NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO 11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER
INFORMATION, PLEASE SEE
HTTP://WWW.JUSTICE.GOVT.NZ/COURTS/FAMILY- COURT/LEGISLATION/RESTRICTIONS-ON-PUBLICATIONS.	
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY	
CIV-2014-404-002092
[2015] NZHC 654	

IN THE MATTER	of the Care of Children Act 2004	
AND		
IN THE MATTER	of an appeal against the decision of the Family Court pursuant to section 143 of the Care of Children Act 2004	
BETWEEN	TOI
Appellant	
AND	TOI
First Respondent

JIP
Second Respondent	

Hearing:	18 February 2015	
Appearances:	M Headifen for Appellant
J Hawker for First Respondent
No appearance for or by Second Respondent D Sim Lawyer for the Children	
Judgment:	2 April 2015	

JUDGMENT OF HINTON J

This judgment is delivered by me on 2 April 2015 at 11 am
pursuant to r 11.5 of the High Court Rules.

.....................................................
Registrar / Deputy Registrar

TOI v TOI & Anor [2015] NZHC 654 [1 April 2015]

Introduction

[1]	The appellant appeals against a decision of the Family Court declining to grant her day-to-day care of her three children under the Care of Children Act 2004.1

Background

[2]	The oldest child has just turned 14, the second child is 11 and the youngest turned eight on the day of the appeal hearing. All three children live with the appellant’s sister, aunt A in their maternal grandmother’s home in Lynfield, together with the maternal grandmother. The oldest child is at boarding school during the week. The middle child is at intermediate school in Mt Albert. The youngest child is at primary school in Mt Albert. Both the younger children are in Maori bi-lingual units.

[3]	The appellant was just 16 when the oldest child was born. She and the children’s father lived with the grandmother and aunts A and H for significant periods of time.

[4]	The appellant and the children’s father then separated in 2007.

[5]	Aunt A is the first respondent. The children’s father is the second respondent. He has taken no steps in the proceeding. He has contact with the children but not regularly. He lives in Wellington.

[6]	Aunt A and the grandmother maintain they have been primarily responsible for the care of the children since 2007, (i.e. for eight years). The mother disputes that position, in terms of the period 2007–June 2012. The Family Court Judge found that, at the least, the children spent a great deal of time in aunt A’s household between 2007 and 2012, for some of which time the mother was living elsewhere. Since June 2012 there is no dispute that the children have lived in the aunt’s household and the mother has lived elsewhere. There are various reasons advanced for what has happened, which I see as having little relevance. I do note that the appellant says she has in the past suffered abuse from one or more people and has had issues arising out of this.

1	T v T [2014] NZFC 6051.

[7]	In October 2012, aunt A applied on a without notice basis for a parenting order as a result of the appellant’s collecting the children from the aunt’s household. There were allegations of neglect and inability by the mother to manage her emotions. Aunt A’s application was granted. Since that time, there has been contact between the children and the appellant. Overnight contact ceased for a time but was reinstated at a hearing in 2013.

[8]	The appellant has a fourth child of whom she has day-to-day care. He is two years old. This child has a different father to the children that are the subject of this appeal. The appellant is no longer in a relationship with that person.

[9]	The appellant is living in a rented house at Gulf Harbour, which she selected to be close to her father who provides her with support. The appellant has a full-time job as an education adviser. This involves her travelling around day-care centres on the North Shore.

[10]	Unfortunately there is said to have been a high level of conflict within the children’s maternal family for the last few years. The mother and grandfather get on. The aunts and grandmother get on. There is little in between.

Family Court judgment

[11]	On 24 July 2014, the Family Court Judge declined to grant the appellant day- to-day care of her children. She ordered however that the appellant have care of the children every second weekend and for half of the school holidays.

[12]	The Judge considered a psychologist’s report prepared in June 2013. The psychologist also gave evidence at the hearing. In the report, the psychologist expressed strong concerns about the children being in the primary care of the appellant. The psychologist said that the appellant had no insight into the effects of her actions on the children and highlighted concerns about the appellant’s ability to manage all three children for lengthy periods. The psychologist considered the children had a warm, supportive environment in aunt A’s household. The Judge expressly found that since the June 2013 report the appellant had taken significant steps to try to address those concerns including attending parenting programmes and

counselling. The Judge referred to the appellant’s full-time work and the fact that she had obtained accommodation that was very suitable for children.

