STATUTORY RESTRICTION ON PUBLICATION UNDER S27A GUARDIANSHIP ACT 1968

IN THE FAMILY COURT AT CHRISTCHURCH FAM: 2002/009/001150 FP 009/1411/02 UNDER The Guardianship Act 1968

BETWEEN

A Applicant B Respondent

AND

Hearing:

13-14 May 2003

Appearances: Ms C A Reynolds for Applicant Ms F I O'Malley for Respondent Mr G Collin, counsel for child Judgment: 15 May 2003 ORAL JUDGMENT OF JUDGE C P SOMERVILLE

OPENING
[1] Boys, the reason that you are here today is for me to make a decision about

your future. The reason I have put you in the front row and the adults at the back is for me to signal to you that it is your future that is in debate and that it is a problem about you that I have been asked to solve. This is not about me refereeing a fight

between your parents. My job is to analyse the problem and make a decision that is in Cs best interests, taking into account his wishes having had them firmly expressed to me by Mr Collin, Ms F, and confirmed to me by C this morning. You

are here, D, because whatever I decide about C is going to affect you and the way it affects you could have implications for C. Really we all know that this is about the future for you two boys and the issues are pretty much the same for each of you, although not identical.
A V B FC CHCH FAM: 2002/009/001150 15 May 2003

Advantages of the Proposal [2] The proposal is that you would go to the United Kingdom at the end of June

and you would stay there until February next year. While you were there you would stay in your grandmothers accommodation, you would have a car supplied to you, and you would have the opportunity of going to see your aunt in the South of France. You would get to see your grandmother who is 87 and not in the best of health, and meet all the other members of your family on your fathers side. You would also be able experience life in the U.K. over a reasonable period, both in its summer and its winter. You would get to know your fathers family better than you would if you

stayed here, but most of all you would have the opportunity of playing soccer at a higher level than you are really able to play it here. [3] Your mother has told me that your grandfather was a very good soccer player I dont actually think

and that he has passed on his soccer playing genes to you.

there is such a thing as soccer playing genes. The genes that you have got that enable you to play soccer probably mean that you could also be successful rally car drivers or fighter pilots, but both of you have decided to follow in your grandfathers footsteps and play soccer as best you can. I know both of you have a dream of

being able to play at a professional level and I know that you, D, think that you are bigger than Beckham. That is what I have understood. [4] Now your mother tells me that you are actually both exceptionally good

soccer players. She tells me that you are both in representative teams and that in each of the teams that you are in, each of you is the best player. you are actually very good at it. That signals to me that

What you need is to be able to extend yourselves

by playing with boys who are better than you. That is not that easy in New Zealand, although I notice D that you missed out on the National Trials last year so there must be at least 11 others better than you, although I am not certain what position you play. [5] What is being offered to you must be very attractive and it is an opportunity

of a life time to develop the skills, which you clearly possess, and to help you realise a your potential. Those other things about meeting your family and getting to know

them could all be done at another time, but your father has tried to persuade me that now is the right time for you to go and do the soccer thing.

Disadvantages of the Proposal

[6]

I imagine that the two of you find it very hard to think of a reason why you I know your father cannot think of one, and I would be very

should not go.

surprised if you could, but there are some disadvantages. [7] What we are going to do is look at those disadvantages and see if we can do

something about them. If we can, then you should go to take this opportunity but if there are any particular disadvantages that cannot be overcome, then I am really going to have to make a difficult decision. Let us go through the disadvantages.

We will talk about what they are, see what are the options for dealing with each of the problems, and then look at it overall and decide whether or not you should go. [8] I said at the beginning that the issues are pretty much the same for both of

you, but there is one important difference and that is that you are different ages and at different stages. In particular, D, you have got pretty much to the end of your He has three more

education but C is only just starting his secondary education. important years of school ahead.

It is all very well to be good at soccer. It is

another thing to make a life time career at it so it is important that before you burn too many bridges you get the best possible education that you can. If you look

around at the All Blacks you will see that amongst them are University Graduates because they have realised that their playing lives are actually only short. Maybe

you can play soccer for a little longer than you can rugby, but when your playing ability wanes and other younger players become better than you, you have to find something else to do so that it helps to have other educational qualifications. [9] So while the time is right for D to go, it is not so right for C because going

now could have a major impact on his education. [10] Let us just think about the suggestion that he goes to school in England for

part of this year beginning in September and then comes back to school in New

Zealand in February next year. There are some major problems with that. First of all, he would be on holiday in England when he would otherwise be at school in New Zealand so that he would not actually do as much school work as he would if he stayed here. The second thing is the school work that you would do over there C would be of a different syllabus. You might well find when you got there that they were doing things that you had not got up to in school here and you might well struggle because the work was harder. Alternatively, it might actually be easier but when you came back to [ ] School in February you would find that you had

been marking time while the rest of the class had been marching on so that your school work next year would be that much harder for you. You would find that the rest of the class had left you behind and you were really struggling. [11] When you get to the U.K., it will be the school holidays and it wont be until

