Allen v Wade
[2018] NZHC 1880
•27 July 2018
NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION,
PLEASE SEE judgments/
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE
CIV-2017-488-000122
[2018] NZHC 1880
UNDER THE Care of Children Act 2004 IN THE MATTER
Of an appeal against the decision of Judge Clarkson in the Family Court at Whangarei dated 29 June 2017
BETWEEN
LUCY ALLEN
Appellant
AND
BRUCE WADE
Respondent
Hearing: 5 June 2018 Appearances:
Simon Jefferson QC and Pip Cobcroft for the Appellant The Respondent in Person
Usha Patel as Lawyer for the Child
Mathew Littlefair as Counsel Assisting the CourtJudgment:
27 July 2018
JUDGMENT OF MOORE J
This judgment was delivered by me on 27 July 2018 at 11:00 am pursuant to Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar Date:
ALLEN v WADE [2018] NZHC 1880 [27 July 2018]
Contents
Paragraph number
Introduction [1]
Background [6]
Judge Clarkson’s decision [27]
Subsequent events [40]
Approach on appeal [52]
Issues in dispute [54]
Was the Judge biased? [56]
Was there an error in the Judge’s reasoning? [73]
Did the Judge make factual errors? [82]
Should a psychological report have been ordered? [86]
Conclusion [105]
Result [106]
Introduction
[1] The parties are the parents of a 13-year old boy. When he was aged 16 months his mother, by subterfuge and without the consent or prior knowledge of his father, removed the boy and his older sister to the United States.
[2] Thus began a train of events which included further abductions, breaches of guardianship obligations, breaches of Court orders and misleading conduct. As a consequence of the mother’s actions the children were kept away from New Zealand and their father for over two years.
[3] Since that time the mother has consistently alleged that the father is violent and the boy is at risk in his care. More recently, the mother has repeated the claims in each of her numerous without notice applications for parenting orders. Consistently, various Courts have rejected those claims.
[4] It was the latest of these which came before Judge Clarkson for hearing in June last year. Following a four-day trial the Judge made interim orders granting day-to- day care of the boy to his father. She directed that there was to be no contact between the boy and his mother pending further order with a view to supervised contact commencing after a further directions conference. In the latter part of 2017 the orders were varied permitting interim supervised contact with the mother which was later varied to permit unsupervised contact every Saturday pending the resumption of the hearing and the making of final orders.
[5]The mother appeals Judge Clarkson’s interim orders.
Background
[6] The parents, Ms Allen and Mr Wade,1 met in the United States in October 1999. Ms Allen is an American citizen. By the end of that year she was pregnant with the couple’s first child, a girl Alex, who was born on 23 August 2000 and is thus now aged
1 All family names are fictitious in order to preserve the anonymity of the parties. The names used in this judgment have been agreed to by the parties.
nearly 18. Mr Wade was married at the time but that marriage was dissolved several months after Alex’s birth.
[7] The family moved to New Zealand in January 2001. By December 2003 Ms Allen was pregnant with their second child, the son Sam.
[8] In December 2005, 16 months after Sam was born, the first of three child abductions took place. Ms Allen told Mr Wade that she was taking the children to a barbeque. Instead, she boarded a flight to the United States. It was not until the following day when a mutual friend told Mr Wade that he learned his children had been removed from the jurisdiction.
[9] Mr Wade commenced child abduction proceedings in New Zealand. The National Centre for Missing and Exploited Children made contact with Ms Allen in April 2006. She was asked to return voluntarily. She refused and, instead, moved with the children to The Netherlands in June 2006.
[10] It was another two months before Mr Wade learned that his partner and children had moved. Further official efforts were initiated in an attempt to persuade Ms Allen to return voluntarily. Her response was that the return of the children to New Zealand would place them at grave risk of physical and psychological harm at the hands of their father.
[11] In January 2007 an Amsterdam Court rejected Ms Allen’s claims and directed the immediate return of both children to New Zealand.
[12] Ms Allen appealed the decision and then made arrangements for her parents to travel to The Netherlands for the purpose of accompanying the children back to the United States. She purported to justify this course by claiming it was necessary for Alex to return to the United States in relation to a nephrectomy.2 Alex’s kidney had in fact been removed two years earlier, apparently without the knowledge of Mr Wade. On 16 February 2007, Ms Allen was arrested and held in custody by the Dutch Police
2 There is some dispute as to whether Ms Allen claimed Alex’s return to the United States was to have a kidney removed or whether it was for the purpose of reviewing post-operative progress. In my view nothing turns on this difference.
on suspicion of violating Court orders and causing the “improper removal of minors from a parent”. She was released on bail subject to the condition that she not leave the jurisdiction and that she co-operate with the Dutch authorities in arranging for the return of the children to New Zealand. However, she also breached that order. In violation of her bail conditions she flew to the United States to join her children.
