Baker v Harding [2018] NZHC 2885 (7 November 2018)

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

UNDER	the Care of Children Act 2004
IN THE MATTER	of an appeal against a decision of Her Honour Judge Malosi in the Family Court at Auckland dated 18 April 2018
IN THE MATTER	of proceedings under the Care of Children Act 2004
BETWEEN	THOMAS BAKER Appellant
AND	PATRICIA HARDING Respondent

Hearing:	10-11 October 2018
Counsel:	P Cobcroft and P Lavus for the Appellant P A Fairbrother for the Respondent S Palinich as Lawyer for the Child
_Judgment:	_{7 November 2018}

[1] This case is about the care of the only child of the parties, Rose Baker, who is aged six and a half. Rose’s father, Mr Baker, appeals the decision of Judge Malosi in the Family Court at Auckland dated 18 April 2018.¹The Judge awarded primary care to Rose’s mother, Ms Harding, who had relocated with Rose from Auckland to Napier, with contact given to Mr Baker.²

[2] The appeal was heard together with a new application by Mr Baker under the Care of Children Act 2004 (the Act) dated 31 May 2018 seeking various orders, including an order that Rose relocate to Auckland to be in his day-to-day care, with contact given to Ms Harding (the new application). The new application was transferred to this Court from the Family Court.

[3] Mr Baker and Ms Harding met in 2000 when they were aged 17 and 19 respectively. They entered into a de facto relationship the following year and eventually became engaged, although they did not marry. They lived together in Auckland.

[4] Rose was born on 24 March 2012 and the parties separated in January 2013 after Ms Harding became aware that Mr Baker had been having a long-term affair with his now wife, Deidre (Mrs Baker).

[5] At the time the parties separated, Rose was aged nine months. She remained in the primary care of Ms Harding and the parties established a regime of contact for Mr Baker.

[6] On 18 January 2014, at a formal proof hearing, a parenting order was made granting Ms Harding day-to-day care of Rose, with contact for Mr Baker every second weekend from Friday afternoon until Sunday afternoon, each Wednesday overnight

and at other times as agreed between the parties. It appears that the order effectively confirmed the arrangements the parties had agreed.

[8] Ms Harding began considering a move away from Auckland in the hope that by moving to the provinces, that would reduce her living costs and increase the amount and quality of time she could spend with Rose.

18 September 2015 and reached agreement that she could do so. Contact arrangements were also put in place for Mr Baker. From the time of the move until Rose started school, that was one week per month; after she started school, it was for one weekend per month and one week of the term school holidays; and other times as agreed. There were also other contact provisions, including for birthdays and Christmas.

[10] Ms Harding and Rose moved to Napier on 2 November 2015 pursuant to that agreement.

[11] On 19 November 2015, without any prior advice to Ms Harding, Mr Baker applied to the Family Court for a variation of the parenting order and for a guardianship direction that Rose live in Auckland. In his application, Mr Baker said that he was able to provide care for Rose on a full-time basis if Ms Harding wished to remain living in Napier.

[12] On 22 June 2016, an interim parenting order was issued by consent in terms of the FDR agreement referred to in [9] above. In other words, Rose was to remain in the day-to-day care of Ms Harding in Napier, with contact for Mr Baker. The order was expressed to be subject to the proceedings brought by Mr Baker.

[13] On 24 January 2017, a direction was made for Mr Baker to file a formal application for day-to-day care,³and a direction was made by consent for Rose to remain living in the Napier, Hastings area until further order of the Court. Whether that direction was made under s 46R of the Act, or whether it was a condition of the interim parenting order, and the effect of Judge Malosi’s decision on that direction, was the subject of some debate before me. I will refer to that in due course.

[14] On 13 March 2017, the interim parenting order of 22 June 2016 was varied by consent. The principal changes were that Mr Baker was to have contact with Rose every third and sixth weekend of each school term from Friday after school to Sunday afternoon, and for the first nine days of each term school holiday.

[15] That order was in force at the time of the hearing of Mr Baker’s applications before Judge Malosi which took place between 24 and 27 October 2017. At that hearing, both parties sought to have Rose in their day-to-day care, but were open to the other parent having, as Judge Malosi described it, “regular and generous contact”.⁴

[16] In her decision dated 18 April 2018, Judge Malosi determined that it was not in Rose’s welfare and best interests for her to be relocated back to Auckland.⁵The Judge therefore dismissed Mr Baker’s applications, discharged the interim parenting order of 13 March 2017 and made a final parenting order granting Ms Harding day-

to-day care of Rose, with contact for Mr Baker. Various other conditions were also imposed.

Mr Baker her intention to move from Napier to live with her partner, David Freeman. There was evidence on this matter in the course of the Family Court hearing.

[18] I now mention events subsequent to the hearing in the Family Court but prior to the delivery of Judge Malosi’s decision. On 1 March 2018, Ms Harding sent

As you are aware [David] and I have been together and in a committed relationship for the last 2 years. We now want to progress forward in our next step of living together as a unit.

Just a follow up to the e.mail I sent you before about [David] looking at jobs closer to Auckland:

[David] has been offered a brilliant job opportunity managing a farm over in the BOP – Whakatane area.

My cousin is a teacher over there and has pointed me towards 3 good schools in the area to choose from.

The good news is you’ll be pleased to know this is closer to Auckland as you said in court/judge you have no problems with us moving closer to Auckland. You just objected to [Rose] moving any further South of Hawkes Bay.

We have seriously been looking at Farm Manager positions with [David] mindful and acknowledging of your request that we only move closer, not further away.

There is a [sic] airport 15mins away with flights to Auckland. Whakatane hospital is 15mins away.

Please don’t worry about [Rose] regarding our plans as she is aware and excited/happy at the prospect of our plans.

So just keeping you informed of how our plans are moving forward and progressing at the moment.

In terms of yr comment to moving closer to Auckland in court, closer to Auckland “Hamilton” area yes those were the words given and u will find those words In the documents from court.

It seems very clear to me that u think u have won the case and starting to dictate again how its going to be.

I would suggest that an application to the courts from yrself to move that i will contest would be the only way that’s going to happen and i will contest it so that application will be at yr cost not mine!!

opinion and she has two parents me and u so try and communicate not tell me how its gona be.

[20] On 7 March 2018, counsel for Ms Harding wrote to counsel for Mr Baker. The letter included the following:

We have received instructions to write to you regarding Ms Harding’s now firm proposal to move to live with her partner, [David Freeman].

Ms Harding was of the view, from [Mr Baker’s] evidence at the Family Court Hearing that he opposed [Rose] moving any further away from where she is currently located ... which has precluded her moving to live with Mr Freeman at his current farm ...

Consequently, she and [Mr Freeman] have sought to move to a position on a farm that is closer to Auckland, and they have found such a position in the Edgecumbe area, in the Bay of Plenty, which they believe meets theirs and [Rose’s] needs.

Obviously, it has been impossible for [Mr Baker] to be involved in this decision, as it involves a contract which needed to be entered into between the farm and [Mr Freeman] in a timely manner.

[Mr Freeman] has now accepted the contract to be the Farm Manager and he and [Ms Harding] will be making the move to live together in mid-May this year.

[Ms Harding] would like to have [Mr Baker’s] consent for whatever parenting arrangements are decided by the Court to be amended so that [Rose] moves to and from the Bay of Plenty area, rather than the Hawke’s Bay area.

[Ms Harding] appreciates that the Court decision has not been released, but hopes that the issue will have been addressed in the decision, as the Judge specifically asked the parties questions about the anticipated situation of [Ms Harding] and [Mr Freeman] moving in together.

[21] The letter also included details of the farm, as well as housing and school options for Rose in the Edgecumbe area. Mr Baker was asked if he wished to be involved in the process of selecting a school.

