|
|
Home
| Databases
| WorldLII
| Search
| Feedback
High Court of New Zealand Decisions |
Last Updated: 7 December 2018
NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND
11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE https://www.justice.govt.nz/family/about/restriction-on-publishing- judgments/
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2018-404-001514 [2018] NZHC 3027
|
UNDER THE
|
Care of Children Act 2004
|
|
IN THE MATTER
|
of an appeal against the decision of the
Family Court at Auckland dated 19 June
2018
|
|
BETWEEN
|
K Appellant
|
|
AND
|
P Respondent
|
|
Hearing:
|
14 November 2018
|
|
Appearances:
|
S R Jefferson QC and E M Gibbs for Appellant
A E Ashmore and N J Fairley for Respondent
M N Tolich for Child
|
|
Judgment:
|
21 November 2018
|
JUDGMENT OF WYLIE J
This judgment was delivered by Justice Wylie
On 21 November 2018 at 1.00pm Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar
Solicitors/counsel:
Date:..............................
Richard Keam Law/E Gibbs/S R Jefferson QC, Auckland
A Ashmore, Auckland
Corban Revell, Waitakere City
K v P [2018] NZHC 3027 [21 November 2018]
Introduction
[1] The appellant, K, appeals a parenting order made by Judge Manuel in
the Family Court at Auckland on 19 June 2018.1 The judgment relates
to the schooling and day-to-day care of K’s and the respondent, P’s
daughter, Is.
[2] Relevantly, Judge Manuel made orders as follows:
(a) a guardianship order directing that Is attend a primary school in
the
Auckland suburb of X; and
(b) a parenting order:
(i) that Is’ care is shared between K and P on various days over a
three-weekly cycle;
(ii) setting out the terms of Is’ holiday care; and
(iii) imposing conditions in relation to Is’ travel
overseas.
[3] The guardianship order, made under s 46R of the Care of Children
Act 2004 (the Act), is not challenged on the appeal. Rather,
aspects of the
parenting order are challenged.
Factual background
[4] K and P are of Indian ethnicity, and both were born and raised in
the United Kingdom. They emigrated to New Zealand in the
early 2000’s.
They both have family overseas.
[5] K and P commenced their relationship in 1999/2000. It was a same
sex relationship. Both are females and Is was conceived
following a sperm
donation from
1 [P] v [K] [2018] NZFC 4508. The names of the parties and other persons/places involved have been anonymised to protect the interests of the child. Similarly, the intitulement of the Family Court decision has been anonymised.
a male – H. P is Is’ birth mother. Is was born in August 2013
and she is now five years old. Initially, P was Is’
primary
caregiver.
[6] In September 2014, when Is was 13 months old, K and P’s
14-year relationship ended and they separated. Is remained
in P’s care in
the family home in X and K moved out. K, however, had regular contact with Is,
and the parties agreed that
Is should remain at a day care centre in
X.
[7] P subsequently moved from the former family home. She has had two
homes since but she has remained in the same suburb –
X. She now owns her
own home in that suburb. She is self-employed and works from home.
[8] In October 2014, K commenced a relationship with another female, A.
A and her ex-partner are the parents of two children,
a boy, B, and a girl, L.
B is nine years old and L is six years old. A shares the care of B and L with
her former partner. A and
her former partner have agreed a four-weekly cycle of
shared care, and B and L both spend part of their time living with K and their
mother, A.
[9] In September 2015, when Is was two years old, a parenting order was
made by consent. It provided for an interim two-day/two-day/two-day
shared
care arrangement. This order was varied to a two-day/two-day/three-day shared
care arrangement in March 2016. The effect
of the order was that Is was in
either K’s or P’s care for two days, then in the other
parent’s care for two days,
then in the first parent’s care for
three days, on an ongoing basis.
[10] At this stage, K was residing with A in another suburb in Auckland,
Y, and P remained living in the suburb of X. K was responsible
for transporting
Is between X and Y. When Is was in the care of K, B and L were often present.