[13]	Turning to the practicalities of the appellant’s application, the Judge said that if the children were to move to live with the appellant, it would not be possible for there to be a gradual transition because of the distance between where the appellant lives (Gulf Harbour) and where the children are currently based (Lynfield).

[14]	The Judge identified problems with the appellant’s proposal, including that the appellant had not parented the three children alone for the last two years or more. These difficulties would be compounded by the significant travel distances that the appellant would have to commute during the week day. The Judge was also concerned about the disruption to the children’s schooling, including the fact that the younger two would no longer be attending a bilingual unit.

[15]	The Judge concluded that it would be in the children’s best interests for them to remain in the day-to-day care of their aunt and to have contact with the appellant every second weekend, and for half of the holidays. The Judge was persuaded by the need to protect the children’s safety, to provide continuity of care and to protect the children from what she saw as inevitable destabilisation and insecurity. She expressly agreed with the comments of the psychologist that adoption of the appellant’s proposal would likely result in difficulties emotionally, behaviourally and probably academically for all three children.

[16]	The Judge took into account the children’s view that they wished to live with the appellant. However, she noted that those views do not determine the outcome.

[17]	The Judge commended the appellant for the steps that she had taken to become a better parent, but she was not persuaded that in the appellant’s particular circumstances, she could manage under the pressure of full-time parenting of two and sometimes three additional children (i.e. four in all), as well as working full-time and commuting long distances.

Updating evidence of psychologist

[18]	The psychologist filed an updated report of 5 November 2014 and was cross- examined at the appeal hearing.

[19]	As I recorded in LV & RP v SOO I have difficulty with updating evidence being filed on care of children appeals.2 I realise this has become a fairly common practice but care needs to be taken to deal with the matter as an appeal, not as a de facto application for variation. Other difficulties arise, for example, the only updating evidence in this case is the November 2014 psychologist’s report, so the parties had no opportunity to give evidence themselves on the matters raised in that report, nor would it be desirable that they do so as a new hearing in effect results. In my view the better course is to prioritise the appeal hearing and avoid updating evidence, unless there is some significant new event or development. If there is a problem with a report being outdated, an updated report should be obtained before the Family Court hearing.

[20]	My assessment of the psychologist’s November 2014 report and the evidence she gave before me is that it confirms that the relationship between the appellant and her children has improved since June 2013 and it confirms that some of the risks around the appellant’s behaviour have been reduced or removed. I did not take the psychologist’s overall view to have changed. The psychologist also reports on discussions with the children relevant to their views, which I refer to later, and in this regard the report runs contrary to the appellant’s position.

Appellant’s submissions

[21]	The appellant appeals on the grounds that the Family Court Judge erred in placing insufficient weight on the evidence that the appellant’s parenting and behaviour had changed significantly in the 12 months prior to the Family Court hearing; placing too much weight on the June 2013 psychologist’s report which was based on interviews conducted one year before the hearing and too little weight on the children’s views. As a result, the Judge failed to address what was in the best interests of the children.

2	LV & RP v SOO [2015] NZHC 557.

[22]	Counsel for the appellant, Mr Headifen, submitted that the evidence establishes that there had been significant positive changes in the appellant and that these changes are reflected in the psychologist’s updated report of 5 November 2014. He argues that the appellant’s ability to parent the children has significantly improved since the original report dated 23 June 2013. He says the Judge placed too much weight on the outdated June 2013 psychological report and too little on the changes that the appellant had undergone, which changes were acknowledged by the psychologist under cross- examination. These changes reduce the risks identified by the Judge.

[23]	Regarding the views of the children, Mr Headifen says that the children wish to live with their mother and that this view has been consistent over a period of two years. He submits that the Judge acknowledged the children’s views but did not take them into account, or if she did, she did not place appropriate weight upon their views. He argues that the Judge failed to assess the children’s maturity and analyse the reasons behind their views.

[24]	For these reasons, and more broadly, because it is in the best interests of the children. Mr Headifen submits that the appeal should be allowed and the children placed in the appellant’s care.