[13] Interpol then issued an international arrest warrant for Ms Allen. This led to a petition being filed in a State Court in mid-2007 seeking the return of the children. In July and August of that year the State Court heard the child abduction proceedings. The State Court determined:
(a)New Zealand was the children’s habitual residence;
(b)Mr Wade was the primary caregiver to Alex because Ms Allen was engaged in full-time employment;
(c)the children were wrongfully removed from New Zealand by Ms Allen;
(d)there was no grave risk posed by Mr Wade, contrary to Ms Allen’s claims; and
(e)there was no credible evidence Mr Wade was either abusive or neglectful.
[14] In January 2008 Mr Wade travelled to the United States to collect the children. As is apparently customary, he made an application for an interim parenting order and an order preventing the removal of the children from the local jurisdiction before his return to New Zealand. This application was answered by a without notice application for custody filed by Ms Allen.
[15] In April 2008 Ms Allen filed a further without notice application following an incident where it appears Mr Wade was unwilling to return the children to Ms Allen for a four day holiday as ordered by the Court. At the June 2017 hearing before Judge Clarkson, Ms Allen accepted she had misled the Court when she failed to disclose her
history of abducting the children,3 which led to Mr Wade having no free contact with his children for some time. A psychologist, Ms Trenberth, was engaged and following a hearing, judicial findings were made that the children were safe in their father’s care. Contact with Mr Wade was restored. In her report, Ms Trenberth observed that Alex’s emotional state was of “great concern” by reason of parental separation, the abrupt loss of contact with her father and the inter-parental conflict. Despite this she found there were no current indicators to prohibit an equal shared care arrangement. In other words, her professional opinion was that the children were safe in their father’s care.
[16] In a further report dated October 2009, Ms Trenberth reported that the inter- parental conflict had continued. She attributed the likely cause of the conflict to be the parties’ differing parenting styles; Mr Wade (and apparently Sam’s school) maintained a stricter approach while Ms Allen was more relaxed and at times disagreed with the school’s approach. Ms Trenberth was of the view that despite issues around Sam’s behaviour at school and at home, the children had benefited from the equal shared care arrangements. She observed that any unequal arrangement would likely distress the children further.
[17] In June 2010 Ms Allen made a further without notice application for parenting orders. Again, she alleged that Mr Wade engaged in physical discipline. She notified Child, Youth and Family (“CYFS”). In an interview, Mr Wade told CYFS he had hit Sam on the head and knuckles for not doing his homework.
[18] As a result of these disclosures the children were taken from Mr Wade’s care until July 2010 when supervised contact was ordered. In October 2010 the shared care arrangement was restored following a third report from Ms Trenberth.
[19] Following a hearing in October 2010 Judge Druce determined that the children were safe in their father’s unsupervised care.4 While expressing disapproval at Mr Wade’s disciplinary methods, the Judge found that the physical violence sat the low end of the scale. He also adopted Ms Trenberth’s views when he observed that
3 On the appeal the Judge’s finding of non-disclosure was challenged. In any event it appears Ms Allen did disclose the Hague Convention proceedings in an affidavit in January 2008 but not in respect of the April 2008 without notice application.
4 Allen v Wade FC Kaikohe FAM-2008-027-000011, 15 October 2010.
“probably the most significant harm was the consequential harm of disrupted contact between the children and their father”.5 At that time Alex expressed a strong desire to return to the shared care arrangements while Sam, then aged six, described his father as “really mean” but evinced a desire to spend time with him.
[20] Ms Allen made her fourth without notice application in May 2011. Sam had told the lawyer for the children he had been hit by his father. The lawyer contacted CYFS. Ms Allen’s application was refused. CYFS interviewed the children. Sam disclosed physical abuse at his father’s hands but Alex observed that her brother made things up and that their mother listened to him.
[21] At a substantive hearing in May 2012 Judge Maude noted that Ms Allen had “turned a corner in accepting the children’s need for a relationship with both parents”.6 But he did expressly observe in the following paragraph:7
“The Court, if proven wrong in that conclusion, will not be hasty to reach such a conclusion again, however, the current evidence, as against the evidence of the past, points to the conclusion I have reached.”
[22] A shared care arrangement was maintained. There matters sat until late 2014 when Ms Allen took Sam to her general practitioner (“GP”). He reported soreness in his legs, allegedly caused by the squats his father required him to undertake as punishment. In March 2015 a mediation took place between Ms Allen and Mr Wade. Apparently, this was because of concerns about physical discipline, and because Ms Allen wanted Sam to change schools. Mr Wade opposed this course because of the time and energy he and the school had invested in addressing Sam’s behaviour.