The evidence is that Is, B and L all
get on well together, and that Is regards B
and L as her brother and sister respectively. Is and L are particularly
close.
[11] In December 2015, K and A moved into another property in yet
another
Auckland suburb – Z. K and A’s new home in Z is some 22 kilometres from P’s home
in X. It can be a lengthy journey between the two houses, particularly at
peak traffic times.
[12] There was a dispute between K and P regarding holiday arrangements
for Is, and following the appointment of a lawyer for
Is, an amended parenting
order was made by consent in September 2016. It set out detailed holiday
arrangements and provided for
matters such as overseas travel. Relevantly, the
order allowed one parent, with the consent of the other, which was not to be
unreasonably
withheld, to take Is on an overseas holiday for a period of up to
21 days. As a result, Is has travelled extensively, notwithstanding
her young
age.
[13] In January 2017, P gave birth to a second child, Ay, who
is now aged approximately 20 months. The male –
H – was again the
sperm donor. As a result, Is and Ay are full biological siblings. Is and Ay
attended the same day care facility
in NC before Is went to primary school, and
again the evidence is that Is and Ay get on well and enjoy each other’s
company.
It is also clear from the evidence that P and Is see H, and the two
children that H has, on a reasonably regular, albeit infrequent,
basis. Is is
aware of the role that H had in helping P “make her”; she has
recently started referring to H as her father;
she is aware that H also helped P
make Ay.
[14] In August 2015, following an unsuccessful family dispute
resolution mediation, both parties filed applications with
the Family Court, to
determine which primary school Is should attend when she turned five years of
age. K wanted Is to go to a primary
school in Z; P wanted Is to go to a primary
school in X.
[15] In September 2017, K unilaterally enrolled Is in an early childhood
learning centre in or near the suburb of Z. An interim
order was made that Is
was to remain in the day care facility in X. K then applied, without notice,
for an order that Is should
attend the early childhood learning centre in or
near Z on days when she was in K’s care. Further:
(a) K filed an application seeking to vary the September 2016 parenting order on the basis that the arrangement then in place – two-day/two- day/three-day shared care – would not be suitable long term once Is
started primary school, due to the travel required to go between the suburbs
of X and Z. K was seeking the day-to-day care of Is.
She proposed that Is
should have contact with P every second weekend Friday to Sunday and every
Wednesday night.
(b) P filed a defence to K’s application seeking to vary the
parenting arrangements. Her preferred position was the
continuation of the
existing shared care regime. In the alternative, she suggested that, if Is were
to be primarily in her care,
K should have contact with Is each second weekend
from Friday after school until Monday at the start of school, and each Wednesday
after school, together with half of all school holidays.
[16] The parties were unable to reach agreement, and the matter proceeded
to a hearing before Judge Manuel on 1 June 2018. K,
P and A each gave evidence
and was cross-examined. Counsel appeared on behalf of Is. Judge Manuel
delivered an oral judgment on
19 June 2018.
[17] The new parenting orders took effect from 31 August 2018 and, in
September
2018, Is started primary school in the suburb of X.
Family Court decision
[18] Judge Manuel started her decision by recording that Is was about to
turn five and to start school.2 She noted that the two questions
she had to decide were, “where should [Is] go to school” and
“should the arrangements
for [Is’] care change once she starts
school”.3
[19] The Judge then recorded the relevant factual background – in
part as set out above. She noted the arguments advanced
by both parties and
identified the key statutory provisions involved. Inter alia, she referred to ss
4 and 5 of the Act and noted
that the first and paramount consideration was the
welfare and best interests of Is.4
2 [P] v [K], above n 1, at [1].