[25]	In the course of submissions, Mr Headifen volunteered that the appellant would move from Gulf Harbour to West Auckland to alleviate the logistical issues that arise from living at a distance and to at least promote a shared care arrangement. I cannot take a theoretical move into account. There is no evidence from the appellant in support, let alone other counsel having an opportunity to comment. I am also not convinced that such a move would be wise from the appellant’s perspective. She chose to live at Gulf Harbour to get the support of her father, from which she clearly benefitted. She has a very responsible well-paid job which covers the North Shore area.

Respondent’s submissions

[26]	Counsel for the respondent, Ms Hawker, submits that the orders made by the Family Court are appropriate for the children involved and are consistent with the principles of the Act.

[27]	Ms Hawker accepts that the appellant had attended parenting programmes and counselling. However, she submits that there was no evidence before the Family Court of significant changes made by the appellant upon which the Judge could rely. She submits that the appellant failed to provide any independent evidence and did not demonstrate any insight into her past actions during cross-examination in the Family Court. Ms Hawker argues that the concerns held by aunt A, the psychologist and the Family Court, at the time of the hearing, remain unresolved.

[28]	Ms Hawker notes that while the psychologist accepted during cross- examination in this court that the appellant had made changes, her responses had been cautious. Further, Ms Hawker said the psychologist was of the view that the appellant’s ability to manage the children’s behaviour was a concern that had been addressed but it was not the only concern.

[29]	Regarding the argument that too much weight was placed on the psychologist’s report, and not enough on the changes made by the appellant, Ms Hawker submits that the psychologist was available at the Family Court hearing for cross-examination and counsel for the appellant had the opportunity to put to her the updating matters that the appellant relies upon. Ms Hawker says that quite apart from the psychologist’s evidence, there were many other factors that led to the Judge’s decision.

[30]	Turning to the views of the child, Ms Hawker submits that the children’s views have been highly conflicted. She asks the court to draw the inference that the appellant had placed the children under pressure, following receipt of the November 2014 psychologist’s report, to say to their lawyer that they wished to live with the appellant. She says that even if the issue of influence is put to one side, the children’s views should not be elevated above the child’s best interests.

Submissions of lawyer for the children

[31]	Ms Sim was at a slight disadvantage as she was appearing as agent for Ms von Keisenberg and had little history with this matter.

[32]	The oldest child had advised Ms Sim he wished to be in the day-to-day care of his mother and to spend more time in her care than provided by the current orders. He

said the holiday orders were okay, except he wanted to see more of his father during the school holidays.

[33]	The middle and youngest children both said they wished to live with their mother.

Approach on appeal

[34]	Under s 143(4) of the Care of Children Act 2004, the High Court Rules and ss 73-78 of the District Courts Act 1947 apply to this appeal as if it were an appeal under s 72 of the District Courts Act. Section 76(1) of that Act provides that the High Court on appeal may:

76	Powers of High Court on appeal

(1)	Having heard an appeal under section 72, the High Court may—

(a)	make any decision or decisions it thinks should have been made:

(b)	direct the District Court in which the decision appealed against was made—

(i)	to rehear the proceedings concerned; or

(ii)	to consider or determine (whether for the first time or again) any matters the High Court directs; or

(iii)	to enter judgment for any party to the proceedings concerned the High Court directs:

(c)	make any further or other orders it thinks fit (including any orders as to costs).

[35]	It follows that the approach on appeal is a general appeal, following the principles in Austin, Nichols & Co Inc v Stichting Lodestar:3

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

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

assessment of the acceptability and weight to be accorded to the evidence, rather than forming its own opinion.

Relevant law

[36]	Section 4 of the Care of Children Act provides that the child’s welfare and best interests must be the first and paramount consideration.

[37]	Section 5 then sets out the principles relating to a child’s welfare and best interests:

(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.

[38]	The Supreme Court has said that the order in which the principles appear does not affect the weight to be given to them.4 The principle in s 5(a), to protect the child’s safety, is the only principle couched in mandatory terms.

[39]	The principle in s 5(b) says that a child’s care, development and upbringing should be primarily the responsibility of his or her parents and guardians. This principle is obviously designed to recognise the importance of the parent/child

4	Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [3].

relationship. Tipping J in B v Department of Social Welfare made the following remarks in the context of the Children, Young Persons, and Their Families Act 1989:5

The Act reflects the way in which the New Zealand Parliament has given effect to the Convention. We must not be thought to be downplaying the importance which biological ties have in the principles underlying this area of the law. Ordinarily the interests and welfare of children are best served by their being in the custody of their biological parents, or at least one of them; that is to do no more than state the obvious and to recognise the fundamental role of the biological family in our society.

