NOTE: PURSUANT TO S 169 OF THE FAMILY PROCEEDINGS ACT 1980, 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 NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CIV-2018-442-5 [2018] NZHC 2801

BETWEEN	B
Appellant	

AND	
T Respondent	

Hearing:	23 October 2018	

Appearances:	
S N van Bohemen for the Appellant
M J Duggan for the Respondent
W F Freeman as Lawyer for the Children	

Judgment:	
30 October 2018	

JUDGMENT OF CHURCHMAN J

This judgment was delivered by me on 30 October 2018 at 3:00 p.m. pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

……………………………………

B v T [2018] NZHC 2801 [30 October 2018]

Introduction

[1]       B  appeals  aspects  of  a  parenting  order  made  in  the  Family  Court  on

22 December 2017. B and the respondent T are the parents of twin nine-year-old boys, A and C.

[2]       The Family Court judgment dealt with a large number of issues. The appellant has not challenged the majority of the Court’s rulings on matters including:

(a)	care arrangements on birthdays;

(b)	overseas travel;

(c)	variation;

(d)	transport;

(e)	communication by email;

(f)	telephone contact;

(g)	counselling; and

(h)	the ruling on the children’s surnames.

[3]       The challenge is to the direction that the boys are in the care of the appellant during the school term on a fortnightly cycle from Thursdays at 3:00 pm until Tuesdays at 9:00 am.  There was also a related challenge to the ruling that the school term care and contact regime continues until Christmas Eve and resumes again on
23 January.

[4]       The relief sought by the appellant was an order for “equal shared care”.  By this was meant an equal number of nights being spent with each parent during term time and the school holidays on a rotating seven day cycle, and equal care during the Christmas holidays on a 14 day rotating cycle.

[5]       There was no dispute between the parties as to the issue that a shared parenting arrangement was appropriate and in the best interests of the boys, but the appellant’s position was that the Family Court Judge had erred as a matter of law in imposing a regime during school term time and at the start and finish of the Christmas school holidays that did not provide for exactly equal time with each parent.

[6]       The specific grounds advanced by the appellant in support of his claim that the only regime that complied with the principles set out in s 5 of the Care of Children Act
2004 (“the Act”) was one of precise equality were:

(a)       The  Family  Court  perpetuated  a  parenting  regime  which  did  not facilitate ongoing consultation and cooperation between the children’s parents.

(b)       The 22 December 2017 order disrupted the pre-existing continuity of care for the children.

(c)       The 22 December 2017 order failed to preserve and strengthen the children’s relationship with their father and in fact weakened that relationship.

(d)       The Family Court misstated the law as to the pre-requisites for an equal shared parenting regime.

(e)	The Family Court failed to take into account the decisions of the High

Court in L v A;1 L v A (No 2)2 and Shaw v Brown.3

[7]       Further legal errors were alleged in relation to what was said to be the failure of the Family Court “… to take into account the evidence of the s 133 report of
Ms Margaret Evans dated 29 May 2014 and that the Family Court failed to take into

account a memorandum of the lawyer for the children”. That memorandum, however,

1	L v A (2003) 23 FRNZ 583.
2	L v A (No 2) (2003) 23 FRNZ 602.
3	Shaw v Brown [2014] NZHC 2843.

had been removed by counsel for the children and replaced with another memorandum to which the Court did have regard.

Facts

[8]       The parties commenced a relationship in Christchurch in February 2008.  In April 2008,  the  appellant  moved  to  Takaka  in  Golden  Bay  to  pursue  a  work opportunity. The respondent moved to Takaka in January the following year.

[9]       The twins, who are the parties’ only children, are now aged nine, having been born on 13 October 2009. The parties separated in January 2012 and, since then, there has been a history of litigation between them in relation to the care of the children.

[10]     In February 2012, the respondent applied for a Parenting Order and for an order permitting her to relocate the children to Richmond.  A two day hearing was held in the Family Court in Nelson in August 2012 with the respondent’s application being dismissed.

[11]     This Family Court decision contained criticisms of both parents in relation to aspects of their decision-making regarding the care of the children and their communication, or lack of it, in relation to the children. The Court noted:4

… I accept the children will be primarily bonded or attached to their mother. She has been their primary caregiver before and after separation. She has done a good job of parenting them, and providing for their day-to-day physical, emotional, and development needs.

[12]     He also said:5

In my view, the father’s attachment to the children is less secure. He has not spent a great deal of time with them, and he does not have a great deal of experience in looking after young children. I accept he has attempted to upskill himself in this area and has attended a parenting programme.

[13]     The Court imposed a parenting regime designed to achieve:6

4	ALT v CFT-B [2012] NZFC 7186 at [107].
5	At [108].
6	At [142].

… both continuity in the children’s care arrangements, and the building and strengthening of their relationship with their father over that time recognising, at the same time, he has two businesses to run and his financial position is tenuous.