[22] Counsel for Mr Baker advised by email dated 29 March 2018 that he did not consent to the proposed move to Edgecumbe and further stated that given Judge

Malosi’s decision was not yet available, the evidence needed to be placed before the

[23] Counsel for Ms Harding then filed a without notice application seeking directions and leave to file updating evidence. The application was supported by an affidavit of Ms Harding explaining the proposed move to Edgecumbe and the proposed new living arrangements. Both the application and affidavit are dated

13 April 2018, but carry a Waitakere District Court stamp of 18 April 2018 and an

[24] It is apparent from Judge Malosi’s decision that the application and affidavit were not considered by the Judge before she released her decision. Counsel for

Ms Harding then sought the return of the application and affidavit from the court. No further documents were filed by Ms Harding in the Family Court.

[25] Mr Baker filed his appeal against the decision of Judge Malosi on 18 May 2018 and served it on Ms Harding on 21 May 2018.

[26] Ms Harding and Rose moved to Edgecumbe at the end of May 2018. Mr Baker became aware of the move on the evening of 27 May 2018 during Facetime contact with Rose who told him she was moving to Edgecumbe on 30 May 2018 with her mother and Mr Freeman. On Monday 28 May 2018, Mr Baker telephoned Rose’s school in Napier and was advised that Ms Harding had permanently withdrawn Rose from the school on Friday 25 May 2018.

[27] Also on 28 May 2018, counsel for Mr Baker emailed counsel for Ms Harding seeking an urgent undertaking that Rose would be returned to the Napier, Hastings area. Ms Harding did not give an undertaking as sought.

[28] Mr Baker then filed a without notice application in the Family Court on 31 May

2018 seeking a direction that Rose relocate to Auckland and that she be in his day-to- day care, with contact from Ms Harding (namely, the new application).

[30] Whether fresh evidence is admitted on appeal is an appeal-dependent decision for the Judge applying the test in r 20.16(3) of the High Court Rules:

(3) The court may grant leave only if there are special reasons for hearing the evidence. An example of a special reason is that the evidence

relates to matters that have arisen after the date of the decision appealed against and that are or may be relevant to the determination of the appeal.

[31] In this case, the fresh evidence comprises the evidence filed in support of, and in opposition to, the new application. It relates to the move to Edgecumbe, which arose after the decision appealed against.

[32] Ms Harding is seeking that Rose remain in her care in Edgecumbe as the outcome of Mr Baker’s appeal. I therefore made an order at the hearing admitting the fresh evidence as updating evidence in the appeal.

[33] A significant part of Judge Malosi’s decision involved a discussion and determination of three factual issues (particularly (b) below):⁶

[34] Mrs Baker had disclosed to Ms Harding that she had accidentally slapped Rose. The way Judge Malosi described Mrs Baker’s account of the incident was that she was drying Rose with a towel when Rose bit her on the leg.⁷Instinctively, Mrs Baker slapped Rose’s face, describing her reaction as “like when you get a bee sting”. Under cross-examination, Mrs Baker said that Rose cried, not because she was hurt but because she realised she had hurt Mrs Baker.

[35] The psychologist, Peter Coleman,⁸was aware of the allegation and Judge Malosi says that he dismissed it without much difficulty.⁹The Judge accepted Mrs Baker’s account of the incident as entirely plausible.¹⁰She noted that Mr Baker was present throughout and the Judge said that she did not accept for a moment that he would not have intervened and taken Mrs Baker to task if he had any concerns for Rose’s safety.¹¹

[36] Judge Malosi then turned to the allegation that Mrs Baker’s youngest daughter, Delia, had sexually abused Rose. She stated that this was the most contentious issue in the case.¹²The Judge noted that although it was not altogether clear when the alleged abuse occurred, there was a notification made to CYFS by Ms Harding when Rose was four years old and Delia was 10 years old.¹³

[37] Before considering the evidence, the Judge noted that she was conscious that this issue arose when the parties were in the throes of one of the most difficult periods of the proceedings.¹⁴At that time, Ms Harding had not long been served with

Mr Baker’s application for Rose to be relocated back to Auckland. Not long after that, the notification was made to CYFS regarding Mrs Baker slapping Rose.

[38] On 26 April 2016, Ms Harding had taken Rose to a GP because she had been wetting the bed. A urine test was taken. On the way home from the appointment,

Ms Harding asked Rose if anyone had touched her “booboo” (Rose’s word for her vagina). Rose said that “JuJu” (her name for Delia) touches her booboo and JuJu makes her touch JuJu’s booboo. Two days later, Ms Harding made a notification to CYFS.

[39] The urine test established that Rose did not have a urinary tract infection but

⁸Mr Coleman provided a specialist report to the Family Court under s 133 of the Care of Children

[40] On 12 May 2016, a child focussed interview was conducted with Rose by CYFS social workers. She told them that Delia had touched her booboo, but nothing further. CYFS conferred with the police and it was agreed that, given the limited disclosures and Delia’s age, it was not advisable to proceed with an evidential interview with Rose. Ms Harding was advised of this decision on 24 May 2016.

[41] Ms Harding did not accept that outcome and engaged a psychotherapist, Sarah Tait-Jamieson, to interview Rose on 7 June 2017. Although no new disclosures were made, Ms Harding asked CYFS to revisit the decision about the evidential interview. CYFS responded that they were closing their investigation and making referrals to community agencies for support to be offered to Rose, Delia and their families. The police also confirmed they would not proceed further.

[42] Ms Harding then successfully applied to the Sensitive Claims Unit of ACC for specialist counselling for Rose.

[43] In his evidence before Judge Malosi, Mr Coleman endorsed the decision of CYFS and the police not to conduct an evidential interview of Rose. He said that if something had occurred between Delia and Rose, that did not necessarily mean it was sexual abuse. It could well have been “child exploratory behaviour”. The only concern that Mr Coleman had was the age difference between the girls, but that did not lead him to conclude that sexual abuse had occurred. He considered that the form of counselling Ms Harding achieved with ACC was “a step too far”.

[44] The Judge found, on the balance of probabilities, “albeit by a wide margin”, that Delia did not sexually abuse Rose.¹⁵Judge Malosi went on to say that she was naturally concerned during the hearing about Ms Harding’s unwillingness to accept the possibility of such a finding and the prospect that her strongly held views had been transferred to Rose.¹⁶She said:

[43] ... By the close of the hearing however, I sensed a softening of her position. In many ways the hearing appeared to be cathartic for her. She had an opportunity to tell [Mr Baker] how devastating his infidelity had been for her, but more importantly how she had been able to rebuild her life.

[44] I find that when [Ms Harding] took [Rose] to the GP on 28 April 2016, she heard what she wanted to hear. The possibility (and it was no more than that at that stage) of a urinary tract infection was all she needed to set out on a long and tortuous journey for all concerned. If her desire was to hurt and punish [Mr and Mrs Baker] she may well have achieved that, but the collateral damage to [Rose] and [Delia] has been huge. I do not go so far as to say she has psychologically abused her daughter, but there is no doubt in my mind that [Ms Harding] has work to do on herself.

[45] All that said, I am satisfied she has it in her to move on and put this allegation to rest.

[45] Turning to other matters, the Judge noted that Mr Baker and Ms Harding readily acknowledged that Rose needs both of them in her life.¹⁷She said that when they are not focussing on the parenting of the other, they are great parents to Rose and they both have much to offer her.¹⁸However, she went on to say that there was no doubt there was huge room for improvement “by these parents on the consultation and co-operation front”.¹⁹She said that it appeared when they are left to themselves to make decisions about their daughter, they do just fine, and that family and friends, including Mrs Baker, needed to step back.²⁰

[46] Judge Malosi said that it was promising that Mr Baker and Ms Harding were willing to engage in communication counselling.²¹The Judge considered that to be critical.²²

[49] ... I consider that Napier has much to offer [Ms Harding] and [Rose]. I am sure for [Ms Harding] it has made her a better parent. She has less financial pressure upon her, and the time she would otherwise have spent in the Auckland traffic she is now able to spend with [Rose]. They share a mutual love of horses, and [Ms Harding] is a very accomplished rider. Mr Coleman was particularly complimentary of her new partner, and she was hopeful that would be long term and lead to them living together in the not too distant future. [Rose] enjoys a warm relationship with him.

