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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE	
CIV-2024-404-296
[2024] NZHC 2724	

UNDER	the Care of Children Act 2004	
IN THE MATTER	of an application for leave to appeal under s 143(2) of the Care of Children Act 2004	
BETWEEN	EASTMAN
Appellant	
AND	JONES
Respondent	

Hearing:	5 September 2024	
Appearances:	P Cobcroft for Appellant W Mihitea for Respondent
E Stenhouse-White as Lawyer for Child	
Judgment:	20 September 2024	

JUDGMENT OF BLANCHARD J

This judgment was delivered by me on Friday, 20 September 2024 at 11:00 am pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar
Solicitors:	Sutcliffe Matson Law, Auckland Counsel:	W Mihitea, Manukau City, Auckland
E Stenhouse-White, Auckland
P Cobcroft, Auckland

EASTMAN v JONES [2024] NZHC 2724 [20 September 2024]

[1]	Mr Eastman appeals against a decision of Judge P S Ginnen dated 7 January 2024 in the Family Court.1 The decision relates to his and Ms Jones’s seven-year-old daughter, Amelia. Specifically, it concerns what parenting orders should be made in relation to Amelia and what school she should attend.

Amelia’s situation at the time of the Family Court hearing

[2]	Amelia is the parties’ only child. The parties separated in 2018 when she was not quite two years old. Following the separation, it was agreed that her care should be shared between them on a week about basis. This arrangement was formalised in parenting orders made by the Family Court by consent in June 2021.

[3]	From the beginning of 2022 Amelia attended EA School in an East Beach Suburb. Her parents both lived close to the school.

[4]	Both parties entered new relationships. Mr Eastman continued to live near the school, but at the beginning of 2023, Ms Jones moved to a Northern Beach suburb to live with her new partner.

[5]	During 2023, Amelia continued to attend EA School. This meant that, in the weeks she was in Ms Jones’s care, each school day she had a roughly two-hour drive to and from school.

[6]	As Amelia’s commute was unsustainable, and the parties could not agree on what to do about it, Mr Eastman applied to the Family Court. He applied for directions to resolve a dispute between guardians pursuant to s 46R of the Care of Children Act 2004 (the Act). He also applied under s 56 of the Act to vary the June 2021 orders. Mr Eastman sought an order that Amelia continue to attend EA School and new parenting orders that would see Amelia living significantly more time in the East Beach Suburb and significantly less time in the Northern Beach suburb. Specifically, the orders sought were that during the school term:

1	[Eastman] v [Jones] [2024] NZFC 6.

(a)	Amelia would be in Mr Eastman’s day-to-day care from Sunday to Friday each week;

(b)	she would be in Ms Jones’s care from Friday to Sunday three out of four weekends; and

(c)	she would be in Mr Eastman’s care one weekend per month.

[7]	Ms Jones opposed the applications. She sought an order that Amelia attend HC School and new parenting orders that were the mirror opposite of those sought by Mr Eastman.

[8]	The   courts   are    required    to    have    regard    to    Amelia’s    views.2    Ms Stenhouse-White was appointed as lawyer for the child. She filed memoranda indicating that Amelia did not wish to reduce the amount of time she had in each parent’s care. She wanted to continue to spend an equal amount of time with each of her parents. She liked attending EA School and had no basis to have a view about HC School as she had never attended the school.

The Family Court hearing

[9]	As Amelia’s situation was unsustainable, the hearing in the Family Court needed to take place as soon as possible. This had two consequences. First, the hearing went ahead without the benefit of a report under s 133 of the Act. Normally in a case like this a report would be obtained from a psychologist, but at the time there was a delay of around 18 months for a report of this kind. The parties agreed that it was not in Amelia’s interests to delay the hearing and went ahead without obtaining a s 133 report.

[10]	The second consequence of the urgency was that the hearing was a short cause fixture of half a day. A half day hearing is considered a short hearing for applications of this kind. The parties were cross-examined, but notes of evidence are not recorded

2	Care of Children Act 2004, ss 5(g) and 6.

for short cause hearings. Accordingly, the notes of evidence were not available at the hearing before me.

