BL v AG [2018] NZHC 1581

BL v AG [2018] NZHC 1581 [27 June 2018]NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANYREPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND11D 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 ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECIV-2018-419-147[2018] NZHC 1581BETWEEN BLAppellantAND AGRespondentHearing: 27 June 2018Counsel: R Sutton for AppellantZ Wackenier for RespondentK Tan for childrenJudgment: 27 June 2018ORAL JUDGMENT OF WHATA J[1] This is an application for stay in relation to a Family Court judgment permittingthe respondent and his two daughters to travel for three weeks to England. The appealproper, including application for leave to appeal, is not set down to be heard until afterthe holiday.Background[2] This matter has a very unfortunate background. Applications were made byAG regarding E's schooling in June 2017 and were followed by more comprehensiveapplications concerning guardianship in July 2017. A hearing was convened on 28August 2017. Judge Collin opened his judgment of 19 September 2017, dealing withthis dispute, in this way:And so another round of AG and BL begins both hoping to inflict the knock-out blow but seemingly unaware that they have done more damage to theirdaughters than to each other.[3] Critical arrangements, including whether the status quo should prevail, whoshould have day-to-day care, schooling arrangements and whether in fact the Courtshould assume guardianship were considered. The Judge elaborated at length on theextent to which both parents have involved the children in their disputes and have littletrouble concluding that the then status quo could not continue pending determinationof final orders. He also referred to AG's complaint that E's school attendance, whilewith BL, had been poor but noted the attendance problems was inextricably linked tothe parenting arrangements and actions of both parents. E's intensive engagementwith health and other professionals, as a further battle ground, is also noted as a matterof ongoing concern, as are other actions of the parents, including videoing each other,the disputes about passports and phone calls.[4] Against this background, the Judge decided to impose strict interim parentingorders designed to substantially reduce the exposure of the children to their parents'conflict. This included week-about care arrangements, precise timing for pick-upsthrough the Christmas period and an order that "the parties may travel with thechildren when they are in their care but may not travel so as to interfere with the carearrangements of the other parent". The following conditions, among others, were alsoimposed:(a) Neither parent is to attend any school event, sporting event or anyother function during the week the other parent has the care of thechildren;(b) The children are to attend school every day unless they are so unwellthat they are unable to do so. If they do not attend school, Ms Tan[lawyer for the children] is to be advised within 24 hours by emaildirected to her. The email is to contains the reasons [the children] didnot attend.(c) The children are not to change school unless directed by the Court.[5] Leave was also granted to either parent or Ms Tan to seek without notice orurgent directions. The unaffected existing conditions also remained in place.[6] In April this year, AG made an application to vary the orders to enable travelto the United Kingdom with the children between 28 June and 20 July. This wasopposed by BL. The sole determination for issue by the Court was whether thechildren should be allowed to travel to the United Kingdom during that time.The judgment under appeal[7] The decision granting the application was made on 27 April 2018.1 Variousclaimed jurisdictional issues were rejected by the Judge. He noted that AG had nooption other than to make an application to the Court for the determination of the issue.If he had failed to do so, he would have been liable for sanctions either under ss 77 or80 and would have been justifiably accused of failing to comply with the Court order.2[8] The Judge also rejected the suggestion that because the current orders areinterim, the Court does not have the right to further amend the orders pending finaldetermination. The Judge stated that, pursuant to s 49, at any time before a parentingorder is finally determined, a Judge may make an interim parenting order that haseffect until the final order has been made.[9] The Judge stated the only issue for determination is whether the travel is in thewelfare and best interest of the children, having regard to ss 4, 5 and 6 and, in1 The application was granted subject to a timing change, that the travel would instead take placebetween 6 July and 27 July 2018.2 AG v BL [2018] NZFC 3096 at [4].particular, the principles set out at ss 5(e) and (f). The Judge refers to the children'sviews. With the assistance of Ms Tan, the Judge made several observations aboutthose views, including that A is very keen to travel while E is not. He notes that bothchildren could identify both the good and negative aspects of the travel.[10] The Judge also identified the respective positions of the parties, noting that AGidentifies the benefits of children going to the United Kingdom and spending time intheir country of birth, spending time in their paternal grandmother's home before it issold, attending some Harry Potter events, and visiting family and friends. BL isrecorded as stating that there is no urgency, that the children have had overseas travelthis year to Fiji and that the travel will impact on her time with them and will affectthe schooling of A which is recorded as already being behind her peers.