[14]     The Court imposed a consistent changeover day and time so that a structure and routine for the boys could be established.  The Judge felt that this was important in circumstances where the parties’ ability to communicate was poor.   The Court imposed a four-stage regime which saw the time that the children spent with the appellant increase as they met age milestones. The regime reached in the fourth stage saw the children spend substantial time with each parent although the percentage of time with the respondent was still greater than that spent with the appellant.

[15]     In February 2014, the appellant made an application to allow the children to attend kindergarten on the days when they were in his care and to start at a specified school when they turned five on 13 October 2014. The appellant simultaneously filed an application for an extension of time to have the children with him in March 2014 to allow them to travel to the North Island and back. The application for the variation to allow travel to the North Island was granted.

[16]     The application for directions as to kindergarten and school was opposed and the respondent filed an application that the children be permitted to relocate to a school outside of Golden Bay.

[17]     It was in relation to this application that the s 133 report was commissioned. Several years later, this report was to become an issue in the present proceedings.

[18]     The parties reached agreement about the kindergarten, but a three day fixture in relation to the school/relocation was set down. The respondent, however, withdrew her relocation application prior to the hearing.  Costs were awarded against her.  On
23 September 2014, a consent order was made that the children attend a school in

Golden Bay.

[19]     The parties attended Court ordered counselling in February 2015, but that was unsuccessful.

[20]     On 18 May 2016, the appellant filed an application to vary the Parenting Order that had been made on 14 September 2012.

[21]     On 15 June 2017, the respondent filed an application seeking to amend the children’s surname to incorporate her name.

[22]     On 30 November 2017, counsel for the children filed a third memorandum following an interview with the boys in October 2017.   That memorandum was subsequently  withdrawn  and  replaced  with  another  memorandum  also  dated
30 November 2017.   One sentence, three lines long, had been deleted from that memorandum by  counsel for  the children on  the  basis that  the opinion  he  had expressed was in the nature of evidence and, if the opinion remained in the memorandum, he was at risk of being summonsed to give evidence thereby compromising his role as counsel for the children. The only report seen by the Family Court Judge was the amended report.

Role of the Court on an appeal

[23]      The parties were agreed that on a general right of appeal, the principles set out in Austin, Nichols & Co Inc v Stichting Lodestar apply.7  If the appellant persuades the Court that the Family Court’s decision was wrong, the appellant will be entitled to a fresh assessment from the High Court. The Court on Appeal is obliged to come to its own conclusion, so the court is not obliged to defer to the lower Court’s assessment of the evidence but must take into account any advantage experienced by the Family Court in hearing and seeing the parties, particularly where there are credibility issues.

Technical errors of law

[24]     I will address the two claimed technical legal errors first before turning to what I perceive to be the fundamental thrust of the appeal which is that the Judge erred in law in not imposing a parenting regime that resulted in absolute equality, in terms of time spent by the boys with each parent.

[25]     It is alleged that the Family Court failed to take into account the evidence of the  s 133  report  of  Margaret  Evans.    It  is  therefore  necessary  to  consider  the circumstances in which the report was made, the matters it addressed, what weight was placed on it by the Family Court Judge and what the justification for that was.

[26]     The s 133 report was commissioned in 2014 and is dated 29 May 2014. It was commissioned in relation to the proceedings then before the Family Court, not the proceedings some three and a half years later which have led to this appeal.

[27]     At the time the report was submitted, the boys were still pre-schoolers.  The primary issues focused on in the report related to matters that were particular to the boys then current state of development.  These issues included toileting difficulties (constipation) being experienced by the boys, along with the reasons for it and potential strategies to resolve it; separation anxiety apparent on such occasions as when the boys attended playcentre and their mother was not immediately present; lower pro-social behaviour being exhibited by the boys than was the norm for similarly aged pre-schoolers; and the consequences of practices such as “co-sleeping” which the boys undertook at times when in the care of the respondent. The report is lengthy and detailed, and notes shortcomings in parenting skills on the part of both parents but, overall, could be summarised as identifying more shortcomings on the part of the respondent in relation to the particular issues set out above that were the focus of the report. A statement at p 10 of the report expressed the opinion that the respondent had a number of parenting practices that appeared to encourage dependent rather than independent behaviour on the part of the boys.

[28]     The respondent had expressed some concerns about aspects of the report.  In relation to the claim that the report appears to contain some hearsay content expressing the opinion of people other than the writer, the concern is understandable.

[29]     Although the report was lodged with the Court in May of 2014, because the

2014 proceedings were settled by agreement and there was no defended hearing, the views expressed in the report by the report writer were never tested by cross- examination or questioning from the Bench.

[30]     The respondent complained to the Court about the report and this complaint was addressed by Judge G F Ellis in a Minute dated 22 April 2015.8  The Minute noted that the proceedings in respect of which the report was obtained had been settled by way of consent orders made on 23 September 2014.

[31]     The   Minute  noted  that   the   complaint   by  the  respondent   was  dated

17 September 2014 and was therefore prior to the fixture which had been scheduled for October 2014 and the consent order of 23 September 2014.