[11]	At the hearing in the Family Court Ms Stenhouse-White proposed alternative parenting orders to the ones sought by the parties. She proposed what is referred to as a 3:4:4:3 arrangement. Under this arrangement Amelia’s care would have been provided on an alternating fortnight basis with her being in the care of one parent from Wednesday to Sunday in week one and Wednesday to Saturday in week two, and in the care of her other parent from Sunday to Wednesday in week one and Saturday to Wednesday in week two.

[12]	Once this arrangement had been suggested, Mr Eastman changed his position so that he too was proposing a 3:4:4:3 arrangement.

[13]	The advantage of the 3:4:4:3 arrangement was that it would see Amelia spending an equal amount of time with each parent. However, the disadvantage was that it would not reduce Amelia’s travel time getting to and from school. It would also mean that her weekends would be split between her parents.

The Family Court decision

[14]	The Judge’s starting point was to ask herself which school Amelia should attend. Having decided that question, she then asked herself what parenting orders should be made.3

[15]	The Judge made several uncontentious, but important factual findings. First, the existing arrangement was unsustainable. The long commute from the Northern Beach suburb to school was taking its toll on Amelia.4 Second, both parents provided excellent care of Amelia.5 Third, both schools were good. Amelia would get a quality education at either school. This was a neutral factor.6

3	[Eastman] v [Jones], above n 1, at [5].
4	At [4].
5	At [8].
6	At [10].

[16]	The Judge went on to consider three other factors that she appeared to view as neutral. First, staying at EA School would mean that Amelia would have continuity in her education. The Judge noted that Amelia had friendships and relationships with teachers and the school environment and routines were familiar. The Judge said this was important as children do not do well when they change schools frequently. However, what was proposed was one change of school, not frequent changes of schools. The Judge considered that Amelia was resilient and well-supported and would likely settle well enough into a new school.7

[17]	The second factor was Amelia’s relationships with her stepsiblings. The Judge noted Amelia’s close relationship with her stepbrother Enzo, who is the same age as her and also attended EA School. The Judge noted that one of Amelia’s teachers had thought they were twins. However, she also mentioned Amelia’s stepsiblings in the Northern Beach suburb and noted that Amelia seems to get on well with all her large family.8

[18]	The third factor the Judge discussed was which parent was better able to support Amelia in extra-curricular activities. Both parents thought they were better able to do so. But the Judge did not seem to prefer one party’s position over the other.9

[19]	The Judge then turned to what she referred to as the main difference between Amelia’s parents’ households. This was that, when Amelia lived with her father, she attended after school care, and when she lived with her mother, she did not.10

[20]	Mr Eastman said in his affidavit evidence that he and his partner worked fulltime and would usually collect Amelia and her stepbrother from after school care by 5.30 pm. In contrast, Ms Jones was not working at the time because she had sprained her shoulder and she envisaged that, when she returned to work, she would be working part time from 10 am to 2 pm, so she would be able to collect Amelia from school at 3 pm. The Judge considered that attending after school care regularly made for a long school day, and said that, if Amelia spent all her school weeks living with

7	At [11].
8	At [12].
9	At [14].
10	At [15].

her father, she may attend after school care twice as much as she was under the existing arrangement.11

[21]	Mr Eastman modified his position in his affidavit evidence when he gave evidence orally. He said that he and his partner could adjust their working hours so that they could collect Amelia earlier from after school care and some days directly from school. His lawyer attached letters from Mr Eastman’s and his partner’s employers to further submissions filed after the hearing. The letters said that they could each have some flexibility to attend to family duties. However, the Judge did not put any weight on this as she regarded the suggested flexibility as untested.12

[22]	Ultimately, the Judge concluded in a “finally balanced decision” that moving Amelia to HC School and her being in the care of her mother for most of the school week was the best option for her.13

[23]	As the Judge had already decided that the parenting orders would follow the decision regarding which school Amelia should attend, the discussion regarding what parenting orders should be made was brief.14

[24]	The Judge said that she was not drawn to an arrangement that saw Amelia’s weekends split between her parents.15 Although the Judge did not directly refer to the 3:4:4:3 arrangement here, it seems that this is what she had in mind.

