NZ Family Court Precedents
Here are some examples of useful Case Law which you can use in your own hearing. The details are available from Butterworths, but you only need to submit the summaries shown here.
Shared Parenting
W (formally C) vs C (Family Court, Tauranga 14301337, Judge Inglis 27 June 2000) [Published: W v C (2000) NZFLR ] "In the absence of any factors compellingly requiring a different regime, it continues to be the legal responsibility of each parent on separation to recognise his and her continuing responsibility and obligation as guardian to co-operate with the other over all parenting issues in a mature and sensible way. That legal obligation, imposed on the parents as guardians, cannot be evaded by one party simply saying, without good reason relevant to the welfare of the child, that he or she will not co-operate in joint guardianship." The argument presented by the father, representing himself, was published in the Nov–Dec 2000 MENZ Issues, as was a summary of Judge Inglis' decision.
Custodial Parent's Relocation - Not In Child's Best Interest
There are many precedents which prevent a custodial parent removing children away from a Court's jurisdiction, and in some cases a reversal of custody was made.
Stadniczenko v Stadniczenko [1995] NZFLR 493 (CA), shows that a relocation by one parent which has the effect of disrupting the child's relationship with the other parent may not, in the welfare and interests of the child, be allowed to happen.
Ross-Taylor & Carson v Seldon (Family Court, Wellington FP 085/286/95, 18 Dec 1995) Judge Carruthers ordered that the boys be placed in the custody of their father. The children had been living with their mother, who wanted to relocate to Sydney. Judge Carruthers found that the mother had put her own interests before those of the boys. The mother had made access to the father difficult. The father was more likely to promote positive access to the mother. A change was needed for a more peaceful life for the children.
Pannett v Pannett (Family Court, Whangarei FP 888/191/88, 19 December 1991, Judge Robinson) the mother's move from Whangarei to Auckland was seen to be in her interests alone without consideration of the child's interests. Custody was awarded to the father.Logan v Logan (Family Court, Fielding, 18 June 1997, FP 015/67/95) Judge Walsh endorsed the views of Judge Inglis QC: "the custodial parent's freedom to regulate his or her own life must always be fettered by the paramount consideration of the child's welfare. The other parent's right to access must also be qualified by paramount consideration of the child's welfare." In any event, both parents owe it to the children to remember that they nonetheless tied together by their duties and responsibilities as parents. They are not free agents, free to conduct their lives as they please. They are controlled by what the welfare of their children requires.
S v S (Family Court Dannervirke FP 010/023/94, 30 Aug 1995), the mother had abducted the children from Dannervirke to Invercargill. Judge Inglis QC made it clear to the mother that her preferences and needs should be put aside and the children's needs for regular contact with their father given priority, and that the children's contact with their father won't be impeded to an unreasonable degree by distance and cost.
L v L (Family Court, Palmerston North, 11 May 1987, FP054/437/86), it has been suggested in Family Court that a parent who takes the children to another district without the consent of the other parent or the Family Court may not benefit from that situation. The Family Court cannot possibly condone arbitrary unilateral move by a parent, so that that parent is later able to benefit from a "fait accompli."
S v S (High Court Wellington, 25 March 1994), Justice Doogue overturned a Family Court Judge's decision, and ruled that the move by custodial mother from Auckland to Wellington, as primarily catering for the mother's, and not for the children's psychological needs. Doogue J emphasised that the children had already been through the trauma of parental separation from father. The further trauma of the move which diminished contact with their father was seen as detrimental to their welfare. Doogue J saw the children as being of an age where the physical presence of both parents was of considerable importance. Doogue's decision was upheld in the Court of Appeal, and the Court of Appeal even made it clear that the matter is not one of custodial parent's rights to live wherever he or she chooses to live, and emphasised that the only test is what is best for the child, that the children to have a continuing relationship with their father.
C v T-C (North Shore Court, FP 373/94, 2 March 1995) Judge Boshier points out, consistent with the Court of Appeal's approach, that a child's welfare may not be promoted by permitting parents who shared in a child's upbringing before separation, to be placed a distance apart.
G v G (Christchurch District Court, FP 009/1352/89, 2 December 1994) Judge Strettell disallowed the mother to move a way with a child as it would disrupt the child's relationship with his father.
Younger v Rowe (Family Court, Hawera, FP 021/193/93, 15 August 1995, Judge Inglis QC): the mother wanted to move with the children away from Hawera and from children's father to live in Hokitika. The mother argued that if she had to stay in Hawera for the children's sake, she would be unhappy and this would reflect on her care of the children. Judge Inglis QC ruled against the removal of children and custody was given to the father.