[48] The Judge referred to Mr Baker’s financial and domestic position, and acknowledged that if Rose were to return to Auckland to live with her father, she would

have the benefit of being “embraced within this loving family unit”.²³On the other hand, Judge Malosi said that irrespective of whether Rose was in Ms Harding’s day-

to-day care in Auckland or in the shared care of the parties, “she would not have a happy mother”.²⁴

[49] The Judge was critical of Mr Baker dropping “a bombshell” two weeks after Ms Harding and Rose left for Napier by changing his mind on the relocation to Napier.²⁵She considered that showed a complete lack of understanding and empathy on his part of the impact of his change of mind, and she said she could not rule out Mrs Baker’s influence on the decision.²⁶

[50] The Judge accepted that although contact had not always run smoothly, she found Mr Baker’s insistence that he was not prepared to exercise contact in Napier without his wife and stepchildren, was unhelpful to Rose.²⁷

[54] At the time of the hearing, [Rose] had been living in Napier for just shy of 2 years, a significant proportion of her young life. She started school there. She is accustomed to having contract with her father and her ‘[Baker] family’ in Auckland.

[55] Ultimately, I have not been persuaded it is in [Rose’s] welfare and best interests for her to be relocated back to Auckland. It follows then that she is to remain in the day to day care of [Ms Harding] in Napier, and continue to have contact with [Mr Baker] although I would hope going forward that some of that contact might occur in Napier.

(a) dismissed Mr Baker’s applications of 19 November 2015 for leave to apply to change an existing parenting order, and a guardianship direction as to place of residence;

(b) dismissed Mr Baker’s application of 17 February 2017 to vary the interim parenting order dated 22 June 2016;

(i) every third weekend of each school term from Friday after school to Sunday afternoon;

(ii) if contact falls on a long weekend during the term, it is to extend to include the public holiday;

(iii) during school term holidays from the first Friday until the second Tuesday;

[53] The Judge also imposed conditions. I will refer to them as necessary later in this judgment.

Judge erred in her determination of the best interests of Rose and, in particular:

(a) failed to have proper regard to, or placed insufficient weight on, the conduct of Ms Harding in determining the welfare and best interests of the child;

(c) erred in determining that it was in the welfare and best interests of the child to remain in the day-to-day care of Ms Harding;

(d) failed to adequately carry out her multi-faceted analysis of the merits of Mr Baker’s application for the child to relocate to Auckland;

(e) placed too much weight on Ms Harding’s needs as opposed to the child’s needs; and

(b) a direction providing for Rose to attend Karaka Primary School (under s 46R of the Act);

(d) variation of the 18 April 2018 orders to provide for Rose to be in his day-to-day care, with contact for Ms Harding.

[56] The appeal is a general appeal and falls to be determined in accordance with the Supreme Court’s statement of principle in Austin, Nichols & Co Inc v Stichting

Lodestar,²⁹confirmed in the context of appeals from decisions under the Act in Kacem v Bashir.³⁰It was for Mr Baker to show that Judge Malosi’s decision was wrong. If that is shown, it is for me to reach my own conclusion placing the weight I consider appropriate on the first instance decision.

[57] There is a further consideration in this case, and that is there is also the separate, but related, application brought by Mr Baker under the Act and fresh evidence which I have admitted on the appeal. In that regard, I refer to the following statement of Tipping J in Kacem v Bashir:

[31] ... that on a general appeal of the present kind, the appellate court has the responsibility of considering the merits of the case afresh. The weight it gives to the reasoning of the court or courts below is a matter for the appellate court’s assessment. We should add here that if the appellate court admits further evidence, that evidence will necessarily require de novo assessment consideration of how it affects the correctness of the decision under appeal ...

[58] Additionally, both Mr Baker and Ms Harding were cross-examined. Although the evidence in cross-examination did not cover all the factual issues that were before the Family Court, this Court has nevertheless had the opportunity to make some assessment of the credibility of both Mr Baker and Ms Harding.

[59] I will first consider Mr Baker’s appeal based on the evidence that was before Judge Malosi. I will then consider the fresh evidence and determine the effect, if any, of the relocation to Edgecumbe on Rose’s welfare and best interests, and whether her welfare and best interests would be better served by returning to Auckland to live with her father.

[60] In large part, that second step will determine the outcome of the new application which I will address in the final part of this decision.

²⁹Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].

(a) 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; and

[62] Under s 4(1) of the Act, a child’s welfare and best interests are to be the “first and paramount” consideration in a case such as the present. By its reference to “particular circumstances”, s 4(2) underlines the case-specific nature of the inquiry.³²

Under s 4(2)(a), a court, in determining what best serves a child’s welfare and best interests, must take account of the principles specified in s 5.

[63] The principles that must be taken into account as listed in s 5 are (in summary):

(a) a child’s safety must be protected and, in particular, they must be protected from all forms of violence;

(b) a child’s care, development, and upbringing should be primarily the responsibility of his or her parents and guardians;

(c) a child’s care, development, and upbringing should be facilitated by ongoing consultation and co-operation between his or her parents, guardians, and any other person having a role in his or her care under a parenting or guardianship order;

(d) a child should have continuity in his or her care, development, and upbringing;

(e) a child should continue to have a relationship with both of his or her parents, and a child’s relationship with his or her family group, whānau, hapū, or iwi should be preserved and strengthened; and

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

[64] The above principles are not exclusive and any other matters relevant to the child’s welfare and best interests can be taken into account.³³

[65] Under s 6 of the Act, a child’s views must be taken into account. It is for the court to determine what weight, if any, should be placed upon those views.

Ground one: conduct of Ms Harding for purposes of determining the welfare and best interests of the child

(a) Ms Harding failed to act jointly or to adequately consult with Mr Baker about guardianship issues as is required by s 16 of the Act;

(b) Ms Harding failed to consult with Mr Baker about Rose’s disclosures of possible sexual abuse and possible sexualised behaviour before taking the issues to CYFS (as it then was);

(c) The lack of a balanced approach resulted in Rose being subjected to multiple unnecessary assessments and treatment, which placed Rose at risk of immediate and long-term psychological harm; and

(d) Ms Harding’s fixed belief that Rose was sexually abused is indicative of an entrenched and intractable attitude to the situation.

[68] Ms Cobcroft submits that the Judge failed to have regard to the increased risk that Ms Harding will continue to expose Rose to her view that abuse occurred and that she was the victim of such abuse. She says that the Judge failed to have regard to the views, and accordingly the influence, of both the maternal grandmother and a family friend, Sarah Barker (who assisted with Rose’s care when Ms Harding was living in Auckland), on this issue.

[69] Ms Cobcroft acknowledges that Ms Harding’s behaviour may not amount to psychological abuse, but she submits it demonstrates limited insight into the impact of

her behaviour on Rose and there is thus the potential for Rose to suffer long-term psychological harm.

[70] I do not consider that Judge Malosi erred in her assessment of Ms Harding’s behaviour in determining Rose’s welfare and best interests. My reasons follow.

[71] In her report to the Family Court dated 21 June 2016, Ms Palinich, lawyer for the child, reported on her contact with the CYFS social worker from the Napier office who was involved in the referral made by Ms Harding. Ms Palinich’s report contains the following:

The Ministry however have recommended that both parties engage with community agency support through the Ministry’s differential response process for both families to gain some knowledge and learning about keeping themselves safe, good and bad touching, boundaries and safety rules in the home. The Ministry have made these referrals.

[72] It is apparent that that advice was applied in different ways by Ms Harding and

[73] However, by the time of the hearing before Judge Malosi, Ms Harding, having read Mr Coleman’s report, while believing that the touching had in fact occurred, accepted that it could have been normal childhood exploratory behaviour as opposed to sexual abuse. When asked in cross-examination if she thought the touching had a sinister connotation, she said that she did not think so. She said that, with the arrangements for Delia and Rose to have separate rooms when she stayed with her father, it would not be an ongoing problem because they were working through it. She said she had not continued to talk to Rose about what had happened between her and Delia.