[32]     Judge Ellis dismissed the complaint by saying:

It is not the function of a Report Writer to determine or offer opinion on disputed issues of fact. Where there are disputes on matters of fact, or opinion, it is for the Court to determine those matters after hearing, and testing, all the relevant evidence presented by the parties and/or the opinions of professionals who have been directed to provide reports. That is the purpose of the defended hearing.

Where, as in the present case, the parties agree to dispense with the hearing and inform the Court that they consent to the making of orders without any further testing of evidence or opinion, that must be the end to the matter.

[33]     Judge Ellis concluded his Minute by saying:

My determination of the complaint is therefore that the allegations against the Report Writer are not substantiated and no further action is to be taken on it by the Court.

[34]     The report remained on the Court file and was still there in December 2017 when the case under appeal proceeded. Neither party had requested that the report be updated and neither party had suggested to the Court that it should commission a s 133 report in relation to the issues then before the Court, which were substantially different to the matters that had been in issue in 2014, including an application by the respondent to change the surname of the boys.

[35]     Mr van Bohemen, counsel for the appellant, submitted that the s 133 report had been “relied upon by the appellant” in the current proceedings.  He referred to four extracts from two affidavits filed by the appellant.

[36]     In the first affidavit the relevant passages said:

Given the findings in the s 133 report I am no longer convinced that it is in the boys’ best interests to remain in the primary care of the respondent.

And

This is particularly applicable in our case due to the marked contrast between parenting styles as set out in the s 133 report.

[37]     The references to the report in the second affidavit said:

This situation is a specific example of what Ms Evans describes succinctly as
“[the respondent’s] need to control [the appellant].”

[The respondent] has been described as having a permissive parenting style by Ms Evans and I have been described as having an authoritative parenting style.

[38]	These brief references appear to be the full extent of any reliance placed by the appellant on the s 133 report in the 2017 hearing.

[39]	At the appellant’s insistence, a copy of a transcript of the discussion between counsel and the Judge prior to the December 2017 hearing was obtained.

[40]     This document records the appellant’s then counsel as having complained to the Court that the appellant did not have a copy of the respondent’s complaint that had led to the Minute from Judge Ellis.

[41]     The transcript records the Judge asking the appellant’s then counsel:

Are you wanting me to consider Ms Evans’ report in the course of coming to this decision?

And the response of, “Yes, it would be helpful if you read it”.9

[42]     The transcript also records the Judge as saying that he had not re-read the

2014 report deliberately and saying:

… I think the issues here can be determined on the evidence in the booklet of documents after hearing cross-examination and that’s what I propose to do.

9	Common bundle of documents for appeal vol 2, p 3.

[43]     The booklet of documents included the two affidavits of the appellant referred to above. The Judge went on to explain why he had adopted this view saying:10

The Report Writer’s not available for questioning.  It is simply a matter of Court record which the parties may have a view about but I mean, at the end of the day, if they have a view I don’t have the psychologist here to test that view against, so it’s a very limited weight, I would have thought.

[44]   Prior to this hearing, counsel for the respondent, Ms Duggan, filed a memorandum objecting to the Court reading the 2014 s 133 report but, when the matter was dealt with as a preliminary issue at the commencement of the hearing, counsel accepted that the issue was not one of admissibility of the report, but the weight that the Court might give to it.

[45]     Mr van Bohemen  notes that there is no reference in the Family Court’s judgment of 22 December 2017 to the s 133 report. That is perhaps unsurprising given the view expressed by the Judge in the pre-hearing exchanges that, given the absence of the report writer and the ability to cross-examine her on the opinions in the report, it had limited relevance.

[46]     Mr van Bohemen submits that there is no “use by” date for such reports. That is undoubtedly correct.  However, that does not mean a s 133 report obtained for one set of proceedings will automatically be relevant for other proceedings between the same parties occurring some years later.

[47]     The Court in Dvorak v Yamamoto noted that where there is a significant delay between the date upon which a report was prepared and a subsequent hearing, the Court will consider whether there is a need to update the report and this is likely to involve consideration of whether there has been any material change in the situation of the children or the parties or whether the views of the children changed in a significant way.11  The relevant ground of appeal in that case was whether or not a new s 133 report should have been obtained.  The Court noted that it was significant that

no party had made such a suggestion.12    In relation to whether such a report was required the Court also said:13

The statutory threshold in s 133(6)(a) requires the Court to be satisfied the information is essential for the proper disposition of the application and that the other factors in s 133(6) as to timeliness and the effect on the children are met.

[48]     In the present case, neither party had suggested that a new or updated s 133 report should be obtained.  The 2014 report was focused on issues that were largely particular to the applications then before the Court relating to pre-school aged children. The factual situation had changed substantially in the three and a half years since the report had been obtained and there was no evidence that the specific problems that the report focused on (toileting issues, separation anxiety and co- sleeping) were still issues in 2017.