September that you go to school. That means that you wont meet the people that you will be going to school with until September and you will only be a classmate of theirs for three or four months. You will come from a different country and speak Sometimes that is a good thing, other

differently. You will feel like an outsider. times it is hard to cope with.

They will all know that you will only be there for a On the other

short time and they may not be bothered making friends with you.

hand, of course, they may decide to make the most of the short time that you had there - hard to tell in advance, but there is a risk that you could go to a school where you knew no-one, felt like a stranger, and were being asked to cope with school work that you could not understand not much fun. [12] The next problem is a financial problem. Will your father be able to support

you over there and enable you to do all the things that he is promising that you can? For example, C will need a school uniform for one term. I have no idea what that will cost but you can guarantee that it is likely to be three times the cost of a school uniform in New Zealand. When your two parents were living together they could Your

not afford to pay for school uniforms and had to borrow money to do it.

mother was working. She wont be with you in England and able to contribute to the financial cost of outfitting you so that is a problem. You will have school activities

to go on and soccer activities and expenses. It could be quite an expensive exercise and we know that your father is going to England with no money, only debts.

[13]

Another problem that you will have over there is the physical travelling You will be

involved in engaging in a lot of activities in a short space of time.

living in busy areas. You will, C, have school activities and soccer activities. Your father has said that he will be working probably 30 hours a week and you will find that you are having to undertake quite a bit of travelling each day by yourself from venue to venue. Who knows how much of that will be involved, how difficult it will be, and how well you will cope. [14] The next problem is the return home. I have been told that you boys are

going over as a package. Dad and the two boys like the three musketeers: one for all all for one!! But will it be the same in February when you are looking at the return. It may not be. D may well have got himself into a very good soccer team. He may well have identified for himself a career path in soccer in the U.K. He

would have to be pretty big-hearted and noble to sacrifice that so that he could come home and be with his brother in New Zealand. I think that is a sacrifice that is too big to ask D to make. father and C? Would D want to stay on his own in the U.K. without his

How would his father and C feel coming back to New Zealand

leaving D behind? And all of this right in the middle of the soccer season. Both of you boys would have to leave your team mates half way through the season and come back to cricket. [15] I cannot imagine that would be easy to do. I believe that, in February next

year when you come to face the return, you are going to be facing serious personal dilemmas. [16] The final problem is that your mother will not be there. She will not be there

to sort out the problems for you or with you. Up until now your mother has been the backstop for both of you boys in your lives, just like every mother is, and I know that both of you would miss her. She has played an important role in your lives up to now and she still has a role to play in the future. You are on the verge of

independence, especially you D, but there is still a place for a mother in everybodys life. You just look at your father, how important his mother is to him. He is 43 and she is 87. He has lived away from her for 20 years as an adult and yet he wants to be able to live near her in her later years. That is understandable. In fact your father

has felt very unhappy living away from her and the other members of his family for the last 20 years because his mother and his brothers and sisters are important to him.

[17]

You two are important to each other and your mother is very important to

you too. I know that both of you have been angry with her from time to time but you still have been able to see her. If you went to the U.K., you would not. Your

mother would not be there; your friends would not be there; there would just be you and your father. [18] Those are the problems and they are serious problems. The opportunities

sound good but there are still real problems that we need to address.

The Options

[19] [20]

I am going to put up the options on the board. Let us look at the education issue for you C. The options are: Dont go Have a term of school in the U.K. and then come back to [ ]School Delay Take a year off Dont come home

If you do not go, you would spend your education in New Zealand. If you delayed, you could do that and go at a time that is better in your education may be at the same stage that D is or your could go now and complete your education in the U.K.

You could forget about school while you are over there, have a break for a year in the middle of your secondary schooling, come back in a years time at a more convenient time, and start where you are now back in the 4th Form. It would mean that you would finish school later but that would be one of the consequences. Then there is the financial problem:

Dad could borrow money from the bank or from your Auntie E. Dad could work You could go later when dad had some money which he could save up for in New Zealand Dont go

The travelling problem could be solved by: Not going Choosing convenient schools and soccer Delaying until everyone thinks that C is capable of dealing with this on his own.