[40]	The Judge went on to say that in making the decision regarding the custody of the child, the welfare and interests of the child predominate over the interests of the biological parents and over the biological tie factor.6

[41]	Tipping J’s comments have been endorsed in a number of High Court cases in the Care of Children Act context.7 In T v Chief Executive of the Department of Child Young and Family Services, Gendall J cited B v Department of Social Welfare and stated that:8
Blood ties are important and may end up being decisive, but there will be cases where, because of particular circumstances, the wishes of a natural parent to have custody of his or her child will be subordinated to others because the child’s welfare so requires it.

[42]	In the present case, where a natural parent is applying for day-to-day care of the child, the principle in s 5(b) must be borne closely in mind. Other relevant principles are, in order applicable in this case, ss 5(d), (e) and (c). Ultimately though, the question is a broader one: what is in the welfare and best interests of the children? I understand it to be accepted by all parties that the children should all be in the day- to-day care of the same person.

5	B v Department of Social Welfare (1998) 16 FRNZ 522 (CA) at 525.
6	At 526.
7	See for example, T v Chief Executive of the Department of Child Young and Family Services [2007] NZFLR 143 (HC); T v L HC Auckland CIV-2009-404-1259, 12 August 2009.
8	At [27].

Discussion

Inadequate weight on the changes that the appellant has made to her parenting and behaviour

[43]	This is the appellant’s first point of appeal.

[44]	The Judge clearly took account of the steps that the appellant had taken to improve her parenting and behaviour since the November 2013 psychologist’s report.9 She said the appellant “deserved credit” for the steps that she had taken.

[45]	However, those steps were insufficient to persuade the Judge that the appellant would be able to manage her behaviour under the pressure of full-time parenting of four children in total, full-time work and long commuting distances.

[46]	The only expert evidence that the Judge had before her was from the psychologist. The Judge had the benefit not only of reading the report prepared in June 2013 but of hearing the psychologist give evidence in court in the July 2014 hearing. The oral evidence and impressions from it were obviously fresh in the Judge’s mind as the judgment was delivered that day. It was appropriate for the Judge to rely on the psychologist’s opinions on the steps that the appellant had taken to change her attitude and her parenting abilities.

[47]	During examination in chief in the Family Court, the psychologist was asked whether she thought that the steps that the appellant had taken were enough. She replied:

I don’t think it’s enough. I think it’s a good start but I think there are issues around management of anger that need to be addressed. There’s also issues around understanding the children’s emotional needs …

[48]	During cross-examination, the psychologist was reluctant to say that the parenting courses that the appellant had undertaken had resolved all her earlier concerns. She said:

Yes I think that she can certainly [manage the children’s behaviour in an authoritative way] – she certainly has shown that she took on board the

9	See [13] and [29].

suggestions that were made … That is not the only issue of course, that’s not the only issue of risk but that’s the one that she has addressed.

[49]	With regard to the personal counselling that the appellant had undertaken, the psychologist accepted this had happened but said that there was no report from the counsellor and the court is unable to know what the counselling sessions covered and whether it addressed anger management.

[50]	The Family Court Judge accepted and adopted the psychologist’s evidence that the appellant would need much longer intensive therapy to understand her children’s needs and the effects of her behaviour on them.10

[51]	After reviewing the evidence that was before the Judge, I consider that she did take into account and place adequate weight on the changes that the appellant had undergone. While the Judge did not have the benefit of an updated written report from the psychologist, she was able to hear her views on the matter orally. It seems to me that the psychologist made it clear that the steps the appellant took had not alleviated all her concerns. Further, as I observed above, I do not see the November 2014 report as materially altering either the psychologist’s views or the Judge’s conclusions. There is ongoing work and improvement on the part of the appellant but not to a level that would reverse either the psychologist’s views or the Judge’s conclusions. In my view, the Judge did not err under this ground of appeal.

Excessive weight on psychologist’s report prepared before the hearing

[52]	This is the appellant’s second point of appeal.

