HOPKINS v JACKSON [2022] NZCA 653

HOPKINS v JACKSON [2022] NZCA 653 [21 December 2022]NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANYREPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO 11D OFTHE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASESEE HTTPS://WWW.JUSTICE.GOVT.NZ/ABOUT/NEWS-AND-MEDIA/MEDIA-CENTRE/MEDIA-INFORMATION/MEDIA-GUIDE/COURTS-WITH-SPECIAL-MEDIA-PROVISIONS/FAMILY-COURT/.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA594/2022[2022] NZCA 653BETWEEN HOPKINSApplicantAND JACKSONRespondentCourt: Brown and Goddard JJCounsel: N Levy KC for ApplicantE T Blincoe for RespondentS E Hughes as counsel for the childJudgment:(On the papers)21 December 2022 at 10.00 amJUDGMENT OF THE COURTA The application for leave to appeal is declined.B There is no order as to costs.____________________________________________________________________REASONS OF THE COURT(Given by Goddard J)[1] The parties are the parents and guardians of Kara.1 Kara was born in late 2017.She recently turned five years old and began school.[2] In June 2022 the Family Court determined differences between the partiesabout care arrangements for Kara, and about which school Kara should attend.2The father appealed from that decision to the High Court. The appeal was allowed.3The mother now seeks leave to bring a further appeal to this Court under s 145 of theCare of Children Act 2004 (the Act).Family Court decision[3] At the time of the Family Court decision Kara was in the joint care of herparents on a 2:2:3 day care regime. Her father sought to continue with thatarrangement. Her mother sought to adjust that arrangement to a 9:5 day care regimeover a 14 day period. She proposed that the father have care of Kara in week 1 from10.00 am on Monday until before school/day care on the Tuesday, and on Friday fromthe end of day care until midday Monday. In week 2 the father's care would cease onthe Monday at midday and the father would have video contact with Kara onWednesdays and Fridays at 6.00 pm.[4] The parties also disagreed about the school that Kara should attend. It wascommon ground that both schools would be appropriate from an educationalperspective.4 But for practical reasons relating to travel and work commitments thefather preferred school A. The mother preferred school B, which is in the area in whichboth parents live.1 We have adopted the High Court's approach of anonymising the names of the parties and theirchild, in light of suppression requirements.2 [Hopkins] v [Jackson] [2022] NZFC 5719 [Family Court decision].3 Hopkins v Jackson [2022] NZHC 2649 [High Court decision].4 Family Court decision, above n 2, at [17].[5] Judge Grace recorded that the decision was not an easy one as the factors werefinely balanced.5 The Judge considered these issues by reference to ss 4, 5 and 6 ofthe Act. Section 4 emphasises that the focus is on the best interests and welfare of thechild who is the subject of the proceedings. In reaching a decision about what is inthe best interests and welfare of Kara, the Court is required to take into account theprinciples set out in s 5 of the Act:5 Principles relating to child's welfare and best interestsThe principles relating to a child's welfare and best interests are that—(a) a child's safety must be protected and, in particular, a childmust be protected from all forms of violence (as defined insections 9(2), 10, and 11 of the Family Violence Act 2018)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 beprimarily the responsibility of his or her parents andguardians:(c) a child's care, development, and upbringing should befacilitated by ongoing consultation and co-operation betweenhis or her parents, guardians, and any other person having arole 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 hisor her parents, and that a child's relationship with his or herfamily group, whānau, hapū, or iwi should be preserved andstrengthened:(f) a child's identity (including, without limitation, his or herculture, language, and religious denomination and practice)should be preserved and strengthened.[6] Section 6 requires the Court to take account of the views and wishes of thechild and to give those views and wishes such weight as is appropriate, having regardto the child's age and degree of maturity. As the Judge noted, given Kara's age anyviews or wishes she might have carry limited weight.65 At [1].6 At [35].[7] The principles that the Judge saw as most influential in this case were paras (d)and (e) of s 5. The para (d) principle — continuity in Kara's care, development andupbringing — favoured continuation of the existing 2:2:3 regime. The Judge saidthere would need to be a significant reason why that arrangement needed to change.He said there was nothing in the evidence produced at the hearing to suggest there wassuch a significant reason.7[8] The other principle emphasised by the Judge was para (e) relating to the child'scontinuing relationship with their parents and with their family group, whānau, hapūor iwi. The Judge noted that Kara has extended family members on both sides. It isimportant that those relationships continue to be fostered. It is also important that herrelationship with her paternal and maternal grandparents is fostered. Re-adjusting thecurrent care arrangements would result in diminishing either Kara's relationship withher step-sisters or her relationship with her step-brothers. If there were to be areduction with either set of step-siblings, the Judge considered that would reflectnegatively on Kara as it would affect her relationship with them.8[9] The Judge did not consider that s 5(f) had much bearing in this particular case.9[10] The Judge then considered which school Kara should attend. He concludedthat it would be in Kara's interests to attend school B as that would allow her todevelop and maintain friendships with students within her school community andwithin her local community. The Judge considered that decision dictated the carearrangements in this case because the evidence was that the father could not alter hiswork commitments to enable him to take Kara to that school and collect her from after-school care.107 At [68].8 At [69]–[71].9 At [72].10 At [87]–[88].