[49]     It is understandable that, in the affidavit evidence filed by the applicant in relation to the 2017 proceedings, he might briefly refer to those aspects of the report
that he saw as favourable to him, but he clearly did not see the report as being so significant as to want to call the report writer to give evidence. It is also clear that the respondent disagreed with some of the content of the report, but understandable why she might not have wanted to have the report writer called to give evidence.

[50]     In the circumstances, it cannot be said that the Judge fell into error in adopting the approach of permitting the parties to refer to whatever aspects of the report they wanted to and to be cross-examined on those views but, in the absence of the report writer being a witness, not being prepared to attach weight to the report.

[51]     Having read the report carefully I am not persuaded that the Court would have received any significant assistance from the report that focused on a situation which was particular to the age and developmental needs of the boys at the time it was prepared but which was significantly different to both the factual situation which pertained some three and a half years later and to the issues that the Family Court needed to determine. The court did not make an error of law in relation to this report.

Lawyer for child

[52]     The appellant’s argument was that the memorandum of 30 November 2017 filed by counsel for the children was a “document in the proceedings” and therefore r
78 of the Family Court Rules 2002 applied and that it could only be removed and replaced by the Court of its own initiative or on an interlocutory application.  It is submitted that, “The replacement was unlawful”.

[53]     It was submitted that the consequence of the Court permitting counsel for the children to replace the memorandum was that:

… the Court was denied the observation of a lawyer who had been the children’s lawyer as to a why he [Mr Freeman] considered there was no support from either boy to the proposed shared care regime.

[54]   Ms Duggan submits that the Court could not have considered the first memorandum filed by counsel for the children because it was no longer on the Court file.  She submitted that r 78 of the Family Court Rules 2002 did not apply to a report from counsel for child as it was not a “document” because it was not filed by a party.

[55]     Counsel drew the Court’s attention to the Practice Note issued on 26 March

2015 by the then Principal Family Court Judge which gave as an example of a report from the lawyer for child, a letter sent to the Registrar of the Family Court.   She submitted that:

Clearly the rules do not apply to correspondence with the Court rather only to
“documents”.

[56]     Section 9B of the Family Court Act 1980, inserted by s 4 of the Family Court Amendment Act 2013, provides a detailed description of the role of lawyer for the child, saying:

(1)	The role of a lawyer who is appointed to represent a child or young person in proceedings is to—

(a)        act for the child or young person in the proceedings in a way that  the  lawyer  considers promotes the  welfare  and  best interests of the child or young person:

(b)        ensure that any views expressed by the child or young person to the lawyer on matters affecting the child or young person and relevant to the proceedings are communicated to the court:

(c)        assist the parties to reach agreement on the matters in dispute in the proceedings to the extent to which doing so is in the best interests of the child or young person:

(d)       provide advice to the child or young person, at a level commensurate with that child’s or young person’s level of understanding, about—

(i)	any right of appeal against a decision of the court; and

(ii)	the merits of pursuing any such appeal:

(e)	undertake any other task required by or under any other Act.

[57]     In Dvorak v Yamamoto, Moore J stated of the role, as redefined by s 9B:14

I accept there is an expectation, reflected in the new provision, that lawyers appointed to represent children are required to convey not only the views of the child but must also address the Court on the broader welfare and best interests considerations. … The expectation is that they will use their special knowledge and experience to advance the interests of the child within the wider parameters of the law to ensure that not only are their voices heard but that the child’s welfare and best interests are promoted.

[58]     It is clear that a lawyer for child is not a party to the proceedings. Any report that they file is not evidence.  Their reports are in the nature of submissions.  Just as any other counsel can file an amended set of submissions without the leave of the Court, there is no reason why counsel for child should have to obtain the leave of the Court to file an amended report.

[59]     In submissions dated 15 October 2018, Mr Freeman explained why he had deleted one sentence from his original report.  He indicated that he realised that this comment was in the nature of evidence and that he had put himself in the position of being summonsed to give evidence in which case he would need to withdraw as lawyer for the children.

14	Dvorak v Yamamoto, above n 11, at [67].

[60]     That is a reasonable explanation for his actions. They were not unlawful. The Court was not deprived of any significant assistance.  The Court was aware of the views of the boys but, appropriately, gave little weight to them saying:15

As to their views, these seem to have varied and changed as this case has progressed. I have little doubt that the boys are aware of each of their parent’s views about what the care arrangements should be, and this would be reflected in any views they express.  In any event, I consider that, at the age of eight years, the children are too young to have any views which they do express given serious consideration, given their circumstances and because, at their age, they cannot yet foresee the wider consequences for them of any views which they do express.

Principles of s 5 of the Care of Children Act 2004

[61]     The appellant alleges that the Family Court made an error of law in its consideration and application of the principles of s 5 of the Act.  Considering those principles is a mandatory requirement when the Court addresses a proceeding such as these.16

[62]     The Act contains three sections that are relevant to the present case and each is prescriptive as to the principles to be applied when considering the care of children.