3 At [1].
4 At [9].
[20] The Judge considered that both of the proposals put forward by the
parties were good ones, and noted that it was clear that
Is was much loved by
both of her parents and their families.5 She also recorded that the
decision she was required to make was finely balanced.6
[21] Judge Manuel noted that the parties put some stress on biological
connections as opposed to psychological connections, but
recorded that she did
not have evidence permitting her to “rank” Is’ connections
with her biological sibling, Ay,
and her non- biological siblings, B and L, or
with other family members.7 The Judge accepted, for the purposes of
her decision, that all siblings and other family members were very important to
and loved
by Is.8
[22] The Judge held that Is should go to a primary school in the suburb of X, and that as a result, her parenting arrangements had to change because they were not sustainable.9 The Judge advanced three reasons for these decisions – first, if Is were to go to school in the suburb of X, there would be continuity and ongoing connection for her with the local community.10 Secondly, P is available for Is, because she lives close to the primary school.11 No after school care arrangements would be necessary, and if Is is unwell, P will be available to take care of her. The Judge considered that it would be unfair for Is if the September 2016 parenting arrangements were to continue once she started school, because of the travel times and changes involved.12
Thirdly, “from the description which each mother gave of the
other’s parenting, their styles of parenting may be better
suited to the
arrangement which I am going to order”.13
[23] Judge Manuel then, without further explanation, put in place new care
arrangements. She directed that:14
5 At [11].
6 At [11].
7 At [11].
8 At [11].
9 At [13].
10 At [14].
11 At [14].
12 At [15].
13 At [16].
14 At [18]-[31].
(a) During school terms, there is to be a three-week cycle. On weeks
one and two, Is is to be in K’s care from after
school on Friday to 4.30
pm on Sunday, and in week three she is to be in K’s care from Wednesday
after school until her return
to school on Friday morning. At other times during
the three-week cycle, Is is to be in the care of P.
(b) During school term holidays, Is’ care is to be shared equally
between K and P on a week-about basis. The Judge put
in place an alternating
arrangement as to who is to have Is in the first week of each school holiday.
She directed that the mid
holiday changeover is to take place at 4.30 pm in the
mid-point of each school term holiday, and that at the end of each holiday,
the
three-week cycle is to continue where it had left off.
(c) During Christmas holidays, Is’ care is to be divided equally
between K and P on a week-about basis. Again, she put
in place alternating
provisions as to who is to have Is for the first week of each Christmas holiday
period.
(d) During Easter, the three-week cycle is to continue, and over long
weekends, the provisions put in place in the September
2016 parenting order are
to continue. She also put in place arrangements for birthdays, for
Mother’s Day, and for Diwali.
(e) Regarding overseas trips, unless otherwise agreed, Is is not to be
taken out of New Zealand for more than seven days at
a time, and otherwise the
relevant provisions in the September 2016 parenting order are to continue in
force.
(f) Other relevant provisions in the September 2016 parenting order are also to continue, including in relation to other holidays and changeovers. Communication between K and P is to be by text, email or telephone.
(g) The parties are to agree on the extra-curricular activities which
Is is to participate in, and the parties are to support
her participation and
attendance in those activities.
Submissions
[24] For K, it was submitted that Judge Manuel erred by giving
insufficient consideration to the principles set out in s 5 of the
Act. It was
noted that the effect of Judge Manuel’s orders is that Is will spend less
time with B and L. It was submitted
that this is not in Is’ welfare and
best interests, and that Judge Manuel failed to undertake an individualised
assessment
of Is’ particular circumstances having regard to the s 5
principles, most particularly as they relate to Is’ relationships
with her
siblings and overseas family members. It was argued that Judge Manuel failed to
identify or analyse the effects of the
parenting orders she imposed on Is’
relationships with her siblings and B and L in particular.
[25] For P, it was submitted that the various orders made by Judge Manuel
were part of the one overall parenting package. It was
argued that the Judge had
to consider all of the various factors identified in s 5, and that except for
the mandatory consideration
required to be given to the factor set out in s
5(a), no ranking applies between the other factors identified in the section. It
was accepted that the relationship between Is and her two family groups is
important, but it was argued that it is equally important
that Is have stability
and continuity in her care, development and upbringing. It was similarly
accepted that Is has a close relationship
with A’s children, B and L, but
it was pointed out that Is also has a close relationship with her biological
brother, Ay.