False Allegations & Obstruction To Access
Following are precedents where obstruction to access by a custodial parent or false allegations made by a custodial parent were not tolerated by Court. In most cases, the custody order was reversed, and the mother was ordered to pay for C4C's cost and s29A report):
Y v Y (District Court, North Shore, FP 74/90, 22 Jul 94) a mother deliberately obstructed an enforcement of access order. Judge Boshier explained that where welfare arrangement for children have been reasonably tested and orders made, it is "quite deleterious" to the children's welfare if there is no sanction for breach of the order. Judge Boshier further emphasised that a false message is communicated if the Family Court operates on a different basis than other Courts on the issue of contempt of court.
Fugle v Houlihan (Family Court, Fielding, 29 November 1991, FP 018/060/90, Judge Inglis QC) where a mother's uncooperative attitude to contact with the other parent was material in custody being awarded to the father.
Cooper v Cooper (Family Court, Dunedin, 31 March 1989, FP 012/366/87) Judge Blaikie: "The parties need not to be reminded of the approach of Family Court towards custodial parents who thwart the access rights of the other. In those situations the future custody rights of the unco-operative parents require further examinations."
Sharman v Sharman (1988) 5 NZFLR 91, the Judge warned he could reverse the custody decision if the custodial parent remained so opposed to contact with the other parent.
Ross-Taylor & Carson v Seldon (Family Court, Wellington FP 085/286/95, 18 Dec 1995) Judge Carruthers ordered that the boys be placed in the custody of their father. The children had been living with their mother. Judge Carruthers found that the mother had put her own interests before those of the boys. The mother had made access to the father difficult. The father was more likely to promote positive access to the mother. A change was needed for a more peaceful life for the children.
P v P (Family Court, Marton FP 034/13/86, 15 Sep 1987), the Judge says: "it turns out the allegations of abuse are wrongly and unjustly made, then the person who makes such allegations may be required to repay to the consolidated fund a substantial proportion of the expenses of c4c and other specialists."
Logan v Logan (1990) NZFLR 319: An allegation of abuse which is found to be false may mean that the Court is led to the conclusion that the reversal of custody order away from the person making the allegation to the person against whom the allegation is made is appropriate.
There are more precedents of false allegations outlined in the COSA
Information Kit:
False Sexual Allegations During
Child Access and Custody Disputes.
Parental Alienation
While Judges seem to studiously avoid using the term Parental Alienation Syndrome (first described by Richard Gardner), there has been some recognition of the phenomenon.
Shotter v Larkin (Family Court, New Plymouth, FP 043/009/92, 21 February 1995) Judge Inglis QC has said that: "one of the worst things one can do to a child is undermine a child's confidence in one of the parents."
Lynch v De Cleene (Family Court, Palmerston North, FP 015/16/90, 17 November 1992, Judge von Dadelszen) custody order should be awarded to a parent who is able to provide a balanced view of the other, which is more likely to promote in the child a positive image of the other, which parent will cooperate best with the other."
Following are some of the symptoms of Parental Alienation Syndrome cited in the Family Court (eg: Australian Family Lawyer (1984), "Brain-washing in Custody Cases"; and S v B (District Court, North Shore FP 102/93, 15 Feb 1994) The child offers the opinion of wanting less contact with one parent in a way which requires little or no prompting; the complaints have a quality of being rehearsed or practiced. The alienating parent, while "seemingly" acting in the best interests of the children, is actually working to destroy the relationship between them and the other parent. Most importantly, while the children will verbally denigrate one parent they retain an unspoken closeness and affection for that parent. However if the syndrome is allowed to develop unchecked, this can be all but erased by the alienating parent. The emotional upset of children following access visits is often interpreted as meaning that the child does not want access contact. But such responses from the child may be an expression of grief (yearning after the absent parent). It may really be the custodial parent who is upset by access and particularly by the child's enjoyment of it. This attitude may soon colour the child's experience, as the child may fear of recrimination from the custodial parent because of the enjoyment of the visit. Smiley, op cit, n22, p21; R v R (D166/75, 29 Sep 1977) as discussed by Tapp op cit, n20, pp 52~3; See also G v G (Family Court, Nelson 26 Mar 1982, 216/77).