[74] In relation to the CYFS investigation which had been closed, there was the following during questioning from Ms Palinich:

[75] As noted above, the Judge concluded that, “... I am satisfied she has it in her to move on and put this allegation to rest”.³⁴Having regard to the evidence I have referred to above, I consider there was a proper evidential basis for the Judge’s finding that Ms Harding would be able to “move on”.

[76] In this Court, although the fresh evidence focused mainly on the issues arising from the move to Edgecumbe, Ms Harding was cross-examined on her current position regarding the alleged touching. She continued to acknowledge Mr Coleman’s opinion that if it had happened, it could just have been child’s play. When asked about the ACC sensitive claim file, she said she had telephoned them and told them it was not needed. When asked by Ms Palinich if the ACC file had not in fact been closed, would she be happy for the file to be closed, her answer was “yes”.

[77] Having seen and heard Ms Harding give this evidence, that reinforces my view that Judge Malosi was correct to find that Ms Harding would be able to move on.

[78] As to the position of the maternal grandmother and the friend Ms Barker, their evidence was that they believed that the alleged touching by Delia had occurred. However, any impact of their views on Ms Harding is countered both by her acceptance that any touching was not sexual abuse and by the condition imposed by Judge Malosi:³⁵

Neither party shall seek specialist medical assessments or medical treatment for Rose (except in an emergency situation) or therapeutic treatment including counselling without agreement of the other parent or order of the Court.

Grounds two and three: alleged failure to adequately consider all the principles set out in s 5; and error in determining that it was in the welfare and best interests of Rose to remain in the day-to-day care of Ms Harding

[80] Ms Cobcroft addressed these two grounds together in her submissions. I will follow the same approach in this judgment.

[81] Ms Cobcroft submits that the Judge failed to set out the s 5 principles in her assessment of the evidence.

[19] ... In making that determination [what outcome will best serve the welfare and best interests of the particular child] the s 5 principles must each be examined to see if 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 ...

[54] ... the Judge should have referred to all the s 5 principles, briefly indicating which were not relevant and why, before discussing those which were relevant in more detail. As Rodney Hansen J notes in AD v KT [Parenting order], such an approach is desirable as it helps to avoid unnecessary argument about whether the Judge has or has not considered particular principles.

[84] In the present case, the learned Family Court Judge clearly considered s 5(a), but without referring to the statutory provision. It can be discerned from the decision that other principles in s 5 were also considered, but this was similarly done without reference to the principles themselves as set out in s 5. That, of course, does not in and of itself mean that the Judge did not, in substance, consider the principles or that she erred in her determination of the welfare and best interests of Rose so far as her day-to-day care was concerned.

[86] Ms Cobcroft submits that Judge Malosi inadequately dealt with the issue of psychological abuse and as a result the mandatory safety assessment was incomplete.

[87] I have already referred to the evidence and the Judge’s decision regarding the way in which Ms Harding handled Rose’s “disclosure” at [70] to [79] above.

[88] I acknowledge the use of the word “must” in this paragraph but I do not consider any further discussion or analysis is required. The Judge made no error in relation to the way in which she dealt with the safety issues that arose in this case.

Section 5(b) – a child’s care, development, and upbringing should be primarily the responsibility of his or her parents and guardians

[89] Ms Cobcroft submits that Mr Baker has been restricted from exercising primary responsibility for Rose’s care by Ms Harding’s failure to include him in decisions about Rose’s life. She says that Ms Harding abdicated her responsibility and relied too heavily on the advice of her mother and support person, Ms Barker.

Ms Cobcroft submits that the influence of those adults inflamed the conflict between the parties and Ms Harding’s pursuit of the investigation into the allegations of sexual abuse. She says that it is most likely that this influence will continue to impact on Rose’s welfare and best interests. Ms Cobcroft submits that this issue should have had a greater focus in the Judge’s decision.

[46] [Mr Baker] and [Ms Harding] readily acknowledge that [Rose] needs both of them in her life. When they are not focussing on the parenting of the other, they are great parents to [Rose]. They both have much to offer her.

[47] There is no doubt there is huge room for improvement by these parents on the consultation and co-operation front. It appears when they are left to themselves to make decisions about their daughter they do just fine. Family and friends need to step back. With respect, that includes [Mrs Baker]. Whilst I accept she and her daughters are a huge part of [Rose’s] life, and no-one argues otherwise, [Mr Baker] and [Ms Harding] have never had the space to find their way as co-parents. To be able to move forward they need to have that, if only for a short time.

[91] The Judge was clearly alive to the need for others, including the maternal grandmother and friend Ms Barker, to allow the parties to get on with their parenting.

[92] Although the Judge did not address the issue in detail, her decision identified the need for others to stand back so the parties could get on with co-parenting.

[93] There was no error by the Judge in considering the factual issues that arose in terms of this principle.

Section 5(c) – the need for ongoing consultation and co-operation between parents

[94] Ms Cobcroft refers to Judge Malosi’s statement that “[t]here is no doubt there is huge room for improvement by these parents on the consultation and co-operation front”, and says that comment was not sufficient and the Judge needed to analyse this feature more comprehensively.³⁸

[95] I do not consider there was an error here. It is apparent from the evidence that there was fault on both sides at different times. Each also acknowledged that they could have done better. A point by point detailing of which parent had failed to communicate with the other on which particular occasion was unnecessary and would have served no purpose.

[96] The Judge recognised that this was an issue and made an appropriate direction:³⁹

Pursuant to s.46G, the parties are referred to communication counselling. 10 sessions are approved (with Dr Sarah Calvert, or someone with her experience, if that is at all possible).

[97] Ms Cobcroft submits that the Family Court Judge placed too much weight on the fact that Rose had been in the primary care of Ms Harding in Napier for almost two years and that Rose had settled at school.

[98] Ms Cobcroft submits that Mr Baker’s stability and continuity should be accorded greater weight in terms of Rose’s welfare and best interests. Rose’s relationships within that family are close and loving.

[99] In weighing the evidence relevant to this principle, the Judge did not ignore what Mr Baker had to offer. She said:

[50] I take into account that [Mr Baker] is financially secure and very settled, raising his three (step) daughters together with his wife. [Ms Harding] quite properly acknowledged the close and loving relationship between [Rose] and her sisters (there is no such terms as ‘step-sisters’ for them). Obviously if [Rose] were to return to Auckland to live with her father, she would have the benefit of being embraced within this loving family unit.

[100] On the other hand, Rose has always been in the day-to-day care of her mother. Mr Coleman, in his report for the Family Court, stated that Rose’s attachment to

Mr Baker remained strong and that it did not seem to have diminished since she moved from Auckland. That evidence would support a conclusion that Ms Harding has been able to promote the relationship between Rose and her father despite the adult conflict.

[101] At the time of the hearing before Judge Malosi, Ms Harding was in a steady relationship with Mr Freeman. At that time, Mr Freeman was living and working in an area about a one hour journey by car from where Ms Harding was living with Rose. The evidence was that Rose had a strong relationship with Mr Freeman and the evidence of Ms Harding was that Mr Freeman’s family treated her and Rose as part of their family.

[103] In support of Mr Baker’s position, it is apparent that Rose has strong relationships with her stepmother and step-sisters who she refers to as “mummy” and her “sisters” respectively. The evidence is that she regards them as family and she looks forward to seeing them when she goes to Auckland and during Facetime contact. There was evidence that Ms Harding not only promoted Rose’s relationship with her father, but that she also fostered her daughter’s relationships with her father’s wider family. One example of this was Ms Harding’s welcome response to contact between the wider family and Rose when they came to the Hawke’s Bay for horse riding events.