[11] As a result of the view the Judge reached on which school Kara should attend,he made two directions:(a) a direction under s 46R of the Act that she attend school B; and(b) a direction under s 48 of the Act that the 9:5 regime proposed by themother should be adopted.High Court decision[12] The father appealed to the High Court under s 143(4) of the Act against bothof these directions. As noted, McQueen J allowed the appeal.11 She set aside theorders made in the Family Court, and directed that:12(a) the 2:2:3 care arrangement in place prior to the Family Court decisionbe reinstated; and(b) Kara was to attend school A.[13] The High Court Judge considered that the Family Court Judge gave insufficientweight to the continuity principle set out in s 5(d) of the Act.13 She also consideredthat the Family Court Judge erred in failing to give sufficient weight to the preservationand strengthening of Kara's relationship with her whānau, and in particular herrelationship with her father and her sisters, as required by s 5(e).14[14] The father represented himself before the High Court. He made submissionsabout the relevance of tikanga Māori to the matters before the Court. He emphasisedthe importance of whanaungatanga. He said that in the Family Court he was not askedto talk about the place of te ao Māori in his life and the lives of his daughters.He suggested that should have been raised by the Judge when the lawyers did not doso.1511 High Court decision, above n 3.12 At [81].13 At [55].14 At [57]–[62].15 At [35]–[38].[15] The application for leave to appeal to this Court focusses on the High CourtJudge's treatment of the father's arguments about the relevance of tikanga Māori.We therefore set out in full the relevant passage of her judgment:16[65] Mr Hopkins's arguments about the relevance of tikanga Māori werenot before the Family Court Judge so he could not address them. However, Iconsider it is appropriate for me to address the points made, albeit in a limitedway given the short timeframe I have had for delivering this judgment.[66] It is well established that tikanga is part of the common law inAotearoa New Zealand. It is also the case that the Courts may assume thatParliament intends legislation to be interpreted in keeping with te Tiriti oWaitangi | Treaty of Waitangi unless Parliament expressly indicates otherwise.In the very recent judgment of the Supreme Court in Ellis v R, Glazebrook Jobserved that in "simple cases where tikanga is relevant and uncontroversial,submissions may suffice", recognising that expert evidence may not alwaysbe required.[67] In response to my questions to her, Ms Esera, counsel for Ms Jackson,accepted that tikanga does not necessarily have to be the subject of expertevidence and also that the principles in s 5 of the Act may be understood asconsistent with tikanga. Ms Esera also submitted that the Family Courtdecision itself is not inconsistent with tikanga.[68] I consider that despite Mr Hopkins not explicitly bringing the fact thathe and his tamariki are Māori to the attention of the Family Court, it would bewrong for me not to recognise this fact in considering the appeal. Kara is atamaiti Māori and this is an important part of her identity. Accordingly,although it was not the Judge's fault as no express information was beforehim, the judgment was wrong, based on what is now known, to conclude thatthe principle in s 5(f) "does not have much bearing". It does have bearing ona decision about the most suitable care arrangement for Kara.[69] Accordingly, from a tikanga Māori perspective, it seems to me thatthe full impact of changing the care arrangement on Kara's relationship withher sisters, her father and whānau (as well as her hapū and iwi) has not beenproperly accounted for in the new care arrangement.[70] In any event, I am satisfied that application of the principles in s 5(d),(e) and (f) to the assessment of Kara's welfare and best interests requires herspending substantial time with Mr Hopkins and her sisters (thereforeproviding the potential for time to be spent with her extended family) and thisis not met by the current care arrangement. I do not consider then that I needto also reach a final view on the separate application of tikanga to Kara's carearrangement for the purposes of this judgment.16 Footnotes omitted.[16] The High Court Judge did not consider that the benefits of attending school Boutweighed the conclusion she had reached that Kara's welfare and best interestsrequired her to spend substantial time with her father and her sisters, and that this wasnot met by the new care arrangement.17Leave to appeal to this Court: relevant principles[17] The mother seeks leave to bring a further appeal to this Court under s 145 ofthe Act, which as relevant provides:145 Appeal to Court of Appeal(1) An appeal lies to the Court of Appeal from an order or decision of theHigh Court under this Act, but—(a) no appeal lies from an order or decision under section 46C or46R:(b) if the order or decision was made on appeal from theFamily Court or the District Court, an appeal lies only withthe leave of the Court of Appeal.