Lack Of Stability & Appreciation Of What Is The Children's Interest
Stewart v Stewart (Family Court, Upper Hutt, 27 November 1991, FP 078/135/87, Judge Keane) custody was awarded to the father because of the mother's instability and negative attitude to access.
Jones v Poulter (Family Court, Marton, 9 March 1990, FP 034/001/90): a reversal of custody was made by Judge Inglis QC where there were grave doubts about the mother's capacity to make responsible decisions.
Bicultural Upbringing
Following are precedents supporting the importance of bicultural upbringing.
Nowakowsky v Bolstad (Family Court, Palmerston North, 26 June 1991, FP 054/336/90, Judge von Dadelszen): A parent who will enable the child to experience and keep contact with all aspects of the child's cultural background is likely to be given favourable custody consideration by the Court.
Rikihana v Parson (1986) 4 NZFLR 289: it is of critical importance to these children that their Maori heritage and values be firmly implanted as part of their lives particularly in view of the fact that the prevailing culture of NZ is still Pakeha.
Steed v Marino (1988) 5 NZFLR 602, when the importance of the child's Maori heritage was emphasised by the Court.
Reversal of Custody
[Although custody changed from father to mother in both these cases, we should be able to assume a lack of gender bias as per Guardianship Act Section 23.1.A]
Gabrielle v Bower (Family Court, Hastings FP 020/420/95, 15 Aug 1998) where Judge von Dadelszen changed the custody of two girls from the father to the mother (by uprooting from their familiar surrounding) for the following reasons: there is the exclusion of the mother in the children's lives; the disempowering of the mother; the need of the girls to spend more time with their mother; if there is a change to be made it cannot be gradual; one needs to bite the bullet and do it now completely; there is the attitude of the father to the mother - I think that is unlikely to change significantly and to the extent required; there is the fact that the mother will be more likely to promote the father in the children's eyes; arrangements for contact with a non-custodial parent will be easier if the mother is the custodial parent; allied to this there has been the ongoing undermining of the mother as a fit and proper person to be a mother when the evidence is that she can mother appropriately, notwithstanding lapses in judgment; there is the inability of the father to let go of the past; the father, unlike the mother, is unable to see where he has gone wrong.
G v G (Family Court, Bleinheim FP 006/032/88, 29 March 1994, Judge Frater), where the mother was described by the s29A reporter as: "more likely to promote access to the other parent should she be the custodial parent." The mother was also assessed as having "greater insight as to her own role in ongoing disputes and greater awareness of the impact of this discord on [the child's] well being and behaviour." The father was assessed as "over focused in a negative way towards [his former wife] and more likely to direct blame and feelings of malice toward her as an explanation for any problem with [the child's] behaviour.'
Shared/Joint Custody Despite Bitter Differences Between Parties
Neither parent can take it for granted, on separation, that he or she is entitled to assume sole possession and control of the children, for that would be to deny for the child the other parent's equal guardianship rights and in itself would be a misconceived view of parenting responsibilities. Interim orders for shared custody pending the substantive hearing of the merits are common (see M v W FLN-43 (2d); N v N FLN-63 (2d)) and usually considered an appropriate interim arrangement by Court, the advantage of it being that it maximises contact between each parent and the children, thereby avoids distortion of the relationships which the Court has to assess at the later hearing. Following are case laws where shared custody order were made despite bitter differences between parties:
Hoogwert v Thorne, District Court Thames, FP 875/70/94, 19 January 1996, Judge Whitehead made a joint custody order when there was psychologically abusive behaviour of the father on the mother. The reasons for the order was the importance to the child of his father's input.
Spence v Spence (1984) 3 NZFLR 347. This case in an excellent example of the Court ordering shared custody in spite of bitter differences between the parties. The comment is made that the parties "can hardly now call themselves husband and wife. But they remain parents. Each has a valuable contribution to make to the children's parenting."
Richardson v Simpson (District Court, Wanganui, 19 April 1991, FP 083/185/86), Judge Bremmer commented, "you don't have to like each other but you have to work together." Judge Bremmer provided a scheme of the children living on a turn about basis with each parent as a way of meeting the children's needs and resolving parental conflict.
Scott v Learmouth (District Court, Tauranga FPN 070/19/92, 7 March 1996) Judge Neale found that both parents were equally able to care for the nearly nine-year-old girl. There were communications difficulties between the parents with the mother alleging verbal and emotional abuse from the father. Despite these difficulties, it was clear both parents loved the young girl. Although the father lived in Wanganui and the mother in Tauranga, shared custody orders were made.
Other Information Kits for separating fathers.