[104] In that regard, Rose has a strong interest in horse riding and both her parents support her in this. Ms Harding is a keen rider herself and Mr Baker was complimentary of her skills in teaching Rose. Mr Baker, for his part, although he is not involved in horse riding, has ensured that Rose has a pony in Auckland. It is available to her when she is in Auckland and Mr Baker’s sister Nerida provides Rose with riding instruction.

[105] Although both parents strongly support Rose with this interest, Ms Harding is more directly involved in this activity with Rose.

[49] So far as continuity of care is concerned, I consider that Napier has much to offer [Ms Harding] and [Rose]. I am sure for [Ms Harding] it has made her a better parent. She has less financial pressure upon her, and the time she would otherwise have spent in the Auckland traffic she is now able to spend with [Rose]. They share a mutual love of horses, and [Ms Harding] is a very accomplished rider. Mr Coleman was particularly complimentary of her new partner, and she was hopeful that would be long term and lead to them living together in the not too distant future. [Rose] enjoys a warm relationship with him.

[35] The fifth is that choice of residence and relocation may be affected by the nature and duration of the existing custodial arrangements. Usually it would be artificial not to consider them together. But in some cases the duration of the existing arrangements and the greater degree of change proposed may require greater weight to be accorded the status quo.

[108] I consider there was an evidential basis to support the Judge’s conclusion in [106] above and it cannot be said that the Judge made an error in the weight that she attributed to the evidence. It will, however, be necessary to weigh the competing contentions further in the context of the move to Edgecumbe. I do so later in this judgment.

Section 5(e) – relationship with both parents and with whānau or family group to be preserved and strengthened

[109] Ms Cobcroft submits that the Family Court Judge placed insufficient weight on Ms Harding’s attitude towards Mr Baker and the paternal family, and the impact of this on Rose’s relationships with that family. She says that Ms Harding is supported in her negative view point by her mother and Ms Barker. This negativity will impact on Rose. She submits that the alienating behaviours of Ms Harding should have been considered by the Judge in terms of Rose’s long-term interest.

[110] These submissions are a repeat of submissions already made. In my view, the arrangements contained in the orders of Judge Malosi provided the opportunity for Rose to have contact with all of the important people in her life. I have no doubt that whichever parent Rose lives with, the other parent and his or her family will think that they do not have enough contact with Rose. She is a child who is loved by both her parents, as I have already said, and also by the wider family of each parent, including Mrs Baker and the members of her immediate and wider family.

[111] I repeat my reference to Mr Coleman’s evidence from [100] above, that Rose’s attachment to Mr Baker remained strong and did not seem to have diminished since she moved from Auckland. This effectively answers the criticism made by

[112] The effect of Judge Malosi’s orders is that Rose does continue to have a relationship with both of her parents. They also enable Rose’s relationships with the members of her wider family to be preserved and strengthened. The evidence is that Mr Baker’s siblings and his parents live relatively close to Mr Baker. Rose is therefore able to and does spend time with them when she is in Auckland during her contact times with her father.

[113] The Judge’s orders effectively recognised this. There was no error in this regard.

Section 5(f) – child’s identity – including culture, language, and religious denomination and practice to be preserved and strengthened

[115] Ms Cobcroft submits that this is a neutral factor for Rose. I am not so certain about that but I will discuss the issue, in the context of the current situation, later in this judgment.

Grounds four and five – no adequate multi-faceted analysis of the merits of

[116] Ms Cobcroft submits that it is difficult to ascertain the Family Court Judge’s weighing of all factors on relocation or the advantages and disadvantages to Rose from the decision. The Judge referred to factors in favour of Napier but there was no comparison with the advantages that could be offered to Rose in Karaka. The Judge therefore placed too much weight on the happiness of Ms Harding and not enough weight on the relevant advantages to Rose of relocation to Auckland.

Ms Harding having moved with Rose from Napier to Edgecumbe, and a fresh analysis is required. However, in short, I consider that the Judge correctly weighed the advantages to Rose of her returning to Auckland. I refer to [50] of the Judge’s decision set out in [99] above.

[118] The Judge correctly referred to Ms Harding’s happiness. The needs of very young children (Rose was aged five and a half at the time of the hearing) are of necessity tied in with their primary caregivers, and the welfare and best interests of young children are significantly affected by whatever affects their primary caregivers.⁴¹

[119] However, I say no more at this point as I will need to undertake my own analysis as a result of the move to Edgecumbe.

[120] Ms Cobcroft submits that the Judge did not appear to have taken Rose’s views into account at all. Rose’s views were referred to by the Family Court Judge as follows:

Ms Palinich who filed a report dated 28 September 2017 which included the following:

I asked [Rose] where she wanted to live. She responded that she wanted with [sic] live ‘with Daddy’. I asked her why. She replied because she wanted to ‘ride my horses’. Another reason she gave me, was that both Daddy and Mummy were married and further explained to me by using biscuits in her hand, how they were ‘husband and wife’. She then demonstrated to me how she fits in between Daddy and Mummy. [Rose] told me that she calls [Ms Harding] ‘Mama’ and refers to [Deidre] as ‘Mummy’.

... I asked [Rose] if it was decided that she would stay living with her Mama then would she want to see more of her Daddy and she responded, ‘Yes I like seeing Daddy’.

[20] To his credit [Mr Baker] did not attempt to use this to his advantage. Instead he quite appropriately conceded that [Rose’s] views as to where she wished to live, was largely influenced by whose care she was in at the time. Not only did [Ms Harding] agree with that, but so too did Peter Coleman, a Registered Psychologist who filed a report for the Court dated 16 January

[121] Judge Malosi expressly referred to Rose’s views but properly did not give them weight, having regard to the evidence referred to in her decision at [20] above.

[122] Rose’s current views have been referred to the Court by Ms Palinich. I will refer to those views further below.

[123] I now turn to consider the fresh evidence and will consider whether it changes my assessment of Mr Baker’s appeal.

[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.

[125] As will already be apparent, this is not a typical relocation case. Ms Harding and Rose moved from Auckland to Napier with Mr Baker’s consent. He then changed his mind and wanted Rose back in Auckland.⁴³Mr Baker then not only sought to have Rose relocate back to Auckland, but to be in his day-to-day care.⁴⁴That was the position before Judge Malosi.

[126] Mr Baker still wants Rose in his day-to-day care in Auckland. Ms Harding wants Rose to remain in Edgecumbe in her day-to-day care.

[127] Although this is not a typical relocation case, the principles in Kacem v Bashir

[24] Everything will depend on an individualised assessment of how the competing contentions should be resolved in the particular circumstances affecting the particular children. If, on an examination of the particular facts of a relocation case, it is found that the present arrangements for the children are settled and working well, that factor will obviously carry weight in the evaluative exercise. All other relevant matters must, of course, be taken into account and given appropriate weight in determining what serves the child’s welfare and best interests, as s 4(5) puts it.

[128] The central inquiry is whether Rose’s welfare and best interests would be better served by either remaining with her mother now that she has relocated to Edgecumbe

[129] Ms Cobcroft was highly critical of Ms Harding’s conduct in moving to Edgecumbe. First, Ms Cobcroft submits that in doing so, Ms Harding breached a Court order. In those circumstances, Ms Cobcroft submits that this Court cannot place any weight on assurances Ms Harding gave to the Family Court generally regarding her conduct.

[130] Ms Cobcroft identifies the breach as follows. On 24 January 2017, Judge Pidwell made a direction that:

By consent direction that [Rose] to remain living in the Napier, Hastings area until further order of the Court.

[131] Although the direction was made by consent, it was against the background of

Auckland. Ms Cobcroft therefore submits that the direction was made under s 46R.

[132] Ms Cobcroft submits that it was not a (further) condition of the interim parenting order of 22 June 2016. Such a direction, she submits, would have been expressed in a different way, namely that Rose be in the interim day-to-day care of her mother on the condition that she resides in the Napier, Hastings area.