[25]	The result was that the Judge made the parenting orders sought by Ms Jones.16

Events since the Family Court hearing

[26]	The hearing in the Family Court took place on 5 October 2023. The Judge’s decision was released on 7 January 2024. Amelia has attended the whole of the 2024 school year so far at HC School.

11	At [17].
12	At [17].
13	At [18]–[19].
14	At [20]–[22].
15	At [21].
16	At [23(d)].

[27]	Ms Stenhouse-White’s submissions for the hearing before me provided an update on Amelia’s views. In short, Amelia’s “clear view” is that she would like the current arrangement to remain in place.

Appeal legal principles

[28]	This is a general appeal. The appellant bears the onus of satisfying the appellate court that it should differ from the decision under appeal. It is only if the appellate court considers that the appealed decision is wrong that it is justified in interfering with it. The lower court may have had a particular advantage (such as technical expertise or the opportunity to assess the credibility of witnesses, where such assessment is important). The appellate court may take the view that it has no basis for rejecting the reasoning of the court appealed from and that its decision should stand. But it has the responsibility of considering the merits of the case afresh, and the weight it gives to the reasoning of the court below is a matter for the appellate court’s assessment. The appellant is entitled to a 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 judgement.17

[29]	An appeal against a decision of the Family Court under s 56 of the Act varying parenting orders is available as of right. Leave is required to appeal against a decision of the Court under s 46R.18 However, where a decision of the Family Court has long-term implications for the welfare of a child, leave may readily be granted.19

Sections 4 and 5 of the Act

[30]	Under s 4, the welfare and best interests of the child in his or her particular circumstances must be “the first and paramount consideration”. To that end, the Court must take into account the principles in s 5.

17	Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [4], [5] and [16]; Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [31] and [32].
18	Care of Children Act, s 143(2).
19	SFB v JEBH [2015] NZHC 2897 at [8(c)]; BFW v MPG [2012] NZHC 1188 at [23]; and Drake v Drake [2023] NZHC 2390 at [66].

[31]	Of particular relevance in this case are the principles in s 5(d) that the child “should have continuity in his or her care, development, and upbringing” and in s 5(e) that the child “should continue to have a relationship with both of his or her parents, and that a child’s relationship with both his or her family group, whānau, hapū, or iwi should be preserved and strengthened”.

Leave to appeal

[32]	Ms Mihitea, for Ms Jones, opposed leave. However, in my view, leave clearly should be granted. The decision regarding what school Amelia attends will have long- term implications for her welfare. Further, the decisions regarding what parenting orders should be made and what school she should attend are interlinked. It would not be sensible to consider one and not the other.

Abandonment of support for the 3:4:4:3 arrangement

[33]	The problem with the 3:4:4:3 arrangement is that it would result in Amelia being subjected to just as much driving time as the original week about arrangement that everyone agreed was unsustainable. For this reason, Ms Stenhouse-White is no longer in favour of this arrangement, and, at the hearing, Ms Cobcroft, for Mr Eastman, advised me that Mr Eastman no longer supports it. He instead seeks the orders that he originally sought in the Family Court, that is, orders that are the mirror opposite of those made by the Family Court.

Alleged errors in the Family Court decision

[34]	Ms Cobcroft argued that the decision of the Family Court was not in Amelia’s welfare and best interests. She submitted that the Judge erred because she did not give proper consideration to the principles in s 5(d) and (e) of the Act. In particular, the Judge put too much weight on the issue of after school care and too little weight on:

(a)	The disruption to Amelia’s relationships and routines that would result from changing school.

(b)	The fact that Amelia currently attended school with Enzo and would continue to do so for the remainder of their education. However, with

the change of school, Amelia would not have any members of her family attend school with her until her final year of high school.

(c)	The impact that the new arrangement would have on her relationship with her father, stepbrother and stepmother.