[11] In resolving to permit the travel, the Judge observed (in summary):(a) Section 5(e) requires the child should continue to have a relationshipwith their family group and s 5(f) requires the child's identity bepreserved and strengthened;(b) The children have significant English heritage which is recent andremains ongoing;(c) The children should and must, if possible, be given regularopportunities to travel to the United Kingdom so they can form,maintain and preserve relationships with their English whanau and havethe opportunity of developing a growing sense of their English culture;(d) He disagreed with BL's position that the children have no connectionto the home in which AG's mother resided;(e) He acknowledged:(i) The issues raised by the children, including that internationaltravel can be tiring and often leads to fights, disagreements andbad conditions caused by jetlag;(ii) There is a known history of complaints regarding AG ignoringthe children, of disagreements between him and E, and notbeing unavailable to discuss problems when they arise;(iii) Against that, at Christmas time the children travelled with theirfather to Fiji for a week and no known complaints existregarding that travel other than that A was sunburnt;(f) A has got behind in her schooling and that E has missed a great deal ofschool time. There is also reference to a comment made by E that "itwas a bit rich for AG to take the children out of school when hecomplained regarding their absences which suggests she has beenrecently talked to about that" – according to the Judge, it was an adultcomment to make;(g) In any event, the children have been far more regular in their schoolattendance more recently and the Judge was not satisfied that having aweek off school for overseas travel will affect their learning in any way.On the contrary, he observes that overseas travel can be a goodopportunity to teach the children about history, geography and England,and provide them with life experiences that cannot be provided withina classroom;(h) The present order as framed restricts the travel to one week and it isunreasonable to expect the children to travel to and from England in aweek;(i) He rejects the argument that he has already determined the issue ofextended overseas travel;(j) Ultimately, he does not consider that an additional week's travel is amaterial variation to the existing orders; and(k) He therefore made the orders enabling the travel to occur.Argument[12] The central grounds raised by the appellant for stay are:(a) The request for additional travel time is incongruent with concernspreviously expressed by the respondent about the children's absencefrom school, noting that also soon after the present orders were made,a further application was made to alter A's schooling arrangements;(b) The Judge in his first decision of 19 September 2017, stated:Attendance at school is not an option. E is eight. She doesnot have the right to choose whether she goes to school. It isa legal requirement to attend and a parent can be criminallyprosecuted for failing to ensure that their children are atschool when they ought to be.(c) There is no need to or justification to travel to England which affectstheir schooling and derogates from the existing interim order.(d) The Judge wrongly did not follow the direction made by Hammond Jin Fletcher v McMillan, namely:3Assuming there has been a state of affairs that can properly bedescribed as a status quo, or something like it, should not be disturbedunless the welfare of that child, using the term in the largest sense ascovering physical, mental and moral, matters, is distinctly put at risk.(e) Given the likely disrupting effect of long distance travel, the decisionto grant the application was wrong.(f) There is evidence that E remains steadfastly against the travel and thatA is not committal. These views must be given added weight,especially as E has been consistently opposed to the travel.(g) The appeal will be rendered nugatory if the travel occurs.3 Fletcher v McMillan (1996) 14 FRNZ 234 at 236.(h) There were also procedural frailties in the process adopted by Courtbelow, given the without notice procedure. It was adopted even though,contrary to r 416H(b), there was no undue hardship and such hardshipcould not be established.4 This is said to amount to an abuse of processas an on notice application process is subject to clear statutorytimeframes.[13] The respondent and Ms Tan, for the children, submit granting the stay wouldnot be in the best interests of the children. Ms Tan noted that A appeared to beequivocal about the holiday while E did not want to go. In her view though, theseopinions reflect the difficulties confronted by the children within their situation.[14] Ms Wackenier also raises a procedural objection, namely, leave is needed foran appeal of a s 46R decision. Within this rubric, she submits that in order to pass theleave threshold, there must be a substantive effect on the children. She submits thatnone exists.[15] Ms Wackenier also emphasises that significant resources have been applied toa holiday once the decision was made and that the appeal was filed at the last possibleminute and that the application in fact for stay was only raised at the first conference.Assessment[16] It is common ground the threshold for granting a stay was framed by JudgeMather in Crosby v Crosby as follows:[a] The Family Court has power to entertain an application for stay ofproceedings in respect of an appeal against its judgment.[b] The overriding consideration in such an application is the welfare ofthe children.[c] Whether or not the appeal will be rendered nugatory if a stay is refusedwill be a highly relevant consideration.[d] The arguments in favour of a stay will be stronger if the decision underappeal has the effect of significantly changing the status quo.4 Family Court Rules 2002, r 416H(b).[e] The Court will have regard to any evidence of lack of bona fides inthe filing of an appeal and an application for stay as a consequence.[f] The reluctance of the High Court on appeal to interfere with findingsof credibility, and the disposal of an appeal largely or entirely on theevidence heard in the Family Court, decrease the prospects ofsuccessful appeal and hence weaken the arguments in favour of a stay.[g] Each case will turn on its own facts. The length of time before theappeal is likely to be heard, the current circumstances of the partiesand children and the consequence of delay pending the hearing of theappeal will all be relevant."