[18] That section provides for a right of appeal with leave against the direction madein relation to care arrangements under s 48 of the Act. But s 145(1)(a) expresslyprovides that no appeal lies from an order under s 46R, which is the provision underwhich the direction in relation to the school that S would attend was made.[19] However there is authority that a decision made under s 46R can be the subjectof an appeal to this Court where it is closely intertwined with a decision under otherprovisions of the Act, such as s 48 in relation to parenting orders, and the two decisionscannot be dealt with in isolation from each other.1817 At [71]–[80].18 See Wright v Wright [1984] 1 NZLR 366 (CA) at 371–372, which dealt with equivalent provisionsin the Guardianship Act 1968; and ROJ v TEJ [2013] NZCA 323 at [15].[20] In L v K this Court endorsed the following principles in relation to secondappeals under the Act:19(a) The appeal must raise a question of law or fact capable of bona fide andserious argument involving an interest of sufficient importance tooutweigh the cost and delay of the further appeal.(b) The guiding principle is the requirements of justice.(c) On a second appeal this Court is not engaged in general correction oferror, but has the function of clarifying the law.[21] Any error of law must be material "in the sense that it may have led [theHigh Court Judge] to reach a different conclusion".20[22] The delay that flows from a grant of leave needs to be considered in light ofthe principle in s 4(2)(a)(i) of the Act that decisions affecting children should be madeand implemented within a timeframe appropriate to the child's sense of time.21The application for leave to appealThe mother's grounds for seeking leave to appeal[23] The mother submits that in this case the decision about the school that Karawould attend under s 46R was so closely intertwined with the s 48 decision that it isnecessary for the two matters to be considered together. Both decisions can thus bethe subject of an appeal to this Court, with leave, despite s 145(1)(a).[24] The mother's proposed grounds of appeal focus on:(a) the receipt by the High Court of further information about the fact thatthe father is Māori, and about the concepts of tikanga andwhanaungatanga. The mother submits that the father should not have19 L v K [2010] NZCA 618, (2010) 28 FRNZ 692 at [4].20 At [17].21 At [24].been permitted to introduce new material of this kind without seekingleave to adduce further evidence on appeal under r 20.16 of theHigh Court Rules 2016. Any such evidence should have been adducedby affidavit. The mother should have had an opportunity to test thatevidence and file evidence in response. She should also have had anopportunity to submit that if new evidence was to be admitted, thematter should be sent back to the Family Court so that each party wouldhave an available right of appeal from the conclusion reached by aCourt on the basis of all admissible evidence; and(b) the weight placed by the Judge on the father's submissions (the mothersays these were in reality evidence) about tikanga, without theassistance of appropriate evidence on the content and relevance oftikanga principles in this case.[25] The mother says that leave should be granted because of:(a) the importance of this matter for Kara;(b) the general importance of determining whether there are circumstancesin which the High Court can consider evidence given by way ofsubmission, without indicating an intention to do so and withoutallowing time for the other party to be heard on the new matters raised;and(c) the general importance of setting guidelines for determining how anyrelevant principles of tikanga are to be introduced in Family Courtproceedings.The father's opposition to leave to bring a second appeal[26] The father opposes the application for leave to bring a second appeal.[27] The father submits there is no jurisdiction to entertain an appeal from thedecision under s 46R of the Act relating to the school that Kara will attend.[28] The father also submits that the leave application does not raise a question oflaw capable of bona fide and serious argument. In particular, there was no breach ofnatural justice as the matters raised by the father were properly raised by way ofsubmission, and were dealt with in the father's written submissions in advance of thehearing. In any event, a breach of natural justice is not a ground of appeal in theabsence of a material error by the High Court Judge. In this case, the submissionsbased on tikanga did not go further than submitting that the Family Court had giveninsufficient weight to the importance of whanaungatanga, which is reflected in s 5(e).And if there was an error, it was not material to the decision. The High Court Judge'sassessment turned on the application of s 5(d) and (e). The Judge expressly recordedthat she need not reach a view on the separate application of tikanga to Kara's carearrangements for the purposes of her judgment.22[29] The father also emphasised the importance of bringing this litigation to an end.Continuing litigation and associated uncertainty and conflict between the parties isnot, the father submits, in Kara's best interests. That is an important factor weighingagainst a grant of leave in this case.23Submissions of lawyer for the child[30] The lawyer for the child submitted that in considering whether or not to grantleave to appeal, this Court should take into account the clear benefit to Kara of theproceedings ending and that part of the conflict between her parents ceasing.