Status of Amelia’s views

[35]	Before I go any further, I need to consider a preliminary point. The section of Ms Stenhouse-White’s submissions that discusses Amelia’s current views includes the following statement:

Amelia said that “I barely get time with mum” and said she only sees her mother on Wednesdays and for one weekend per month, due to her mother’s work commitments. From Amelia’s perspective she is transported to and from school, and cared for before and after school, by her step-grandmother, other than on Wednesdays when her mother has the day off work.

[36]	Ms Cobcroft submitted that this is evidence showing that there has been a material change of circumstances since the  Family  Court hearing.  At  that  time, Ms Jones was not working at all and she envisaged that, when she recovered from injury, she would only be working part time and would be able to be with Amelia after school. Now she appears to be working full time and spending little time with Amelia.

[37]	Although the statements are hearsay, the admissibility of evidence in proceedings under the Act is not subject to the admissibility requirements of the Evidence Act 2006.20 I have had regard to these statements insofar as they express Amelia’s views but I do not consider them beyond that. There may be issues as to their factual accuracy because of Amelia’s  age and there was no opportunity for    Ms Jones to file evidence in response. I therefore do not consider the statements to be of assistance in determining the appeal.

[38]	If Mr Eastman considers there has been a material change of circumstances, he can seek leave under s 139A of the Act to make a further application to the Family

20 Family Court Act 1980, s 12A(3)(e) and (4) which provide that “the court hearing the proceeding may receive any evidence, whether or not admissible under the Evidence Act 2006, that the court considers may assist it to determine the proceeding”. See also Roberts v Cresswell [2023] NZCA 36, [2023] NZFLR 364 at [143].

Court for variation of the parenting orders. If he has evidence that Ms Jones is now working long hours, he can support his application with that evidence. However, because of the lack of reliable evidence demonstrating otherwise, I proceed to determine this appeal on the same basis as the Judge — that is, Ms Jones will collect Amelia and care for her after school.

Decision

[39]	The Judge did not specifically mention s 5(d) and (e) of the Act. However, she did expressly say that in reaching her decisions, both in relation to what school Amelia should attend and what parenting orders should be made, she had considered the principles in s 5. My clear impression from the discussion in the decision is that the Judge did have regard to the principles in both s 5(d) and (e). Accordingly, this is not a case where the Court failed to have any regard to relevant principles. Rather the issues are whether she had sufficient regard to them and whether her overall conclusions were in Amelia’s welfare and best interests.

[40]	For the reasons below, I have concluded that the Judge did have sufficient regard to the relevant principles and her overall conclusions were in Amelia’s welfare and best interests.

[41]	The Judge had a difficult decision to make. There were two main reasons for this. First, because there was no s 133 report, the Judge had less information available to her than would normally be the case.

[42]	It was suggested to me during the hearing that, if I reach the point where I have concluded that the Judge made errors and I am deciding whether I should allow the appeal and, if so, whether I should make new orders or send the matter back to the Family Court, I can direct that a s 133 report is prepared and consider that report before making my decision. I am not sure this is correct. But, as I have concluded that the Judge did not make any errors, this is not something I need to decide.

[43]	The second reason the Judge had a difficult decision to make was that it was agreed that it was unsustainable for Amelia to continue to spend equal time with each parent, that both parents provided excellent care, and that both schools were equally

good. This meant that the Judge was going to need to make a decision that would favour one parent over the other on a reasonably narrow basis.

[44]	Whatever decision the Judge made, Amelia was going to end up spending significantly more time with one parent and significantly less with the other. The new arrangement was therefore necessarily going to have an impact on Amelia’s relationship with one of her parents and that parent’s side of the family. As it turned out, the Judge decided that Amelia should spend more time with her mother and so the impact of the new arrangement was on her relationship with her father and his side of the family. However, had she decided that Amelia should spend more time with her father, there would have been an equivalent impact on her mother and her mother’s side of the family.