[133] Ms Cobcroft’s position was that Judge Pidwell’s order remained in force following Judge Malosi’s decision. While Judge Malosi discharged Mr Baker’s application for a guardianship direction as to place of residence, the Judge did not discharge Judge Pidwell’s direction under s 46R.

[134] Ms Cobcroft characterised Judge Malosi’s lack of reference to Judge Pidwell’s interim direction and the fact that there was no reference to the place of residence in Judge Malosi’s orders as “a procedural flaw”. But, she nevertheless submitted that it was clear that Judge Pidwell’s direction of 24 January 2017 remained in force.

[135] For Ms Harding, Mrs Fairbrother submitted that Judge Pidwell’s direction was made by consent as an interim direction pending final resolution of the proceedings. She submits that no order issued from the Court as a result of the direction having been given. The direction does not specify whether an order is to issue and if so, whether

it is to be attached as a condition to the interim parenting order, or issued as a separate interim guardianship order.

[136] If it issued as a condition of the interim parenting order, it would have consequently been discharged when Judge Malosi made her final parenting order. That was Ms Harding’s belief.

[137] Mrs Fairbrother also submits that the prospect of Ms Harding and Mr Freeman living together and relocating to a place nearer Auckland was squarely before Judge Malosi. In that regard, she points to the decision under appeal where Judge Malosi said:

[49] ... Mr Coleman was particularly complimentary of her new partner [Mr Freeman], and she was hopeful that would be long term and lead to them living together in the not too distant future ...

[138] Mrs Fairbrother further submits that while Judge Malosi’s decision was pending, Ms Harding took the proper step of filing an application with a supporting affidavit updating the Court regarding the proposed move to Edgecumbe. Unfortunately, the filing of that application coincided with the date Judge Malosi’s decision was issued. The application was then withdrawn, with Ms Harding believing, as already noted, that Judge Pidwell’s direction was discharged.

[139] In considering the competing contentions on this issue, I first note that Judge Parsons, in the Family Court, had cause to mention the status of Judge Pidwell’s direction at the time she heard Mr Baker’s application under s 139A of the Act to bring the new application within two years of Judge Malosi’s decision. Before Judge Parsons, Mrs Fairbrother “... concede[d] that there is an interim s 46R order that appears not to have been discharged (and not finally determined) that was made by Judge Pidwell from January 2017”.⁴⁵

[140] Ms Cobcroft adopted the same position as she adopted in this Court, namely that Judge Pidwell’s direction was made under s 46R of the Act.

[141] Given the parties agreed on the statutory basis for Judge Pidwell’s direction, it was not necessary for Judge Parsons to undertake any analysis and she proceeded on the basis that “... there was no final determination of the s 46R interim order of January 2017. That matter in fact remains outstanding and before the Court and yet to be determined”.⁴⁶

[142] I accept Ms Cobcroft’s submission that Judge Pidwell’s direction was a direction under s 46R of the Act. Section 46R(1) provides:

(1) If 2 or more guardians of a child are unable to agree on a matter concerning the exercise of their guardianship, any of them may apply to the Court for its direction.

(1) The duties, powers, rights, and responsibilities of a guardian of a child include (without limitation) the guardian’s—

(c) determining for or with the child, or helping the child to determine, questions about important matters affecting the child.

[144] Important matters affecting the child include changes to the child’s place of residence.⁴⁷

[145] In this case, there was a dispute between guardians (with a hearing pending) over where Rose should live. That supports the proposition that Judge Pidwell’s direction was a direction under s 46R.

[146] I also accept Ms Cobcroft’s submission that Judge Malosi’s decision did not operate so as to discharge Judge Pidwell’s direction. It remained in force. However, it would have been preferable for the learned Family Court Judge to have specifically addressed Judge Pidwell’s direction and to make an order as to place of residence to avoid any possible room for confusion.

Ms Harding’s conduct in relocating to Edgecumbe with Rose was a breach of that direction.

[148] The next question that arises is whether the relocation was without Mr Baker’s consent. Mr Baker’s position is that, by his response to Ms Harding’s counsel’s letter of 7 March 2018,⁴⁸he made it absolutely plain that he did not consent. He was not required to respond when asked for his reasons for refusing to consent. Ms Cobcroft submits that in those circumstances, Ms Harding’s conduct was a continuation of her failure to consult with Mr Baker over guardianship issues and showed a disregard for his role in Rose’s welfare. Ms Cobcroft submits that Ms Harding’s conduct is in stark contrast to the assurances she gave to the Family Court Judge that she would consult with Mr Baker over guardianship issues. Ms Cobcroft says this conduct is highly relevant to the Court’s consideration of a number of issues, including s 5(c) of the Act.

[149] On the other hand, Mrs Fairbrother submits that a much more nuanced analysis is required. She says that Ms Harding signalled her intention to move even before the Family Court hearing before Judge Malosi. She kept Mr Baker informed when a suitable position for Mr Freeman looked “promising” and made clear her intention to move by the formal letter of 7 March 2018 when Mr Freeman’s position as a farm manager in Edgecumbe had been confirmed.

[150] Mrs Fairbrother continues that although Mr Baker stated he did not agree to Rose moving from the Napier area, he did not provide his full reasons for opposing the move when requested, and in a previous communication had said he “would think about it”.

[151] Further, the issue of Ms Harding’s intention to live with Mr Freeman in a committed relationship was the subject of cross-examination of Mr Baker during the Family Court hearing. From his evidence, Ms Harding believed that Mr Baker approved of the proposal that she and Mr Freeman would soon live together. Not only that, Ms Harding believed that Mr Baker approved of a move which would result in Rose living closer to the Auckland area, but opposed any move which would take Rose

further away from Auckland, including a move to where Mr Freeman was then living and working, a distance of around one hour’s drive from Napier, Hastings.

[152] Ms Harding accordingly did not move in with Mr Freeman at his then residence, but they looked for a place where Mr Freeman could work and live, and where they could live together, closer to Auckland.

[153] There is some substance to Ms Harding’s position that, in the course of the Family Court hearing, Mr Baker had expressed his approval to Ms Harding moving in with Mr Freeman in a place closer to Auckland. There is the following in the cross- examination of Mr Baker:

Q. Now, you know that if a decision is made that [Rose] remains with her mother, [Ms Harding] has signalled that one day she and [David] would like to formalise their relationship and live together properly.

Q. Do you anticipate that that would be a good thing, that would be a natural thing to happen and –

A. 100%. I’m glad that she’s found, I haven’t met him so I can’t comment on him, I’m glad she’s happy, if she’s happy with [David], that’s fantastic, honestly, I’m happy for her.

A. I think since everything’s gone down, [Ms Harding] doesn’t give [Deidre] the opportunity to understand [Deidre] as well and I know because of the text and that, but you put that stuff aside for the benefit of [Rose], so if [Ms Harding’s] happy with [David], that’s fantastic. [Rose’s] happy because Mum’s happy she’s with [David], perfect.

Q. And [Ms Harding] has suggested that she would agree to promise not to move any further away than where [David] lives and works now which is about just over an hour south of where [Ms Harding’s] currently living. Do you think you could accommodate that if that were to transpire?

Q. Practically speaking, would it really make any difference to what the arrangements are now?

Q. But, practically speaking, if she was an hour closer would you agree to her moving to Taupō for example?

A. I’d look at it. I’d look at it and see what kind of arrangements there are. I mean, if they’re happy. But, from my eyes I still don’t see [Rose] enough regularly. Hamilton would be a lot better because then it means that I get my every second weekend back. Because it’s only, I drive there now, for diggers sometimes, it’d take me 58 minutes. Taupō’s three and a half hours.

Q. And in terms of where they are living or [Rose] is living at the moment, you wouldn’t consent to any move further away from Auckland?