[31] However counsel for the child agreed with the submission for the mother thatit is important to have guidelines to determine how specific principles of tikanga areto be introduced in Family Court proceedings, in particular in light of the principle ins 5(f) of the Act that a child's identity should be preserved and strengthened. Judicialguidance for the Family Court on applying principles of tikanga in that jurisdictionwould be beneficial.22 High Court decision, above n 3, at [70].23 L v K, above n 19, at [23]–[24].Discussion[32] We proceed on the basis that the decision about the school that Kara will attendunder s 46R of the Act is so intertwined with the decision about care arrangementsunder s 48 of the Act that the s 46R decision may be the subject of an appeal to thisCourt. It would be artificial and unworkable to separate the two issues.[33] However we do not consider that it is in the interests of justice to grant leaveto bring a second appeal in this case. We take as our starting point the importance ofmaking decisions in relation to the care of a child within a timeframe that is appropriateto the child's sense of time.24 We agree with the submission by the lawyer for Karathat there is a clear benefit to Kara in the proceedings ending, and this aspect of theconflict between her parents ceasing.[34] We do not consider that the matters raised by the mother are sufficientlycompelling to justify the grant of leave to appeal, against that backdrop.[35] It is not suggested that the High Court Judge erred in her assessment of theapplication of the principles in s 5(d) and (e) in this case. As we read her judgment,those were the decisive considerations. The Judge's consideration of Kara's culturalidentity was balanced, and did not affect her overall conclusion.25 The Judge'sreference to a tikanga Māori perspective went no further than emphasising the impactof changing the care arrangement on Kara's relationship with her sisters, her fatherand whānau.26 The Judge expressly refrained from reaching a final view on anyseparate application of tikanga to Kara's care arrangements for the purposes of herjudgment.27[36] It would have been preferable for the High Court Judge to expressly addresswhether the father's arguments about the relevance of tikanga Māori went beyondwhat could properly be received by way of submission and whether an application forleave to adduce further evidence on appeal under r 20.16 of the High Court Rules was24 Care of Children Act 2004, s 4(2)(a)(i); and see L v K, above n 19, at [24].25 See High Court decision, above n 3, at [68] and n 59.26 At [69] and see also at [70].27 At [70].required. A focus on whether a formal application was required would have ensuredclear differentiation between matters that could properly be addressed by way ofsubmission and matters of evidence. It would also have ensured explicit considerationof whether there should be an opportunity for the mother to respond to any newevidence that was admitted on appeal. And it would have ensured that reference wasmade to any new evidence if and only if the High Court was satisfied that it wasappropriate to grant leave to adduce that evidence.[37] We also accept the mother's submission that the Judge appears to have givensome weight to the father's submissions about Kara's identity as a tamaiti Māori.That is apparent from the passages at [68]–[69] of the High Court decision, set out at[15] above.[38] However, as already mentioned, it seems to us that the only weight ultimatelygiven to Kara's identity as a tamaiti Māori, and to matters of tikanga, was to confirmthe conclusions that the Judge had already reached by reference to the desirability ofcontinuity of care and the importance of family relationships. If the Judge did err inlaw by admitting further evidence, then any such error was not in our view material inthe sense that it may have led to a different conclusion.[39] We do not consider that this is an appropriate case for this Court to clarify thelaw in relation to adducing evidence about tikanga in Family Court proceedings.General guidance about reference to tikanga in court proceedings has recently beenprovided by the Supreme Court in Ellis v R.28 More specific guidance about tikangain Family Court proceedings is better left to a case where arguments founded ontikanga are material to the outcome of the proceedings.The need to focus on Kara's best interests[40] As the Family Court Judge said, both parents are doing a good job in theirparenting of Kara.29 Each parent loves Kara, and makes an important contribution toher wellbeing. But the conflict between them is clearly detrimental to Kara's best28 Ellis v R [2022] NZSC 114.29 Family Court decision, above n 2, at [57].interests. This decision should bring the current litigation about Kara's carearrangements and schooling to a close. We encourage both parents to put this disputebehind them and focus on the best interests of Kara, including by communicating witheach other respectfully and using their very best efforts to co-operate in relation to carearrangements for Kara. Her future happiness and wellbeing depend on their ability todo so.Result[41] The application for leave to appeal is declined.[42] There is no order as to costs.Solicitors:Family Law Specialists Ltd, Porirua for ApplicantOrd Legal, Wellington for Respondent