[45]	For this reason, I do not think that it advances matters for Mr Eastman to say in a general way that the Judge was in error because she put too little weight on the impact the new arrangement would have on her relationship with her father, stepbrother and stepmother. To make headway, Mr Eastman needed to go further and identify a particular and disproportionate impact on himself or his side of the family. I was not referred to any evidence to suggest that there might be an impact of that kind.

[46]	Having reached this point, I am left having to weigh, on the one hand, the disadvantage of Amelia having to change schools and the impact of not attending school with Enzo, with, on the other hand, the advantage of Amelia not having to attend after school care. It is not easy to weigh these matters against each other. I agree with the Judge that this is a finely balanced decision.

[47]	Ms Cobcroft argued that changing Amelia’s school conflicted with the principle in s 5(d). I agree that a change of school necessarily involves a break in continuity. However, plainly it is not the case that all change has to be avoided. Maintenance of the status quo is just one factor the court must consider when assessing Amelia’s welfare and best interests.21

21	Clapham v Clapham [1993] NZFLR 408 (CA) at 410; and GJD v MTG [Care of Children] [2008] NZFLR 880 at [15]–[16].

[48]	I agree with the Judge that, while frequent changes of school may be harmful and should be avoided, one change of school was not a significant concern, particularly for a resilient and well-supported child like Amelia.

[49]	Ms Cobcroft also argued that Amelia not being able to continue school with Enzo conflicted with the principle in s 5(e). But, this principle does not mean that any change necessarily must be avoided. Again, the impact of any change on Amelia’s relationship with either side of her family is just one factor to weigh in the assessment of her welfare and best interests.

[50]	I certainly agree that Amelia not being able to attend school with Enzo is a disadvantage of her changing schools. However, I think the Judge was right not to see this as decisive. Many children do not have siblings at school with them and suffer no ill effects. Amelia and Enzo will continue to see each other out of school. They will spend significantly less time together, but I am sure they will continue to have a strong relationship.

[51]	I now turn to the issue of after school care. In my view, it was reasonable for the Judge to discount the evidence that Mr Eastman and his partner may have some flexibility to collect Amelia earlier from after school care and some days directly from school. The letters from  their  employers  were  provided  after  the  hearing  and  Ms Mihitea did not have the opportunity to question Mr Eastman about them. It was also unclear what this flexibility would look like in practice. The Judge was right to characterise  it  as  untested.  I  will  therefore  proceed  on  the  basis  set  out  in   Mr Eastman’s affidavit evidence, that is, that Amelia would generally remain in after school care until 5.30 pm.

[52]	In contrast, the evidence from Ms Jones was that she would be able to collect Amelia and care for her every day after school. She would not need to spend any time in after school care.

[53]	Based  on  the  evidence  before  the  Judge,  whether  Amelia  lived  with  Mr Eastman and attended EA School or with Ms Jones and attended HC School, would make a significant difference. In the first situation, she would spend up to 10 hours a

week in after school care, whereas in the second situation, she would spend all that time in the care of one of her parents (Ms Jones).

[54]	As the Judge said, there is nothing wrong with attending after school care, and many children of working parents do. The after school programme in question was provided by a reputable and professional operator and offered a variety of interesting things for children to do.22

[55]	However, as the Judge said, attending after school care would make for a long school day.23 If Amelia had to attend after school care most days, the result would be a very long school week, particularly for a seven-year-old. As she would be in her father’s care throughout every school week, she would need to attend after school care every week (not just every second week, as she did before the Family Court’s decision). In view of this, on balance, I consider that the Judge was right to see the after school care issue as decisive.

[56]	For these reasons, the parenting orders made by the Judge were appropriate. It follows that the Judge was also right to decide that Amelia should attend HC School.

Result

[57]	The appeal is dismissed.

[58]	Ms Jones is entitled to costs in relation to the appeal. To that end, I categorise the appeal as a category 2 proceeding. Time allocation B is appropriate in relation to each step taken in the appeal. Reasonable disbursements are also payable.

Blanchard J

22	[Eastman] v [Jones], above n 1, at [16].
23	At [17].