It was acknowledged that Is’ relationships both with B and
L, and with Ay, are important, and it was submitted that Judge Manuel’s
orders have to be approached on the basis that each set of relationships are of
equal importance to Is. It was submitted that there
are various advantages in
Judge Manuel’s orders, including stability and continuity and,
importantly, reduced travel times
for Is.
The appeal
[26] There was no dispute between counsel as to the appropriate approach to be taken to the appeal.
[27] The appeal is brought pursuant to s 143 of the Act. It is a general appeal, pursuant to the operation of s 143(4) of the Act and s 127 of the District Court Act
2016. It proceeds by way of rehearing.
[28] The applicable principles are those discussed by the Supreme Court
in Austin, Nichols & Co Inc v Stichting Lodestar.15 The
position was there summarised by Elias CJ as follows:
[13] The procedure prescribed for [such] appeals ... does not provide
for full de novo rehearing of evidence. While “further
material” can
be brought forward ... it is clearly envisaged that there will be rehearing on
the record. That is usual ...
The appeal Court must be persuaded that the
decision is wrong, but in reaching that view no “deference” is
required beyond
the “customary” caution appropriate when seeing
the witnesses provides an advantage because credibility is important
...
...
[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 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.
(Citations omitted)
[29] The application of Austin, Nichols’ principles in the
context of an appeal dealing with a similar issue – relocation – to
that arising in the present
case was discussed by the Supreme Court in Kacem
v Bashir.16 The majority held as
follows:17
[31] The Court of Appeal discussed the application of the decision of
this Court in Austin Nichols & Co Inc v Stichting Lodestar to the
present kind of appeal. The Court correctly observed 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
15 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
16 Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1.
de novo assessment and consideration of how
it affects the correctness of the decision under appeal. The Court of Appeal was
right
to say that Courtney J had rather overstated the effect of Austin,
Nichols when she indicated she should approach the appeal to the High Court
“uninfluenced” by the reasoning of the Family Court.
The High Court
was required to reach its own conclusion, but this did not imply that it should
disregard the Family Court's decision.
What, if any, influence the Family
Court's reasoning should have was for the High Court's assessment.
[32] But, for present purposes, the important point arising from
Austin, Nichols is that those exercising general rights of appeal
are entitled to judgment in accordance with the opinion of the appellate
court, even where that opinion involves an assessment of fact and degree and
entails a value judgment. In this context a general
appeal is to be
distinguished from an appeal against a decision made in the exercise of a
discretion. In that kind of case the criteria
for a successful appeal are
stricter: (1) error of law or principle; (2) taking account of irrelevant
considerations; (3) failing
to take account of a relevant consideration; or (4)
the decision is plainly wrong. The distinction between a general appeal and an
appeal from a discretion is not altogether easy to describe in the abstract. But
the fact that the case involves factual evaluation
and a value judgment does not
of itself mean the decision is discretionary. In any event, as the Court of
Appeal correctly said,
the assessment of what was in the best interests of the
children in the present case did not involve an appeal from a discretionary
decision. The decision of the High Court was a matter of assessment and judgment
not discretion, and so was that of the Family Court.
(Citations omitted)
Analysis
[30] The key statutory provisions relevant to this appeal are ss 4 and 5 of
the Act. Relevantly, they provide as follows:
4 Child’s welfare and best interests to be
paramount
(1) The welfare and best interests of a child in his or her particular
circumstances must be the first and paramount consideration—
(a) in the administration and application of this Act, for example, in
proceedings under this Act; and
(b) in any other proceedings involving the guardianship of, or the role of
providing day-to-day care for, or contact with, a child.
...
5 Principles relating to child’s welfare and best
interests
The principles relating to a child’s welfare and best interests are that—
(a) a child’s safety must be protected and, in particular, a
child must be protected from all forms of violence (as defined
in section
3(2) to (5) of the Domestic Violence Act 1995) from all persons, including
members of the child’s family, family group, whānau,
hapū, and
iwi:
(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 that a child’s relationship with
his or her family group,
whānau, hapū, or iwi should be preserved and strengthened:
(f) a child’s identity (including, without limitation, his or
her culture, language, and religious denomination and practice)
should be
preserved and strengthened.