[53]	For much the same reasons as noted above, I do not consider that excessive weight was placed on the June 2013 report. The Judge considered the oral updating evidence that was before her as at July 2014. She also referred to a large number of other factors, outside of the psychologist’s evidence, including continuity of care, schooling, extra-curricular and other arrangements. Continuity and stability are reasonably significant in this case.

10	At [29].

Inadequate weight on children’s views

[54]	This is the third ground of appeal.

[55]	Section 6 of the Act provides that a child must be given reasonable opportunities to express their views and that those views must be taken into account. However, a child’s views are not decisive and the weight placed on them is a matter of discretion.11

[56]	The Family Court Judge plainly did consider the children’s views, although her comment on them is cursory. The Family Court Judge says she met with the children and they all wanted to live with their mother which had been consistent over the previous two years. She goes on to consider the other factors she obviously sees as relevant and then returns to the children’s views at [33]:

Despite it is not in accordance with the children’s views I am quite satisfied it is in their best interests for them to remain in the day to day care of their aunt
…

[57]	Moreover, it is significant that in this case the children have had ample opportunities to express their views and the views of the two older children have, contrary to Mr Headifen’s submission, not been consistent. I note that in the November 2014 psychologist’s report, the oldest child’s views were recorded as:

It is not however [X’s] preference to live with his mother. He feels his Aunt [A’s] is home to him. He is comfortable with the life he has there and the activities she provides for him. He has some concerns at the lack of activities at his mother’s and his inability to do the social activities he does at his aunt’s.

[58]	The report went on to say that the child’s overall preference was to live with his father.

[59]	The second child’s views were recorded as:

She can miss her mother when she is not around her and would like “a bit more” time with her. … She did not need to see [her aunt] any more than she does now because she sees her every day, but would not like to see her any less.

11	C v S [2006] 3 NZLR 420 (HC) at [31(h)].

(emphasis added)

[60]	Only two months later, lawyer for the child in a memorandum dated 9 February 2015 noted that the oldest child was “very clear that he wished to be in the day-to-day care of his mother and that was what he had always wanted”.

[61]	In relation to the second child, lawyer for the child said that she indicated that she also wished to live with her mother.

[62]	In an earlier memorandum filed by lawyer for the child dated 3 April 2013, counsel had said:

It is clear there is considerable conflict in the lives of these children. Although the children are very well cared for by their aunt and grandmother, it is clear to the children that their grandmother and aunt do not approve of their mother or her lifestyle. Equally, they are under pressure from their mother to ascribe to her point of view about where they should live. Clearly this needs to stop for the benefit of these children.

(emphasis added)

[63]	I would read the children’s views as being quite understandably conflicted. They love and are loyal to their mother but they have a happy, stable life in their aunt’s household.

[64]	Where the Court is presented with conflicting views of a child, Heath J in
Carpenter v Armstrong said:12

Mr Casey's inquiries reveal a young boy of seven years, who is troubled by inappropriate parental influences. The conflicting “views” expressed by Craig on two occasions, within a short space of time, were plainly the subject of coaching by each parent. In those circumstances, any “views” expressed by Craig are equivocal and cannot be given any weight in the evaluative process.

[65]	In light of the conflicting evidence as to the children’s “views”, I consider that the Judge did not place inadequate weight on the views of the children and was not in error in this regard. She adopted the correct approach in saying that her decision must be ultimately based on the children’s welfare and best interests.13

12	Carpenter v Armstrong HC Tauranga, CIV-2009-470-511, 31 July 2009 at [84].
13	At [26].

Summary

[66]	In my view, the Judge did not err in the three ways stated in the grounds of appeal. The Judge adequately balanced the psychologist’s evidence and the other evidence that was before her. She took into account the views of the children but was not required to give a certain level of weight to those views. The November 2014 report, while more positive than the earlier report, does not detract from the view that the Judge’s decision was correctly made. The psychologist’s views are not in any event the only or determining factors. While this is a finely balanced matter, particularly given it is an application by the mother and given her continuing efforts, I am not satisfied that the Family Court’s decision was wrong.

[67]	Like the Family Court Judge, I strongly commend the appellant for her efforts in building and achieving real attachment with her children. It is clear that she now has a greater understanding than she did in 2013 of managing the children’s behaviour. However, there are other concerns that remain extant.