[63]     Section 4 relevantly provides:

(1)        The welfare and best interests of a child in his or her particular circumstances must be the first and paramount consideration—

…

(2)       Any person considering the welfare and best interests of a child …

…

(b)        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.

(3)       It must not be presumed that the welfare and best interests of a child (of any age) require the child to be placed in the day-to-day care of a particular person because of that person’s gender.

…

15	B v T [2017] NZFC 10550 at [82].
16	Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1.

[64]     Section 5 sets out the general principles relating to a child’s welfare and best interests and says:

(a)        a child’s safety must be protected and, in particular, a child 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, … :

(f)	a child’s identity … should be preserved and strengthened

[65]     Section 6 of the Act deals with the views of a child.  Section 6(2) says that in proceedings involving, among other things, day-to-day care for a child:

(2)	In proceedings to which subsection (1) applies,—

(a)	a child must be given reasonable opportunities to express views on matters affecting the child; and

(b)	any views the child expresses (either directly or through a representative) must be taken into account.

[66]     Prior to the enactment of the Act, arrangements for the shared care of children were usually referred to as “custody” and “access” or sometimes “shared custody”. The terms custody and access carried some connotations as to the relationship between both the parents and their children and as between the respective parents.   The principles set out in ss 4, 5 and 6 of the Act were an attempt to impose a child-centric regime and to provide some direct guidance to the Courts as to what they should focus on in situations where arrangements for the care of children were contested.  The Act also introduced the new concept of day-to-day care which effectively replaced the concept of “custody”, with the Court having the power to make parenting orders determining who would have the role of providing day-to-day care for the child.17  The

new rules put a particular premium on “ongoing consultation and co-operation”

between parents.18   The application of that rule is a significant matter in issue in this

case.

Specific challenges by appellant

[67]     The appellant referred to the obligation in s 5(a) for children to be protected from all forms of violence.  Mr van Bohemen noted that at [100] of his decision the Judge had identified that there had been a complete breakdown in the parents’ ability to effectively liaise and cooperate with each other over parenting and that this dysfunction was having an adverse psychological impact on the children. He indicated that the appellant did not dispute the Court’s finding but submitted that the parenting order made by the Court did not address the cause of the dysfunction and in fact perpetuated it.

[68]     In relation to the “perpetuation” argument it was alleged that the parenting order “perpetuates the power imbalance identified by Ms Evans as being contrary to the boys’ welfare and interests and does nothing to redress it”.  The reference to Ms Evans is to the writer of the 2014 s 133 report.

[69]     The appellant’s submissions focussed heavily on the quantity of the time spent by the boys with the appellant rather than the quality.  There was a clear assumption that there was an imbalance of time spent by the boys in the care of each parent and that this imbalance was contrary to the principles of the Act.

[70]     It was submitted on behalf of the appellant that the regime put in place by the Family Court, at least in relation to term time, actually reduced the time spent by the boys with their father. Mr van Bohemen’s written submission stated:

They experience less parenting by their father and the gaps between paternal parenting blocks are bigger — in percentage terms the boys’ term time with their father has reduced from 43% to 37%.

[71]     Ms Duggan disputed the accuracy of the percentage calculation and also submitted that the gap between the children being in the appellant’s care during term time was only eight days rather than the 10 days claimed by the appellant.  However, it is clear that, on the regime set in place in December last year, that the boys spend a larger percentage of the school term time in the care of their mother.

[72]     Judge Russell specifically acknowledged the obligation in s 5(a).  He said:19

This principle mandatorily requires me to make a parenting order which ensures the children are kept safe. There are no physical violence issues which I need to specifically consider in the course of coming to this decision.  The evidence shows, however, there is a complete breakdown in these parents’ ability to effectively liaise and co-operate with each other over the parenting of their children, and I consider this dysfunction which has continued to exist for a number of years will be having an adverse psychological impact on the children.  This issue can be addressed by a comprehensive parenting order being put in place along with improved communication occurring between these parents.

[73]     The  order  made  by  Judge  Russell  stipulated  that  the  respondent  would

“continue to have the primary day-to-day care of [the boys]”.20

[124]    [The boys] shall have contact with [the appellant] at the following times:

School term

(a)	During the school term on a fortnightly cycle from Thursdays at 3.00 pm until Tuesdays at 9.00 am.

…

[74]     The reason that the care times were fixed as coinciding with school start and finish times was to avoid the parents having to engage with one another at the changeover.

[75]     Given the potential damaging psychological consequences for the boys arising from communication difficulties between the parents if there was a face-to-face changeover, that is a sensible arrangement and one consistent with the principles set out in s 5(a).

19	B v T, above n 15, at [100].
20	At [123].

[76]     The appellant says that the fact that the boys are not in his care 50 per cent of the time perpetuates a “power imbalance”.  The appellant was also critical of the use by the Judge of the terms “primary day-to-day care” and “contact” at [123] and [124] of the judgment to describe the parenting arrangements.  It was submitted that these terms were evocative of the pre-2004 concepts of custody and access rather than shared parenting.