[31] It was common ground that the Court should undertake an
individualised welfare assessment, rather than impose a formulaic
approach, and
that the Court should consider each child in his or her particular
circumstances.18 It was also common ground that the Court should
consider and identify not only those s 5 principles that are relevant and must
be
taken into account, but also those principles that may be irrelevant, along
with any other relevant matters.19
[32] The Chief Justice in Kacem v Bashir highlighted the
significance of the s 5 principles to the welfare assessment as
follows:
[5] The s 5 principles are important legislative reminders to
decision- makers (parents, guardians, and courts) of the context
in which the
paramount consideration of the welfare and best interests of the particular
child must be considered. The principles
identified are not entirely distinct.
Some stress different aspects of themes to be found in other principles and in
the other provisions
of the Act. Within s 5 there are expressions of emphasis as
well as identification of matters to be considered.
18 Brown v Argyll [2006] NZFLR 705 (HC).
19 Kacem v Bashir, above n 16, at [19].
The Court confirmed that none of principles (b) to (f) should be read as
having presumptive precedence over other principles. The
objective in any
particular case is to determine what outcome best serves the welfare and
interests of the particular child in issue,
in his or her particular
circumstances.20
[33] In this case, Judge Manuel did not expressly undertake the exercise
discussed by the Supreme Court in Kacem v Bashir. She did not examine
each of the s 5 principles to see which were relevant, or discuss to what extent
each principle had to be
taken into account along with other relevant principles
or matters. The Judge’s reasoning is short and, in some respects,
enigmatic. In particular, I do not understand what she meant when she referred
to K’s and P’s respective parenting styles
and how they fitted with
the orders she made. Nor did the Judge articulate her reasoning for making the
particular shared care arrangements
she put in place. The Judge was departing
from the arrangements proposed by both K and P, and it is unfortunate that she
did not
say why she favoured her alternative approach.
[34] I am not, however, persuaded that the parenting arrangements Judge
Manuel put in place were made in error.
[35] In the present case, the principle set out in s 5(a) is not in issue. Notwithstanding a passing reference to this issue made by A, there are no concerns for Is’ safety with either K or P or in their respective family environments. Nor is principle
5(b) in issue. Both K and P are seen and treated by Is as her parents and guardians – she considers that she has two mothers – and both offer her a warm and loving family environment. Both are anxious to take responsibility for Is’ care, development and upbringing. Similarly, the principle set out in s 5(c) is not in issue. Although they have been unable to reach agreement on key issues, and notwithstanding that there appears to be some distrust between them, K and P have often been able to cooperate; they have, for example, agreed to consent orders; they have attended mediation, in an endeavour to reach agreement as to Is’ care, development and upbringing; there is no longer any dispute over which primary school Is should attend. The principles set out
in s 5(d) and (e) are engaged. K argues that because Judge
Manuel’s parenting order
20 At [8], [21], [23], [24], [28] and [47].
reduces the time that Is spends with B and L, Is’ relationship with
that family group is neither preserved nor strengthened.
P argues that the
Judge’s parenting arrangements promote continuity in Is’ care,
development and upbringing. The principle
set out in s 5(f) is, to an extent,
in issue, but the parties have largely reached agreement on this issue. It was
common ground
that overseas travel is important for Is, so that she can identify
with Indian culture and with K’s and P’s families
in the United
Kingdom.
[36] Pursuant to the Judge’s order, in the first week of each
three-week cycle, Is spends the period from after school on
Friday afternoon
through until 4.30 pm on Sunday afternoon with K and A. At this time, B and L
are not staying with K and A. On all
other occasions during that three-weekly
cycle, Is’ times with K overlap with times when B and L are staying with
their mother,
A, in the same household. In the following three-week cycle, in
week two, Is spends the same period – from Friday after school
until 4.30
pm on Sunday – with K and A, without B and L present, but at all other
times during that second three-week cycle,
B and L are present. This arises
because Is’ shared care arrangements are on a three-week cycle, whereas
B’s and L’s
shared care arrangements are on a four-week
cycle.