Q. But you would consider consenting to a move closer to Auckland if that happened?

[154] Despite that evidence, when the time came, Mr Baker did not consent. It was open to him to adopt that position. He is one of Rose’s guardians. Section 16(5) of the Act provides:

(5) However, in exercising (or continuing to exercise) the duties, powers, rights, and responsibilities of a guardian in relation to a child, a guardian of the child must act jointly (in particular, by consulting wherever practicable with the aim of securing agreement) with any other guardians of the child.

[155] Ms Harding should not have relocated to Edgecumbe with Rose in the absence of Mr Baker’s consent.

[156] What then is the Court to make of her conduct in relocating contrary to the terms of the Court order and without Mr Baker’s consent? There is a helpful discussion by Courtney J in Thorpe v Barrett, where the Court discusses the position where one parent has already relocated (but in that case without the children).⁴⁹To that extent, the situation in that case was different to the position before this Court, as not only has Ms Harding moved, she has actually taken Rose with her. But the principle emerging is applicable here:

[24] I note that issues similar to those arising in this case were considered by Koś J in Millett v Clyde. The applicant had already moved to Auckland to live with her new partner and sought an order that her two sons be permitted to relocate from Wellington, where they were living with their father, to live with her. Dealing with a submission that it would be contrary to the Act to allow a relocation decision to be determined by the fait accompli of one parent relocating without the children, Koś J said that:

It may be that this approach encourages relocation, or the presentation of a fait accompli transfer on the part of one parent. If so (and I express no view), it is a policy judgment that Parliament has made. The relocating parent will still usually face something of a minefield in traversing the s 5 principles. In my view it is better to focus on s 5, the welfare of the children, and not allow ourselves to be distracted by inquiring into the adequacy or otherwise of the mother’s rationale for her relocation. Her location is simply one of the circumstances that we must deal with under ss 4 to 5.

[25] As I have noted, there is no distinction in CoCA between parents who seek permission to move and those who seek to vary parenting orders once they have moved. I agree with Koś J that both cases require the same assessment of which location will be in the best interests of the child or children. Further, an inquiry into the reasonableness of the relocating parent’s decision is limited by s 4(2)(b) which provides that:

Any person considering the welfare and best interests of a child in his or her particular circumstances – ...

may take into account the conduct of the person who is seeking to have a role in the upbringing of the child to the extent that that conduct is relevant to the child’s welfare and best interests.

[157] The question I ask then is whether Ms Harding’s conduct is predictive of the way she will behave in future, in particular in relation to a s 5(c) assessment.

[158] In relation to Judge Malosi’s decision, I accept that there was room for some confusion over whether Judge Pidwell’s direction still applied with no final order having been made by Judge Malosi. It was put to Ms Harding in cross-examination that she knew that there was an order of the Family Court that Rose had to stay in Napier. She said, “once the ruling had been made by Judge Malosi I thought that sort of overruled the earlier decision”. She said she did not really understand that the earlier decision still stood.

[159] Nevertheless, it is clear in my view, from a reading of Judge Malosi’s decision as a whole, that it was predicated on Ms Harding and Rose continuing to live in the Napier, Hastings area. The Judge said:

[54] At the time of the hearing, [Rose] had been living in Napier for just shy of 2 years, a significant proportion of her young life ...

[55] Ultimately, I have not been persuaded it is in [Rose’s] welfare and best interests for her to be relocated back to Auckland. It follows then that she is to remain in the day-to-day care of [Ms Harding] in Napier, and continue to have contact with [Mr Baker] although I would hope going forward some of that contact might occur in Napier.

[160] Further, the parenting order granting Mr Baker contact contains a condition which refers to the cost of airfares between Napier and Auckland, and a reference to contact on long weekends, one of which was to incorporate the public holiday on Hawke’s Bay Anniversary Day.

[161] In terms of Mr Baker’s lack of consent to the move, I accept Mrs Fairbrother’s submission that having regard to his evidence in the Family Court, the question of consent was somewhat nuanced. But, in the end, Mr Baker made his position clear. He did not consent.

[162] Under cross-examination in this Court, Ms Harding acknowledged that she should have got Mr Baker’s consent before moving.

[163] I need to make an assessment as to whether Ms Harding’s conduct in relocating to Edgecumbe is predictive of the way in which she will behave in the future, namely making, as Ms Cobcroft submits, unilateral decisions on guardianship matters. In my view, this is finely balanced, but having had the benefit of observing Ms Harding give evidence, and taking into account all of the evidence relating to her decision to relocate, I do not consider that Ms Harding will, in future, make guardianship decisions without involving Mr Baker.

[164] In making this finding, the Court is not intending to send a message that a parent may act in breach of a Court direction and/or act without the consent of the other parent on guardianship matters, and not necessarily expect consequences. My finding is limited to the particular circumstances of this case and an examination of the conduct, to the extent it is relevant, to Rose’s welfare and best interests.

[165] That is not the end of the matter, however. I need to weigh all other relevant matters, including those under s 5 to determine whether Rose should continue to live with her mother in Edgecumbe or whether she should be further relocated, as Mr Baker seeks, to be in his day-to-day care in Auckland.

[166] Although it is said that the Court should not be distracted by inquiring into the adequacy of a parent’s rationale for relocating,⁵⁰I mention the background because it goes some way to respond to Ms Cobcroft’s criticism that it was an adult-focused and not a child-focused decision to move.

[167] Ms Harding has been in a relationship with Mr Freeman for at least two years. Not surprisingly, the two of them wished to live together. There is no issue as to

Mr Freeman’s character. He filed an affidavit, sworn 14 August 2018, in this Court and was not cross-examined on it. His background is that he began his farming career in 2008 and worked as a farm assistant for a couple of seasons. He says that

_{Ms Harding and Rose are a part of his life, and have stayed with him on
the weekends}

and school holidays for at least the last two years. On his days off, he would often stay with Ms Harding in Napier.

[168] Mr Freeman said that Ms Harding told him that Mr Baker was very clear that he did not agree to Rose moving further away from Auckland and that is why they looked for a position on a farm closer to Auckland after they had made the decision to live together. Mr Freeman obtained a job as a sole manager of a dairy farm in the Edgecumbe area. There was a house on the farm that goes with the job.

[169] Rose has now been in her new school since the end of May 2018. Mr Freeman deposes that he believes that the move has had a positive effect on Rose now that the three of them are living together as a family. He says he has noticed that Rose is a lot more settled in every way, especially in her school work. He says she is improving in leaps and bounds, and he has noticed that she has made many new friends. He says he attended Rose’s school parent/teacher interview with Ms Harding and was very proud to hear of her improving in her reading. He says he has noticed this himself when Rose reads to him at night while Ms Harding is cooking dinner.

[170] For her part, Ms Harding deposes that she believes that the move to Edgecumbe has been very good for Rose. She says that Rose has benefited from the fact that she is now living together with Mr Freeman and so she does not have the amount of travelling that they used to have to visit Mr Freeman when they were in Napier. She also says that she has settled well into her new school.

[171] Importantly, the assessments made by Ms Harding and Mr Freeman are supported by a report from Rose’s class teacher. The report is undated but appears to be written in response to a letter from Mrs Fairbrother to the school asking for information about how Rose has settled into the school. The report appears to be annexed to an email from the school dated 9 August 2018. The class teacher says that:

[Rose] is currently on the Reading Recovery Programme which provides a ½ lesson daily in Reading and Writing. She is making good progress and has moved several levels in reading.

[172] This is also consistent with the report from Ms Palinich who met with Rose in her office in Auckland. The date of the meeting is not recorded but it is clear it is subsequent to Ms Palinich’s appointment in the proceedings in this Court, in June

2. It had been approximately a year since I had last seen [Rose]. At interview, [Rose] presented somewhat more mature in demeanour and appeared less distracted than the last time we met. I asked [Rose] how she felt about moving from Napier to Edgecumbe and she replied “happy”. I asked her if she missed anything about Napier and she replied “No” and that “It was fun” living in Edgecumbe. I asked her if she missed anything about her former school ... and she replied that she did not and that she liked her current school “better”.