The Return: The option for this are: Dont go Delay Dont come home

Support from your mother. The options are: Dont go Mum comes too, You have contact with mum by telephone and e-mail so that she can provide long distance support.

Analysing the Options

[21]

Of all of those problems, the travelling problem is the least important and the

easiest to fix. [22] The problem about your mother is the most important problem and the most

difficult to solve. I want to tell you right now that your mother has told me that one of these options should not be taken into account. She has said to me that she does not want me to prevent you from going.

[23]

So why are we here? The answer is: because the problem is really hard and She does not know how to pick out the

your mother does not know the answer. right alternatives.

She said I dont know what to do because she cant see the

answer. Your father cant see the problem. I have got left with the job of having to make the decision. [24] For me, the advantages for you in going are very great and I would like to

sort out the disadvantages for you if I can. I can see solutions to all problems except one. That is the problem about your mother and this is why it is a real problem for me. [25] I know that both of you boys will miss your mother. What if your mother

died? There would be a huge hole left in your life where your mother used to be. What if she had a stroke and couldnt talk to you? She would still be there but you would not be able to talk to her. She would not be much use to you. Dont tell me that you dont love your mother. [26] You might tell me that you hate your mother. I wouldnt believe that. I

would accept that from time to time you have been angry with your mother. If she did not matter to you, you would not have been angry with her. You would not

have missed her. The fact that you have been so angry shows me how much your mother means to you and what a big gap she left in your life when she and dad separated. That emptiness that you felt might have felt like being abandoned but I can assure you, you were not. It just demonstrates that your mother was important and that you missed her, but it also shows how much you needed her and it is important that this gap gets filled. You cant grow up from here on without your

mother in your life. What you are wanting to do is go to England and make the gap bigger. [27] E-mails and phone calls wont do unless you can get back to the same Your mother There have

relationship that you had with mother before your parents separated. tells me that in the last month or so things have been getting worse.

been a lot of arguments and she has had to send you home on occasions. I am sure that you are unhappy about that, just like she is unhappy about it but there are things

that each of you can do that would make that improve. If that was all there was to it, then I could easily help because you and your mother would both want the same thing. However, I am not certain that your father wants it and he has a lot of power that I cant do anything about. [28] Your father says, and he has told me this a number of times, that he believes

that your relationship with your mother is very important. He said that he does not want to do anything that would harm your relationship with your mother and he would never stop you boys seeing your mother. say but I have got to look at his actions as well. [29] This is what your father did. a) At the end of last year or the beginning of this year round about the same time that he was considering taking you to England, he wanted D to give evidence in Court against his mother. An affidavit was That is exactly what I want him to

being prepared, I was told, which D would swear on oath and support by sitting in the witness box over there. b) Dad took C to the police station to make a statement which the police could use to prosecute mum for trespass. This occurred after I told

your father that it was unacceptable for you two boys to be involved. Even if you wanted to give evidence or talk to the police, he should not have let you. c) At the same time, he applied to the Court for an order that would prevent your mother from having any contact with you. [30] All of these things occurred at around the same time that he first dreamed up

the idea of you going to the U.K. You could say that when the Court would not give him a protection order preventing your mother from contacting you, when the police wouldnt prosecute, and when I would not allow Ds affidavit to be used, he decided to take you away to the U.K. where you could not see your mum. That is what your mother believes and she has got good grounds for believing it as I have just set out.

[31]

We have got another problem and it is about D because you are a bit of a

worry. You have got a fixation on learning the truth. You have strong views which you do not hesitate to express, often based on flimsy evidence. You are too ready to take sides in a dispute that is your parents and not yours and most often that is against your mother. I understand how it must have felt believing and being proud one day that you came from a happy home and having to confront the fact the next day that you came from a broken home. I am not going to go into the ins and outs

of your parents separation at all but let me tell you that they have had unhappiness in their relationship for 20 years. It has not been all joy and light. Your parents

have faced big problems which they have concealed from you so that you could have a happy childhood and a good upbringing. You have had that which is why you are the boys that you are today but that has made it very difficult for you to understand why your parents can no longer live together when no-one ever told you about the problems in the past. [32] I want to say, D, that the pursuit of the truth is a difficult thing because One of the questions that you are

sometimes the truth is too terrible to confront.