[37] I accept that Judge Manuel’s parenting order results in Is sharing less time with A’s children, B and L. Under the order, Is spends 12 nights with K out of 42 nights over two consecutive three-week cycles; on 8 or 10 of those days (depending on when the cycles start) B and L are present. That Is spends less time with B and L is unfortunate, but in my judgment, Judge Manuel’s parenting order does confer a distinct advantage. It gives Is some time alone with K. To my mind, this is important. P gave evidence that she thinks that it is part of her responsibility to support Is so that Is feels she can talk to her about B and L. It is equally part of K’s responsibility to make similar time available to Is. It may well be that there are matters which Is will want to discuss with K as she grows up, which she may be happier discussing with K when she is alone with her, without B and L present. Further, and in any event, A’s care arrangements for B and L are not immutable. They may change over time, and I do not consider that K’s care arrangements with Is should necessarily be irrevocably tied to A’s care arrangements with B and L.
[38] I agree with Mr Tolich, appearing as counsel on behalf of Is, that
there are other options available for Is to maintain her
close relationship with
B and L if she wishes to do so. A possible option is communication by way of
“Skype” or “Facetime”.
Both would permit Is to see and
talk to B and L in a relaxed setting.
[39] The care arrangements put in place by Judge Manuel provide for Is to
spend much of each school week with P. I agree with
the Judge that this is
appropriate, given that P is self-employed, works from home and lives relatively
close to the school which
both parties now accept is best for Is’ primary
schooling. I agree with the Judge that it is in Is’ welfare and best
interests if P is primarily responsible for Is during the school week. If Is is
unwell, or has to go home from school for some reason,
P will likely be
available for her.
[40] It must also be borne in mind that when Is is with P, she is with
her biological brother, Ay. This relationship must also
be preserved and
strengthened. This is not to say that Is’ relationship with Ay is
necessarily more important than her relationship
with B and L; rather, both
relationships should be preserved and strengthened, and in my view, the
Judge’s order respects both
family situations.
[41] I also consider it important that, through P, Is is meeting on
occasion with her biological father and his children. That
relationship is
likely to be important to Is, particularly as she grows up, and it should be
preserved and strengthened by the Judge’s
parenting order.
[42] There are other advantages in the Judge’s parenting order which are important. First, the order does provide for continuity in Is’ care, development and upbringing. It will ensure that she is in relatively close proximity to her primary school for much of the school week, in a suburb which she has been brought up in and is familiar with. Secondly, the order means that Is does not have to travel unduly across Auckland at peak times. Over each six-week period, there are 12 changeovers of care and 16 journeys across Auckland, 12 of which will occur during school days, at times when peak hour traffic is likely to be experienced. Under the alternative care regime proposed by K, over each six-week period there would be 18 changeovers and 18 journeys required, all on school days at times when congestion is likely. In my view,
K’s alternative is to be avoided. Reducing travel for a child of Is’ age is highly desirable, given the inevitable upheaval and disruption in transitioning from one home to the other. It is not in Is’ welfare and best interests to have to spend too much time in a car. She will be tired after a school day and over time she will want to attend after
school activities. The less travel a young child attending primary school is
required to put up with, the better.
[43] Mr Tolich did propose other care options – namely, that in
weeks one and two, Is is dropped at school by K on Monday
morning, rather than
returned to P on Sunday evenings. An alternative option suggested was that
there be contact every fortnight,
Friday after school until Monday morning, with
no contact on the Wednesday evening of the week that K is not seeing
Is.
[44] Neither of these options garnered any support from either K or
P.
[45] There is one obvious downside with the first proposal. It would
involve an early morning start on the Monday morning for
Is. K would have to
transport her from the suburb of X to the primary school in Z. This would
involve crossing Auckland when there
is likely to be relatively heavy traffic.
Is would be tired when she arrived at school. I do not consider that that
option is preferable
to that proposed by Judge Manuel.
[46] Finally, I note that if there were to be yet further changes by this
Court, there would be yet another altering of Is’
care arrangements. In
my judgment, yet further changes would be at odds with the principle set out in
s 5(d) of the Act.