[77]     The appellant also criticised the Court’s reference to comments made by

Hansen J in A v G21 and Gault J in B v E.22

[78]     Judge Russell had set out a passage from the decision in A v G where Hansen J had said that, in relation to viable shared parenting, “Firstly, there needs to be a good working relationship between the parents”.23

[79]     At [96], Judge Russell had also referred to a quotation from B v E where Gault J

had stated that:

Any arrangement by which a child spends substantial time with each parent has the potential for harm to the child arising from inconsistent activities, influences and living patterns. To reconcile these for the purpose of providing the child with stable and consistent support necessarily must involve substantial agreement and co-operation between the parents exercising access rights.

[80]     The appellant submitted that both of these observations are no longer good law and referred in particular to a decision of Baragwanath J in L v A.24

[81]   However, on the issue of the significance of interparental conflict, the appellant’s submissions overstate the differences between what Baragwanath J said in L v A and its sequel L v A(No 2).  There is no doubt that, in respect of the suggestion that a child or children of separated parents must live primarily with one parent or the other unless the relationship of the separated parents is harmonious, Baragwanath J made it clear that this was not a prerequisite to shared parenting. While Baragwanath J did say that interparental discord was not an “impermeable barrier” to orders for joint

21	A v G HC Invercargill CIV-2006-425-489, 21 December 2006.
22	B v E (1988) 5 NZFLR 65 (HC), (1988) 3 FRNZ 684.
23	A v G, above n 21, at [67].
24	L v A (2003) 23 FRNZ 583; L v A(No 2) (2003) 23 FRNZ 602.

care, he clearly acknowledged that it was an important consideration to be taken into account in evaluating where the interests of the children lay.  He specifically said:25

The true approach is rather to examine the factual considerations that may bear on the children’s welfare without preconception, although recognising that disharmony and the reasons for it are likely to bear heavily on the Court’s evaluation of what is in the children’s interests.

[82]     The specific submission by the appellant in relation to the language used by

Judge Russell to define the shared care arrangement was:

By framing its decision as day to day care/contact and not day to day care to both parents the Court, notwithstanding the other detailed provisions of its judgment, made an order which gave the respondent responsibility for the boys’ “day to day care” at all times. That was not in the welfare and interests of [the boys], it was contrary to the principles of 5(c) and was wrong.

[83]     In considering whether the order made by the Judge was consistent with the principles set out in s 5, it is necessary to consider the substance of the order rather than just the language used to describe it.

[84]     The authors of Brookers Family Law — Child Law describe an approach that will be consistent with the principles of s 5 in the following terms:26

Sharing of the child’s care will usually be achieved by making a parenting order which gives both parents a role in providing day-to-day care for the child and by specifying days and times when each parent will have the child in his or her care. It is likely that parenting orders will include detailed arrangements regarding each parent’s role and the time and place of changeover.  Orders may include special provisions for school holidays, Easter, Christmas, birthdays and long weekends. …. If parents have been unable to resolve their differences by agreement and ask the Court to decide for them, they need to have very clear rules governing their respective care obligations.

[85]     The authors do not suggest that the only type of division of day-to-day care which will meet the requirements of s 5 is a 50/50 sharing.   The critical feature emphasised is that, in order to ensure that the child has a continuing relationship with both parents (and therefore satisfy the obligation in s 5(e)), a parenting order will give both parents a role in providing day-to-day care in specified days and times delineating

25	L v A (2003) 23 FRNZ 583 at [49].
26	Brookers Family Law – Child Law, Volume 1 (loose-leaf ed, Thomson Reuters) at [CC48.02].

that care.  The order made by Judge Russell meets these criteria and the use of the words “primary day-to-day care” and “contact” do not alter that.

[86]     In  support  of  his  argument  that  the  Judge  had  applied  an  outdated understanding of the significance of parental conflict in determining whether shared parenting was appropriate, Mr van Bohemen referred to an article by an American psychologist, Linda Nielsen.27

[87]     That article advances the thesis that conflict and poor co-parenting are not linked to worse outcomes for children in joint physical custody than in sole physical custody and that the quality of the parent-child relationship is a better predictor of children’s outcomes than parental interpersonal conflict.

[88]     The  article  challenges  the  orthodox  understanding  that,  in  high  conflict divorces, children do worse in joint custody arrangements. The author says:28

The alternative and more recent perspective is that conflict and the quality of the coparenting relationship should not be such pivotal issues, especially when the children have — or would be able to develop — supportive, loving relationships with their parents.

[89]     The author also notes that highly conflictual interparental relationships are damaging for children generally and not just those in a joint or shared parenting situation.  She quotes the following passage:29

Although high quality parenting does not negate the pathological effects of interparental conflict on children’s well-being, high quality parenting by either parent can be a protective factor when parents have moderate or greater levels of conflict.