[68]	The Judge was concerned about the ability of the appellant to manage her own behaviour under the pressure of full-time parenting and that overall concern remains.14 The youngest child’s teacher had expressed concern to the psychologist regarding the appellant’s attitude. The examples used were that the appellant had wished to come on a school field trip with her sister so that the teacher could see that the children preferred her over their aunt. Also, the teacher reported that the appellant had been angry at a parent-teacher interview.

[69]	The other concerns raised by the psychologist include a number of denials by the appellant of matters she had admitted to previously, or that were otherwise evidenced, including a denial that the appellant had left the children in the care of her mother and sisters, when she had admitted to this previously; a denial that she had previously prevented the children from seeing their father; and a denial that she had ever hit the children. It is difficult to adequately address issues through counselling if they are not acknowledged.

14	At [29] of the judgment.

[70]	Overall the psychologist still expressed concern at the appellant’s behaviour and her ability to care for the children full-time.

[71]	There is also still the risk that the appellant’s antagonism to her sister and her mother may prevent the children from contacting their aunt and grandmother if they were in the full-time care of their mother. The November 2014 psychologist’s report noted that the appellant does not feel she needs her mother and sister in her life. However, the need for a child to have continuity in his or her care and development and to continue to have a relationship with his or her family group are important principles relating to a child’s welfare and best interests.

[72]	In addition, there are the logistical difficulties caused by the appellant’s residing some distance from the children’s schools. The appellant accepts that she cannot or does not always take the children to their after-school activities, to birthday parties and so on. In my view, it is clearly in the children’s best interests for them to continue at their schools, with their school friends and after-school activities and to have stability in that regard.

[73]	I consider that all these factors support the conclusion that the Family Court Judge came to the correct outcome.

Result

[74]	The appeal is dismissed.

[75]	It is important that the appellant not view the decision as a reflection on her as a mother or as a person. Rather it is a decision that it is in the best interests of the children that they remain living on a day to day basis in the household where they are, which is based on a whole lot of reasons.

[76]	In the case of the oldest child, as the Family Court Judge also noted, the weekly boarding and shared weekends and holidays mean that in effect he spends nearly equal time with his mother and in his aunt’s household. Also he is 14 so in a few years he will effectively be able to make his own decisions.

[77]	I expressed concern during the hearing that the appellant should in any event be in greater contact with the children, both in person and by phone.

[78]	Counsel then very helpfully agreed to the following additional contact arrangements for the appellant, and also for aunt A, which I now direct:

(a)	On the children’s birthdays and the mother’s birthday, if these do not fall on a day that the mother has contact, then the mother will have contact for two hours after school (if a school day) and two hours from 4-6pm (if a weekend).

(b)	On Mother’s Day, if it does not fall on a day that the mother has contact, then the mother will have contact from 10am – 1pm.

(c)	On aunt A, aunt H and the maternal grandmother’s birthdays, if these do not fall on a day that the children are in the care of aunt A, then aunt A will have the children in her care for two hours after school (if a school day) or from 4-6pm (if a weekend).

(d)	The mother and aunt A can phone the oldest and middle children at any time on the children’s cellphones and the youngest child can phone the mother and aunt A at any time using whatever phone is available to her.

[79]	Concern was expressed by all parties over the breakdown in the relationship between the mother, the aunt and the maternal grandmother. It goes without saying that while all of them love the children, no-one can really have the best interests of these children at heart without doing everything possible to set aside quite understandable differences. The parties sensibly recognised this and are all prepared to attend counselling. They do not have the funds to pay for that.

[80]	Relying on my power under s 76(1)(c) of the District Courts Act 1947 I hereby order pursuant to s 46G(2) of the Care of Children Act 2004 that the parties be referred to counselling services to improve the relationship between them. I consider that the

provision of counselling services is the best means of assisting the parties with their relationship.

[81]	Hopefully counselling will lead to the parties coming to increasing contact arrangements between the children and their mother.

[82]	Finally, there is concern that the father of the children needs to have more contact with them, especially with the oldest who is the only boy. There is little I can do than to record this but I did notice that all members of the mother’s family were nodding in agreement when this subject came up. In fact I noticed a number of occasions when they seemed to react in the same way so perhaps there is more consensus than they think there is.

Hinton J