[47] Accordingly, I uphold the Judge’s decision set out in
paragraph [23](a) above. In my judgment, the three-weekly cycle
shared care
arrangements put in place by the Judge are in Is’ best interests and
welfare, and they appropriately take account
of the relevant principles set out
in s 5 of the Act, namely principles (d) and (e), as they apply to Is’
particular circumstances.
[48] I now turn to the order made for school holidays – noted in [23](b) above.
[49] I agree with Mr Ashmore, appearing for P, that a simple week-about
arrangement over school holidays is a perfectly ordinary
condition. While the
Judge did not give reasons for this aspect of her parenting order, in my view,
the order was entirely appropriate.
A week-about arrangement allows Is to have
block time with each mother. It allows each mother to have time for a brief
vacation
with Is out of Auckland, and it is easy to predict and plan for. The
arrangement is effectively “future proofed”, and
it is one that can
continue until Is leaves the jurisdiction of the Family Court at age 16. It
avoids multiple changeovers and additional
travel time, and it should be simple
for Is to understand even at her present age.
[50] The suggestion made by K that the previous care regime –
two-day/two- day/three-day – should be reinstated over
school holidays
does not seem to me to be realistic or in Is’ welfare and best
interests.
[51] Similarly, the September 2016 parenting order arrangements which the
Judge directed should continue over Easter and long
weekends – see [23](d)
above – as well as the arrangements she put in place for birthdays, for
Mother’s Day and
for Diwali are, in my view, appropriate for the same
reasons.
[52] Regarding overseas trips, the September 2016 parenting order permitted each parent, with the consent of the other, to take Is out of the country for up to 21 days at a time. For some unexplained reason, Judge Manuel reduced that period to seven days
– see [23](e) above.
[53] The parties were able to agree that the period of 21 days should be reinstated, and I agree that this is sensible. It will mean that Is can readily be taken by either parent back to the United Kingdom or to India. Substituting 21 days for the seven days ordered by the Judge, means that Is can have a meaningful period overseas with each parent’s family. It accords with the s 5(f) principle. The holiday should be taken over the six-week Christmas school vacation, because this avoids Is missing school. There was some dispute between the parties as to whether or not the arrangement should alternate from one Christmas to the next. I am satisfied that it should. Allowing first one parent to take Is overseas over one Christmas period, and then allowing the
other parent to take Is overseas the following Christmas, will avoid argument
and the need to come back before the Court.
[54] Accordingly, the Judge’s parenting order is amended to allow
Is to be taken out of New Zealand on holiday with one
or other parent (with the
consent of the other – not to be unreasonably withheld), for no more than
21 days at a time (unless
otherwise agreed between the parties). The holiday is
to be taken during the six-week school vacation. Unless otherwise agreed,
Is
may be taken out of New Zealand by K for an overseas trip in the 2018/2019
Christmas school holidays.21 Is may be taken out of New Zealand on
an overseas trip by P in the 2019/2020 Christmas school holidays, and Is’
Christmas holiday
arrangements are to alternate between K and P
thereafter.
[55] All other provisions contained in clause 7 of the consent order made
on 23
September 2016 are to remain in place, except insofar as is altered by this
judgment.
[56] Except as noted in [53] above, the appeal is dismissed.
Costs
[57] P has been largely successful in resisting K’s appeal, and she
is entitled to her costs and reasonable disbursements.
[58] It is my preliminary view that costs should be fixed on a 2B basis.
If counsel agree, they should be able to fix costs and
disbursements without
further order from the Court. If for some reason there is disagreement, then I
direct as follows:
(a) any memorandum in support of costs and disbursements is to be filed
within 10 working days of the date of this judgment;
(b) any memorandum in reply is to be filed within a further 10 working days;
and
(c) memoranda are not to exceed five pages in
length.
I will then deal with the issue of costs on the
papers unless I require the assistance of
counsel.
Wylie J
NZLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.nzlii.org/nz/cases/NZHC/2018/3027.html