asking yourself is Is my father a drug addict or is my mother a liar? And that is a question to which you dont want to know the answer. There are lots of these

problems in life about parents. People who are adopted or whose sperm comes from a donors think they want to know more about their parents, but do children who have been adopted really want to know that their father was a rat bag and their mother was a prostitute or that their father raped their mother or that their mother is a lovely person who has had three other children but you are the child she didnt want. Those are questions you dont want the answers to. questions, D, that are dangerous to ask. [33] What you should be saying is I dont care what each of you did to each You have been asking

other. I dont want to know. All I want is to be able to love you and for you to love me. Thats all I want. I love you whatever youve done and I want you to love me for whatever I do. Dont go asking these questions. [34] Theres another problem too, D, about the way that you handle getting what I know you were really upset when mum did not come home but you

you want.

wrote a letter that demonstrates to me that you use bad problem solving techniques. You said in this letter:
If you dont ring me now then it shows you dont care about us anymore. If you dont ring me mum I wont be here tomorrow.

[35]

Those are threats and ultimatums.

You never get what you want with a

threat or an ultimatum because the person who receives them has two choices (1) give in and reinforce this behaviour so that it will continue for ever or (2) refuse to stoop to the demand. The latter course is the only option for parents so that when you said: If you dont ring me, I wont be here tomorrow your mother had a

duty, as a parent, not to ring you up. [36] There is a much better way, D, and that is to say: Mum I really want you to

come home. Ill do whatever you ask but please come home. Instead of saying to your mother If I cant go to the U.K. to play soccer, Ill never speak to you again, you should say What do I have to do mum to be allowed to go? [37] Whats happened is that your mother believes that if she does not let you go,

you boys wont speak to her again - that her relationship with you will die. She is paralysed with fear. She does not know what to do because that is the last thing she wants. So you have got a mother who wants you to take up this opportunity but

who also wants to continue to play an important part in your life and she does not know how to give you the first and keep the second.

The Decision

[38]

I am going to let you both go to the United Kingdom because I believe the

opportunity is too good to miss. There are two main reasons why I am letting you go: Your mother has persuaded me how good it is going to be for both of you. I know how much you really love your mother so that I dont believe that your relationship with her will be affected by you going to the United Kingdom.

I am going to have to take a calculated gamble with your father. He tells me that he is going to foster contact. He tells me that he is a man of his word. I am going to take him at his word. Over the next year, you two will be able to judge for

yourselves whether your father is a man of integrity and whether his word counts. [39] What I want is an improvement in the relationship between you and your

mother before you go. [40] C, from now on until you go, you are going to live with your mother three

days a week. I am going to ask Mr Collin to liaise between you and your parents as to which three days in each particular week would be best, because your mother has got work. You have got commitments too and I do not know what those all are so I cannot say which three days but I do know that three days in every week from now until you go at the end of June you will be living with your mother. [41] I cannot make any orders about you D because it is going to be up to you but

I would like you to spend some time with your mother too. It is entirely up to you when it is, how often and whether it is when C goes or not. It is entirely over to you but I would like to see that relationship improve. [42] To make certain that it does happen, I am going to issue a warrant so that if it

does not happen, a social worker or the police will make certain it does. That is how important it is but your father is shaking his head because he knows that will not be necessary. Are you telling me C that it wont be necessary? Will a policeman be necessary? (C indicates that it will not be necessary). [43] I would like your mother to try and go over to the U.K., either on a short-term

basis or a long-term basis over the next 12 months while C is feeling his way over there. I think that he would appreciate it if you did, but I understand what you told me yesterday about the problems. I think you need to do a bit of a problem solving exercise yourself in relation to those particular problems that you face to see whether or not there is a way of overcoming them but I am going to help you today by making some finance available to you, both for the ticket and also to help with those debts.

[44]

Now to some of the other problems. As far as your education is concerned,

C, I have to say that you cannot chop and change between school systems from one hemisphere to the other at such a critical time in your life. Your mother said, and I agree, that it has to be one system or the other. It cannot be both. Nor do I believe that taking a year off from school is a very good idea because it would just delay by a year you completing your schooling. It would also mean that you would be losing a year without any schooling at all right in the middle just when it is important so I have eliminated that option. [45] I have been asked to consider delaying your departure either for some months

or for a year but I have decided that that would affect D too much. He is right ready to go now and able to make the most of the opportunity that the family has presented. I would not like him to miss that opportunity so I believe that you should go now. [46] I do not believe that you should be made to come home in February. You

are going to be 16 in the middle of next year able to do what you want. If I made you come home in February it would cause huge stress for you, D, and your father in February and I know that as soon as you turn 16, C, you would be back on a plane to Britain with your education even more disrupted. So we all have to bite the bullet and say C is going on a one-way ticket. So that has also dealt with the return problem hasnt it the education and the return problem. [47] As far as the financial problem is concerned, your father says he has got

offers of work from family members. He says that he could work part-time. I want him to get a proper job. If I say to you that you are going over there now permanently, I am giving him permission to be there permanently too so that instead of looking for short-term employment he can look for long-term, better paying employment which will make him better able to meet your expenses. As a back-up,

it is unlikely that he will be able to borrow money from the bank unless and until he has got a job but you have an Auntie E who is very supportive and who has the means to help out financially.