[17] Priestley J, on appeal, added that the observation at (f) should be modified,noting (in short) that the circumstances at the time of appeal might justify a lesstolerant approach to the Family Court judgment.5[18] The present notice of appeal simply alleges the Court erred in fact and law,considered irrelevant considerations and failed to consider relevant considerations.Plainly the notice is too widely drafted to have any cogency whatsoever. However,with the benefit of argument, I interpolate that the main ground of appeal, other thanthe procedural issues raised, is that the Judge was wrong to derogate from the statusquo as the variation to the interim order could not be justified on child-welfaregrounds.[19] I agree that an appeal framed like that raises a substantive matter. I also agreethat a variation to parenting orders must be clearly justified. If pressed and requiredto do so, I would have granted leave to bring the appeal. The interim orders, now inplace for some nine months, have provided the routine so clearly needed by thechildren. So, it is fair to bring a case about whether that order was justified. However,I am satisfied the application for stay should not be granted. First, in agreement withthe Judge, there is no jurisdictional bar to the application to vary an interim order.Leave was granted to seek further directions. In any event, interim orders must becapable of variation having regard to, among other things, the welfare of the childrensometimes under urgency.5 Crosby v Crosby HC Auckland AP124-SW01, 21 December 2001 at [29]-[30].[20] Furthermore, while I make no final determination as to the proceduralrequirements in this context, for the purpose of an application for stay, I do notconsider that a "fast track" approach was such an abuse of process to warrant a stay.On this, the Family Court enjoys wide jurisdiction to determine its own process.Moreover, BL has had a fair opportunity to be heard in a manner commensurate withthe issue that was before the Family Court and now before this Court.[21] Second, the variation to the existing order is minor. There being no bar tooverseas travel per se, the issue is whether an additional week traveling with AG toEngland is objectionable on child welfare grounds. While, as Hammond J put it inFletcher, the status quo is to be preserved where that has been shown to further theinterests of the child, variation to the existing orders to permit an additional week withone parent for a special trip appears unobjectionable, even with the fraught backgroundin this case and the pressing need for stability. In this regard, I am advised thatextended holidays were previously allowed, referring to a previous order by consentin 2014. I simply note, however, that I had not sighted that particular order.[22] Third, that the Judge fairly and reasonably weighed the competingconsiderations in terms of the interests of the children, including their views. Heplainly has an in-depth understanding of the circumstances of all affected by his orderand, in particular, the children. I also broadly agree with his assessment, based on theinformation available to me. Whakapapa is an ingredient of identity and providingphysical connection to a child's whakapapa, to a child's heritage, is a legitimateconsideration. While the break in routine and the likely jetlag are negative factors tobe weighed, the benefits of enabling the children to directly experience their heritageoutweigh those factors.[23] At this juncture, I acknowledge the views of E, in particular, who appearsopposed to travel. But, as submitted by Ms Tan, her view plainly is coloured by loyaltyto her mother, rather than genuine apprehension about travel with her father. Thatconclusion is supported by the observations of Ms Trenberth in her s 133 report,namely that:E has wholeheartedly accepted BL's influence.[24] I agree therefore with Ms Tan, that this context justifies placing less weight onE's objections. Ms Tan also made the insightful submission that depriving E of thisopportunity may entrench her previously poor relationship with her father. As for A,Ms Tan says she is caught in a loyalty bind and not wanting to disappoint either parentand has therefore been very careful about the words that she has used.[25] Fourth, while the appeal will be rendered nugatory if the stay is not granted,the respondent will lose the fruits of his success in the Family Court if it is. I thereforeconsider this factor to be neutral. In addition, I want to be clear that nothing I say hereshould be seen to endorse applications for variation to interim orders as anything otherthan the exception to the rule. As I have said, in a case like the present, the childrenneed a settled routine and disruption to that routine should be avoided unless clearlyjustified. For this reason, the outcome should not be viewed by AG as setting aprecedent for future applications of this kind. He will need to show that the benefitsof the variation clearly outweigh the detriment to the children caused by altering theirroutine. A second visit to England, for example, may not carry the same weight as itdid on this occasion.[26] Finally, there is an issue as to the effect of the variation on the balance of theexisting order. My understanding is that once the holiday is complete, the terms andconditions of the existing order will apply as they did prior to the variation. In anyevent, this issue is not of such moment as to warrant a stay. If there is any ongoingdoubt about this, the parties should have recourse to the Family Court for furtherassistance.[27] In the result, given my impression of the merits of the appeal, and the clearbenefits to the children of enabling them to physically experience their culturalheritage, I am satisfied that a stay should not be granted.66 In delivering judgment, I erroneously included a "not" before "satisfied".Costs[28] I will reserve costs but my preliminary indication is that I think costs shouldlie where they fall, particularly if BL is legally aided.