[90]     The article also noted that there was no consensus amongst social scientists as to the effect of interparental conflict in joint parenting situations and that, as yet, there was insufficient research to draw clear conclusions.

27	Linda Nielsen “Re-examining the Research on Parental Conflict, Coparenting, and Custody
Arrangements” (2017) 23:2 Psychology, Public Policy, and Law 211.
28	At 216.
29	At 225, quoting N Mahrer and others “How do parenting time and inter parental conflict affect the relations of quality of parenting and child well-being following divorce?” in L Drozd, M Saini and
N Olesen (eds)  Parenting plan evaluations: Applied research  for  the family court (Oxford
University Press, New York, 2016) 63 at 70.

[91]     Nothing in the article is inconsistent with the approach taken by Judge Russell. Neither is there anything in the article which suggests or implies that a 50/50 split of care is necessary or desirable in order to be effective.  To the extent that the article discusses statistics, the author says, after analysing various studies undertaken by North American researchers, “the researchers suggest that spending a minimum of
30% overnights is necessary for a father’s positive parenting to benefit children”.30

[92]     Even during term time, the Family Court order exceeds 30 per cent, and when the holiday time is taken into account, it substantially exceeds it.

[93]     It was clear that Judge Russell was alive to the possibility of a 50/50 equal sharing care regime.  He also gave consideration to whether the pre-existing regime was still in the best interests of the children. He noted that the reason for the particular durations of shared care specified in the 2012 order was the inability of the then very young children to process and comprehend extensive time absences away from one parent.  He expressed his reasoning for not adopting a 50/50 split in this way:

[114]    I have determined that a 50/50 equal sharing care regime is not in the children’s welfare and best interests.   I also consider the four stage 2012 parenting order does need to be updated and changed.  The children are now older, their sense of time has grown, and they are more able to readily understand a parenting routine and the situation that exists between their respective parents which I have referred to.  Their ability to understand and comprehend their own situation and needs will continue to grow with the passing of time.

[94]     The prior regime allowed for only limited overnight care for the appellant in the third week of the three-weekly cycle. The Judge felt that this arrangement was no longer consistent with s 5(d) of the Act which stipulates that a child should have continuity in his or her care, development and upbringing. The Judge said:

[115]    In coming to this decision, I have particular regard to the continuity principle and the need to preserve and strengthen the children’s relationship with each of their parents, referred to in s 5 of the Act. I accept that the limited overnight period of time the children spend with [the appellant] in week 3 of the three-weekly cycle in the parenting order is not now appropriate.  I also accept that he should be able to spend more of the schooling week with his children to help them with their schooling, their homework, and give him the opportunity to engage with the school and the children’s other weekday activities more than he has been doing to date.

30	At 225.

[95]     While reasonable minds might differ as to whether the particular regime that the Judge imposed to achieve this objective was the best one, he has clearly had regard to the relevant principles of s 5 in coming to the particular arrangement that he did. He has not made an error of law.

[96]     It is important to remember that the aspect of the order challenged in these proceedings was only one component of a number of changes made to the 2012 order. The Christmas holidays were to be shared in 14 day blocks, recognising the boys’ increased maturity and ability to have extended periods away from each parent; school term holidays other than the Christmas holidays were to be shared on a week about basis; and arrangements were put in place for the things like birthdays/special days, overseas travel and communication.   The communication provisions required all communication between the parents on guardianship issues to occur by way of email supported by a text message advising that an email had been sent.

[97]     To focus exclusively on the term time arrangements (as the appellant has done) is to ignore the overall package structured by the Court which for some 10 weeks of the year (term and Christmas holidays) provides for equal time (acknowledging a slight variation at the commencement and conclusion of the Christmas holidays) and is expressly designed to address what the Judge identified as the potentially adverse consequences of the parties’ communication difficulties.

[98]     I do not accept the appellant’s submission that the Judge ignored the statements of principle made by Baragwanath J in L v A.31   As noted above, at [81] in that case Baragwanath J expressly noted that interparental conflict was a factor for the Court to consider in evaluating the children’s best interests.

[99]     Mr van Bohemen urged upon me the approach taken by Courtney J in Shaw v Brown where the Family Court had made a finding of shared care notwithstanding parental conflict.32  However, there is one obvious and distinguishing feature between these two cases. As acknowledged by Courtney J at [11], the Family Court Judge had identified the lack of communication and cooperation between the parents, but had

31	Above n 24.
32	Shaw v Brown [2014] NZHC 2843.

considered that this problem could be overcome through further counselling and, because of that conclusion, made final parenting orders directing that the children live in the day-to-day care of their father and mother on a rotating week about basis.

[100]   In the present case, Judge Russell was not nearly as optimistic.  He said:

[110]    My review of the evidence confirms that there has been little change in  the  children’s parents’ circumstances since I  last  heard the  parenting application and made the parenting order in 2012.   There continues to be friction, dysfunction and mistrust in their relationship as parents of these boys. No improvement is in sight.