[48]

As far as the travelling problems are concerned, you will need to choose a

convenient location in which to live. It may be that your grandmothers house is close to your school C and reasonably handy for where the two of you play soccer but we cannot say that right now. Her place is a temporary haven where you can live until you have sorted out where you have got to play and where you are going to school. When that has been sorted out and your father has got a job, you might be able to find accommodation that is more convenient which involves less travelling, or, you might decide, C, that your soccer is not quite as important this year as it will be in future years when you are a bit older. D has had to wait until he is 17 before he is allowed to go, C, and there is no reason why you cannot defer, maybe for a year, playing at the higher level that you would want. If you cannot find something conveniently enough located, that might have to happen but it is not the end of the world. D believes that he can get into the first division when he goes over to the

U.K. at 17 so you ought to be able to do something similar if you are going over at 15. [49] The last thing that your mother worried about, and I did not put on the board

as a problem before, was what if C missed his mother too much, or if things didnt turn out well, or if your father couldnt get a job, or you couldnt into your soccer, or you made no friends, or you were really unhappy, missing life in New Zealand, what would you do? You need an escape route. You have got one and I am going to give you another. [50] The escape route you have got is Auntie E. She loves you very much. She

understands your father and knows him as well as anybody. She also knows your mother and respects her. She understands what your mother has been through and of everybody she is the best person to see both sides. I am going to make a copy of the judgment available to her so that she can understand the reasons behind my decision and appreciate how much I am relying on her. [51] But I am also going to give your mother a return air ticket so that she can

come over and pick you up if necessary, and I am going to give you an open ticket to come home in case you have to.

The Orders

[52] (a)

These are the orders: There will be an order preventing Cs removal from New Zealand prior to 1 July 2003.

(b)

There will be an order authorising Cs departure from New Zealand on or after 1 July 2003 in the company of his father.

(c)

His father is to provide Mr Collin, no later than 4 p.m. on 14 June 2003, with four things: Evidence that he has purchased tickets enabling C to fly to the U.K. with his father. An open ticket for C to fly from the U.K. to New Zealand, that ticket to expire on 31 January 2004. An open ticket enabling A to fly return to the U.K., that ticket to expire on 31 January 2004. Proof that A has been paid the sum due to her by B in satisfaction of the relationship property litigation. That decision will contain an order that B pays A one half of the short-fall that is left after the family home has been transferred to her, and it is to be paid by 14 June 2003.

(d)

If B is unable to satisfy any of those four requirements by that date, the first two orders will lapse and on Mr Collins advice to that effect to the Registrar, there will be an order that C not be taken out of New Zealand.

(e)

From the making of this order down to the date of departure, A will have access to C three days a week, the details of which will be determined by Mr

Collin after consulting both parties and will be notified by him to the Registrar for incorporation in this order. (f) A warrant will issue authorising a constable or a social worker to enforce this access, that warrant to lie in Court and only to be uplifted on Mr Collins request. (g) After 1 July 2003, following Cs arrival in the U.K., access will occur: Every week by a phone call initiated by C at his fathers expense By e-mail connection established by his father in the United Kingdom and his mother in New Zealand. In the relationship property judgment there will be an

order that the computer presently held by B will be given to A so that she has the ability to link up by e-mail. Access will occur week about should A move to reside in the United Kingdom. In other words, if your mother went to live in England you, C, would live one week with her and one week with your father, or, if instead she goes to the United Kingdom on holiday, then she will have access for 75% of the time that she is there on holiday. (h) Leave is reserved to Mr Collin to apply on 48 hours notice for clarification of the terms of this order. (i) (j) Mr Collins appointment is extended to the end of 2003. I direct that a copy of this judgment be made available by Mr Collin to the boys Aunty E.

Conclusion

[53]

So you see, boys, it was a difficult problem. It was difficult for your mother

and it has been difficult for me but I have decided to let you go, subject to a number of conditions. It is now up to your father whether or not you go.

C P Somerville Family Court Judge

Solicitors: