However, that recommendation could not predict the outcome of that review, nor determine that the split weekend care arrangement would necessarily become a weekend about care arrangement.

[54] Again, I am not satisfied that the Judge placed inappropriate weight and reliance on the s 133 reports and this ground of appeal does not succeed.

Fifth ground of appeal - the Court erred in removing a condition that the children should see neutral medical practitioners.

[55] There was considerable evidence given at the hearing as to disputes between the parties over medical appointments being arranged for the children without consulting each other. The appellant was concerned that the children were being seen
by a GP friend of the respondent and A admitted that he had breached the previous order in allowing the children to be seen by a GP friend of his. However, the appellant also acknowledged that she had taken the older daughter to a plastic surgeon to be provided with information about a possible surgical procedure, without consulting the respondent.

[56] The previous parenting order had provided that the children would normally see their current GP, Ms Fraser, but could see other medical practitioners outside of normal working hours, although they would not use friends of theirs to see the children in a medical capacity except in emergencies.

[57] In making a new parenting order the Judge observed:

...

(c) Given past difficulties with medical arrangements for the children this Court will impose a condition that requires prior consultation if practicable. It will be impracticable, for example, in the case of absolute emergency but the other parent will need to be notified as soon as possible.

(d) The parents can take the children to their GP of choice provided they share the medical information with the other parent. In the past there have been restrictions on what GP can be used but if the parents use OurFamilyWizard properly, they will be able to record and view all relevant medical information.

[58] The Judge then discharged the existing parenting orders, including the condition that the parties would not take the children to GPs who were friends of theirs, and instead replaced it with:

(c) Each parent shall consult the other in advance of medical appointments for their children, unless impracticable and, in that event, shall provide sufficient information as soon as possible thereafter for the other parent to understand why the appointment was made, nature of treatment and prognosis.

[59] L claims:

(a) that there was no jurisdiction to remove this provision from the parenting order as that was not a subject of the application; and
(b) the fact that the respondent has been taking the children to his friend has been a source of conflict between the parties, so the condition should stay as protection for both parties and the children.

[60] For completeness, I note there was no evidence that the choice of medical practitioner involved had any direct bearing on the welfare of the children. There was no suggestion that the particular medical practitioners the children had seen, were inadequate, nor that either parent would influence that practitioner to the children’s detriment.

[61] This was an issue where the contest between the parents took on a particular piquancy. From L’s perspective the removal of the agreed condition was effectively rewarding A for breaching the previous condition of the parenting orders, whereas A complained that there was no rational basis for not allowing the children to see the doctor he was a friend of and, in any event, he was friendly with many doctors on the North Shore, making the condition potentially impracticable.

[62] Section 48 of the Care of Children Act 2004 provides the Family Court with a wide discretionary power to make (and, by implication, to vary) parenting orders. That includes the ability to make the orders “subject to any terms or conditions the Court considers appropriate”.⁵ Of course, the exercise of that discretion is governed by s 4 which requires the welfare and best interests of a child, in his or her particular circumstances, to be the first and paramount consideration.

[63] The breadth of this discretion means I accept that, in principle, there was jurisdiction both to make, and to remove this provision, in relation to the parenting order, as long as the reasons for its inclusion or exclusion could be justified having regard to the purpose of ss 48 and 4.

[64] The real issue is whether as a matter of procedural fairness and natural justice, it was appropriate to remove this condition, when that was not sought by either party in this hearing.

⁵ Section 48(4).

[65] In this case the evidence as to disputes over medical practitioners was adduced for the purpose of demonstrating the parental conflict, which the applicant said needed to be defused by moving to a parenting arrangement where there was a reduction in the times there would need to be a changeover at each other’s houses. It was not directed at a change in this condition as no such change was sought.

[66] Thus, while the Judge was being asked to vary the 2011 parenting orders, there was nothing in the application which signalled that changes were sought to this aspect of those orders. It was not the subject of L’s application, nor was there a cross- application by A seeking to modify this.

[67] It is an integral aspect of a fair hearing that the matters at issue are clearly identified so each party has an opportunity to adduce evidence and make submissions on those issues as they affect them. As was said in Furnell v Whangarei High Schools Board, natural justice requires that an affected party “be given an outline of the case against him ... [so that he has] ... a fair opportunity of correcting or contradicting it”.⁶

[68] The corollary of that is that issues not raised directly, or by implication, in the application, should not be adjudicated on as to do so “would stand the principles of pleading on their head”.⁷ While I accept this principle need not be rigidly applied in the family law jurisdiction, where it may be difficult to compartmentalise issues, caution must still be exercised before making orders which were not clearly within the scope of the application before it.

[69] I therefore do not consider that L could have anticipated that the Judge would review this condition with a view to removing it. As a matter of natural justice this change needed to be signalled in the application or, at the very least, during the hearing, so that L could respond to the possibility of its removal. Instead she was clearly taken by surprise by the Judge’s decision to unilaterally remove this condition which she considered had been included in order to reduce the risk of conflict between her and A over the choice of medical practitioners for the children. I therefore consider

⁶ Furnell v Whangarei High Schools Board [1973] 2 NZLR 705 (PC) at 723.

⁷ Scott v Hutchins & Dick Ltd HC Auckland CP 154/98, 25 May 1999 at 15.

this change was not sufficiently related to the subject matter of the application to be anticipated as a possible outcome.

[70] However, to the extent that further controls on provision of information, including on medical treatment, have been made in the orders, I accept those relate to the communication issues which affected changeovers and therefore do arise logically out of the application. They should therefore be retained.

[71] Accordingly, the appeal is allowed to the extent that the original condition 18 of the existing parenting orders should be retained. Condition (c) of the order made on 15 June 2015 will therefore be amended to read:

(c) The parties shall continue to have the children attended on by their current GP Barbara Fraser but this will not preclude the children being seen by other medical practitioners outside of normal working hours. The parties agree not to use friends of theirs to see the children in a medical capacity except in emergencies. Each parent shall consult the other in advance of medical appointments for their children unless impracticable and, in that event, shall provide sufficient information as soon as possible thereafter for the other parent to understand why the appointment was made, nature of treatment and prognosis.

Sixth ground of appeal – the Court placed undue weight on the effect to the children of a changing routine

[72] The final ground of appeal challenged the Court’s conclusion that:

A change in care arrangements proposed by the mother will represent a change in routine for the children that requires the full support of both parents and the children”. The proposed changes are only supported by one parent.

[73] Counsel for L submitted that this statement was inherently contradictory because the status quo, too, was only supported by one parent. It was also submitted that it was contradictory for the Court to endorse the week about care arrangements during the school holidays, but not during term time.

[74] However, the change to care arrangements during the school holidays was simply formalising an agreed position between the parties. It is understandable that the Court was willing to approve such an arrangement. Furthermore, one of the reasons for retaining the split weekend arrangements was that the extracurricula activities of the children during term time would not be disrupted by having each
parent only supporting the child in the activities that that parent had organised. Thus, for example, the children enjoyed their father taking them to swimming on Sunday, and this would be facilitated by the father normally having them on Sunday during term time. There had been evidence in the past of one parent not supporting activities the other had arranged.

[75] In terms of the assertion that it was inconsistent for the Court to say that the proposed change was only supported by one parent, the key issue that the Court was having to determine was whether the change promoted the interests of the children. In that regard, it was faced with a choice between the current arrangements which, at least in recent times, were generally working and which were accepted by all three children, and the instability that might be generated through change, particularly when it was not supported by one parent. Given the history of these parties, the Judge elected the former, rather than to risk the uncertainty that might be generated by a change that was hotly opposed by one parent. There was nothing unusual in his decision in that regard. In making that decision he weighed up all the relevant matters before him and, necessarily, put the interests of the children first.

[76] The appeal on this ground fails.

Conclusion

[77] The appeal is allowed only to the extent that the Judge’s decision to revoke the condition of the 2011 consent orders relating to medical treatment, is overturned. The wording of that condition is to be incorporated in order (c) as set out in [71] above. The appeal is otherwise dismissed.

[78] The issue of costs is reserved. Given the respondent has been largely successful in resisting the appeal, my preliminary view is that an award of 2B costs in his favour is appropriate. If, however, costs cannot be agreed, then memoranda may be exchanged as follows:

(a) a memorandum on costs from the respondent is to be filed and served within 20 working days of the date of this decision;
(b) a memorandum in reply by the appellant is to be filed and served 30 working days from the date of this decision;

(c) a memorandum in reply is to be filed and served 35 working days from the date of this decision.

[79] Counsel are to limit the memoranda to a maximum of five pages.

Solicitors:

Wynyard Wood, Auckland Haigh Lyon, Auckland