[101]   While the Judge certainly did not confine his criticism to just the appellant, he did identify certain specific features in the appellant’s behaviour which had caused problems and which he tried to ameliorate.  He said:

[111]    I accept [Ms T’s] evidence that she has tried to communicate with [Mr B] at times, but her efforts have been rebuffed. A travelling diary should not have been discontinued by him.  This diary was a specific provision of the earlier parenting order, and it was not open to him to unilaterally disregard it. He should have replied to [Ms T’s] emails that were sent to him about the children’s issues.  He should involve himself in the children’s schooling and extracurricular activities more than he does, notwithstanding his antipathy towards [Ms T]. It seems to me that [Mr B] has something of a siege mentality in his refusal to engage with [Ms T] about parenting and guardianship matters. [Mr B] seems fixated on a 50/50 equal sharing care arrangement being put in place for the children.  Children are not akin to relationship property to have their time divided in this way.  I have little doubt that if I was to impose a
50/50 equal sharing regime, a parallel parenting type situation for the children would arise. In my view, the submissions made by Ms Duggan and Ms Heney on this issue, and the difficulties this would cause for the children because of the lack of their parents’ ability to communicate with each other, [have] some substance. At the age of eight years, these children should not have to act as “go betweens” between their respective parents, conveying messages about
themselves and their other parent’s views, and any issues affecting them.

[102]   There is nothing novel about the Court being concerned with children having to convey messages from one parent to another because the parents are unwilling or unable to communicate with each other.   This was a relevant factor discussed by Cooke J in the case of Ives v Raza.33

33	Ives v Raza [2018] NZHC 2318 at [44].

[103]   Although the appellant denied, during cross-examination in the Family Court, that he was saying that the boys should be a go-between the parents, he did specifically give, as his explanation for not utilising the “travelling diary” that was required pursuant to the 2012 parenting order, the fact that he thought the boys could communicate with their parents on the sorts of issues that the diary was intended to address (the children’s routines, activities, developmental milestones and health/dietary/medical issues).  He said:34

I think at the age of two when this parenting order was written, that was very relevant.  Now that they’re eight, I don’t think it’s necessary to write in it communication about routines and activities, for example, because the children are eight years old and they’re in perfect command of the English language. They’re able to tell their parents what’s going on.

[104]   The  Judge’s comments  at  the  end of [111] of  the  decision  are  therefore legitimately based on the attitude expressed by the appellant in the Family Court hearing.

[105]   Mr van Bohemen submitted that this Court should:

… not let either party be excused from cooperation in supporting a continued a [sic] relationship between the children and the other parent.  An order for shared parenting should force both parents to break out of their cycle of non- communication.

[106]   There  has  been  an  order  for  shared  parenting  in  place  since  2012.   As Judge Russell noted, “This had not resulted in any improvement in the friction, dysfunction and mistrust between the parties” and “no improvement is in sight”.35

[107]   Given those factual findings made by the Judge is it wholly unrealistic to submit that the imposition of a 50/50 care arrangement would “force both parties to break out of their cycle of non-communication”.

34	Common bundle of documents for appeal, vol 2, at 283, line 21.
35	B v T, above n 15, at [110].

Conclusion

[108]   I am not satisfied that the appellant has identified any error of law in the decision under appeal. However, even if one had been established, I would have come to the same conclusion that Judge Russell did, namely that there were particular features of the communication difficulties between the parties that mean that the order imposed was in the best interests of the children.

[109]   The regime imposed is one of shared parenting and there is no presumption that the concept of shared parenting always involves the children concerned spending a precisely equal amount of time with each parent.  Although the older cases which imply that a cooperative and communitive relationship between parents is a pre- requisite for shared care are no longer good law, the effect of interparental conflict on the welfare of the children can still be a relevant matter in determining the details of the shared care arrangement that will be in the best interests of the children concerned and will ameliorate, to the extent possible, the potential adverse consequences of conflict, dysfunction and animosity between parents.

[110]   Accordingly, the appeal is dismissed.

Costs

[111]   The appellant is legally aided; the respondent is not.  The submissions of the respondent’s counsel concluded by saying:

The Appellant seeks to rely on the “shield” of legal aid to prevent an Order of costs being made against him.

[112]   However, the reality is that one of the consequences of a grant of legal aid is that the Court’s ability to award costs is very limited.

[113]   The  respondent’s  submissions  complain  that  the  appellant  owns  three businesses and a home with the implication being that he should not have received a grant of legal aid.  However, that is not a matter that this Court in these proceedings can do anything about.

[114]   In these circumstances, it is difficult to see what useful costs order the Court could make but, should the respondent wish to make an application, it should be filed
and served within 14 days, with the appellant having 14 days to respond.

Churchman J

Solicitors:
Bamford Law (for the Appellant), Solicitors, Christchurch
Michelle Duggan (for the Respondent), Solicitor, Nelson
Frank Freeman (counsel for the children), Hamish.Fletcher Lawyers, Nelson