[174] Under cross-examination, Mr Baker agreed that there had not been changes in the amount of contact that he had had with Rose as a consequence of the move to Edgecumbe, but he would like to see Rose more.

[175] I return to an assessment of the s 5 factors to the extent that they are relevant and to the extent I have not already addressed them.

[176] There is nothing arising out of the move to Edgecumbe that needs to be addressed in relation to this principle.

Section 5(b) – a child’s care, development, and upbringing should be primarily the responsibility of his or her parents and guardians

[177] There is similarly nothing that needs to be addressed. The move to Edgecumbe has not changed any relevant matters.

Section 5(c) – the need for ongoing consultation and co-operation between parents

[178] I have addressed this principle already in terms of Ms Harding relocating in breach of a Court direction and without consent.

[179] I add that both parties need to work on consulting and co-operating with each other. There is still fault on both sides. Both Mr Baker and Ms Harding acknowledge this. The communication counselling ordered by Judge Malosi is still in its early days. It is to be hoped that the further counselling will assist each of them.

[180] Although this principle gives statutory recognition to a principle that has been influential in making decisions about the care of children, there is no legal presumption in favour of retaining the status quo.⁵¹

[181] With that warning in mind and taking care not to elevate the status quo into a dominant feature,⁵²I note that Rose has always been in the day-to-day care of her mother. That has not changed with the move to Edgecumbe.

[182] Rose’s relationship with her maternal grandmother, who lives in the Hawke’s Bay area, has continued since the move to Edgecumbe. Ms Harding said that her mother had visited three times since the move to Edgecumbe and that, further, she telephones most mornings and talks to Rose a lot.

[183] It is also evident that the strong relationships Rose has with her stepmother and step-sisters have been maintained. That has not changed since the move to Edgecumbe. Rose considers them as family and she looks forward to seeing them whenever she goes to Auckland. I accept that Rose’s relationships with her wider paternal family are also fostered by Ms Harding.

Section 5(e) – relationship with both parents and with whānau or family group to be preserved and strengthened

[184] The move to Edgecumbe has caused little change in this regard. The current arrangement still provides the opportunity for Rose to have contact with all the important people in her life. She is now living further away from her maternal grandmother, but contact has been maintained as referred to in [182] above. Additionally, Ms Harding has made contact with a cousin, a school teacher, who lives in the Edgecumbe area, and who assisted her with advice regarding school options for Rose. The cousin has a daughter who is around Rose’s age.

Section 5(f) – child’s identity – including culture, language, and religious denomination and practice to be preserved and strengthened

[185] The opportunity for Rose to learn her culture and whakapapa upon moving to Hawke’s Bay has continued with the move to Edgecumbe. The school report obtained by Ms Palinich recorded effort as “very good” in relation to te reo Māori. The report also states that Rose says a karakia and sings the National Anthem in Te Reo and English confidently, and she is learning to respond to questions in Te Reo using key words and phrases.

[186] There is no evidence in relation to any such programme at the school Mr Baker proposes for Rose in Karaka.

3. I asked [Rose] about her mother’s partner [David] and she said that he was “nice” and that he “takes me to work to go get the cows” and that “he works everyday”. She told me that she calls him [David] as he is “not married yet”. I asked her if she saw her Nan often and she replied “a little bit”. [Rose] told me that she was “happy”.

4. I asked [Rose] which parent she wanted to live with and she responded “both”. She went onto say that she wanted “Mum and Dad to be together again”. When I explained that her parents were not going to live together, she still responded that she wished to live with both her parents. I asked [Rose] if her Dad came to see her and she told me that he had come once for her assembly. She said that over the last school holidays, she was with her Dad a bit longer being “11 sleeps”.

5. [Rose] told me that the best things she liked about being in Auckland were her horse, ... and spending time with her sisters. In Edgecumbe, she was enjoying her new school and spending time with her new friend ... and helping [David] at work.

7. I asked [Rose] about how she felt about the frequent flying. She proudly stated; “I’m used to it”. We talked a little bit more about it and she had no problem to make more plane trips if she needed to.

9. [Rose] presents as a very well-adjusted child. It is clear that she has very positive relationships with both her parents, their respective partners, her sisters and extended family. She comfortably moves between the two households in different towns and has expressed no concerns or worries about [David] now living with her and her mother. What is also clear is that [Rose] loves both her parents and does not want to have to make a decision as to who she should live with.

[188] If Rose were to be relocated to Auckland, there is no doubt she would be surrounded by her family. This includes her father, stepmother and step-siblings. She would also be close to her paternal grandparents, her paternal aunt who grazes her pony, her cousins and her uncle.

[189] Although Mr and Mrs Baker and Mrs Baker’s children have moved recently to a new rental property, it is still within the same general area as their previous home. They have taken a lease on the new property for one year. Mr Baker is confident in his ability to provide for Rose financially, notwithstanding recent financial difficulties in his business with two particular companies owing his business a relatively large amount of money.

[190] On the other hand, in Edgecumbe, there are fewer members of Rose’s wider family.

[191] However, the evidence is that despite the issues between the adults which continue, Rose’s circumstances, which are known, work well for her. The outcome for Rose, if her care were to change, is unknown. I say that even accepting that Mr and

Mrs Baker would provide a loving family environment for Rose. Additionally, a change in the care arrangements would also mean a new school and further disruption.

[192] Further, a change in the day-to-day care environment is likely to have an adverse impact on Ms Harding and a consequential effect on Rose.

[193] I note Rose’s views as recorded above, namely that she does not want to have to make a decision as to whom she would live with.

[194] The status quo is working well for Rose. I consider therefore it would be in

[196] All of the issues relevant to the new application have been traversed in the context of the fresh evidence on appeal.

[197] Having found against Mr Baker on the appeal, the new application is also dismissed.

[198] It is necessary to make some adjustment to the orders made by Judge Malosi so as to refer to Edgecumbe (and Whakatane regarding flights) as opposed to Napier. I will also discharge the direction of Judge Pidwell of 24 January 2017 and in its place impose a similar order referring to Edgecumbe as opposed to Napier, Hastings.

f. On [Rose’s] birthday as agreed, noting that if she is in ~~Napier~~ Edgecumbe and [Mr Baker] is not, that will be limited to phone, Skype or Facetime contact;

g. In ~~Napier~~ Edgecumbe if [Mr Baker] is in the area, or in Auckland, if [Rose] is there for any reason, at such times as agreed.

~~Napier~~ Whakatane to Auckland, and Mr Baker shall meet the cost of [Rose’s] travel from Auckland to ~~Napier~~ Whakatane.

[201] The direction made by Judge Pidwell on 24 January 2017 is discharged. I order that Rose is to remain living in the Edgecumbe area until further order of a Court.

[202] I note the provision in s 127 of the Act that enables a party to proceedings in this Court in which an order has been made about the guardianship of a child, or about the role of providing day-to-day care for a child, to apply to the Registrar of the Court to have a copy of the order filed in the Family Court.

[204] Mrs Fairbrother advised the Court that Ms Harding had been legally-aided throughout these proceedings and had filed an application in relation to the proceedings before the High Court. At the time of the hearing, a decision had yet to be made on the application, as Ms Harding was required to file some further information.

[205] I direct that Mrs Fairbrother advise the Court on the outcome of the application for legal aid as soon as a decision is available. In the event that a decision is delayed, Mrs Fairbrother is to keep the Court advised on the anticipated progress of the application, if that information is available to her.

[206] I will not make any timetable decisions as to the filing of submissions until the legal-aid position for Ms Harding is known. I do, however, indicate at this point my view that the parties should attempt to reach at least some agreement over the question of costs. If agreement cannot be reached, I will give Mrs Fairbrother leave to supplement the submissions already included in her written submissions for the appeal with Ms Cobcroft having the opportunity to reply.

[207] However, that all awaits the advice to the Court on the legal-aid application. I

High Court of New Zealand Decisions

Baker v Harding [2018] NZHC 2885 (7 November 2018)