[23] In April 2015 Ms Allen took Sam to the GP again. This time a report was made to CYFS. As a consequence, CYFS issued a report which, in part, stated:
“There is a history of custody issues between the parents of these children. The mother of the children is a psychologist. The father of the children … is strict with his boys, but he is a good father.
There are two previous ROC for alleged physical abuse by father. The first investigation, father was given a verbal warning by the police. Parental
5 At [25].
6 Wade v Allen FC Kaikohe FAM-2008-027-000011, 6 June 2012 at [78].
7 At [79].
discipline. The second investigation the police closed the file due to insufficient evidence.
Mother is in a position to access resources. Mother needs to get on with it. The information does not indicate concerns or risks for the children.”
[24] In early November 2015 Sam apparently disobeyed Mr Wade’s instructions while he was at judo practice. Mr Wade told Sam he was to go to bed immediately. What then followed is disputed. But what is not disputed is that within minutes of Sam telling his mother of this incident when she picked him up from school and notified CYFS. By 4:20 pm she had made a complaint to the Police. She also prepared a trespass notice which effectively prevented Mr Wade from collecting the children that evening.
[25] This led Ms Allen to file a fifth without notice application on 4 November 2015 for parenting orders which was the foundation for these proceedings under appeal. As a consequence, Mr Wade was denied contact with Sam until Judge Clarkson made her interim orders in his favour on 29 June 2017. With the exception of one brief supervised visit Mr Wade did not see his son for a period of some 20 months.
[26] During this period, in April 2016, Judge Neal put in place an interim agreement which involved the discharge of all orders relating to Alex who by that time was almost 16 and establishment of a therapeutic intervention for Sam. Despite these efforts, the lawyer for the children advised that the Judge’s directions and the process which he had initiated had been undermined by reason of Ms Allen’s unwillingness for Sam to work with any therapist not practising “under a recognised registration body”. Thus the therapeutic process never commenced in respect of Sam although Mr Wade attended regular meetings with the therapist.
Judge Clarkson’s decision
[27] Judge Clarkson made her interim orders at the end of the last day of the hearing. Those orders have already been described but were obviously designed with a view to supervised contact with Ms Allen resuming in a staged fashion. The Judge also
directed further therapy with Mr Miller, the therapist. On 12 July 2017 Judge Clarkson published the reasons for her decision.8
[28] From the outset, Judge Clarkson acknowledged that Sam had expressed a strong reluctance to be his father. She thus set about to inquire into whether Sam and Alex’s estrangement from their father was as a consequence of abuse and fear or whether their relationship with him had been undermined to the point of total rejection due to the number of Court applications and other actions undertaken by Ms Allen to undermine Mr Wade’s parental role.
[29] Judge Clarkson concluded the children were safe in their father’s care for the following reasons:
(a)In each prior Court determination, including the child abduction hearings, Judges from various jurisdictions had repeatedly made findings that Mr Wade was a loving father and that there were few or no concerns about the children’s safety while in his care.
(b)In successive psychological reports, Ms Trenberth did not find problems with Mr Wade’s parenting, and accepted the overall data was not consistent with sustained abuse or violence. She also noted occasions when the children appeared happy to see their father. Her concerns for their psychological well-being stemmed more from the dysfunction of near-constant Court proceedings.
(c)There was also evidence from Mr Wade’s current partner about his parenting, and his relationship with her own children, which was positive.
[30] Rather than concluding Mr Wade posed any risk of safety, Judge Clarkson expressed, in positive terms, her assessment of Mr Wade as “a particularly insightful parent”.9 She referred to Mr Wade’s evidence on the benefits he had obtained from
8 Allen v Wade [2017] NZFC 5189.
9 At [110].
Mr Miller’s therapy. In cross-examination he frankly acknowledged deficits in his parenting and was able to express empathy with how Sam would feel:
“[The therapist] brought out to me actually something that I’ve been aware of but I don’t think I’ve ever put any weight on. Imagine if I was in [Sam’s] shoes and being used almost like – what do you call it – like his mind has almost become a playground for litigation. How would I feel about it and what he has to go through, actually, to cope with it all? So I think it has, rather than maybe worried about me, it’s allowed me to access maybe a side of [Sam] that maybe I haven’t been fully aware of, that I need to pay more attention to if I want to raise him to be the best man he can be.”
[31] It was this evidence which led Judge Clarkson to reject the suggestion that Sam’s feelings towards his father and his expressed reluctance to live with him, were “realistic estrangement or rejection”.10
[32] Judge Clarkson then listed eight factors which led her to conclude there was post-separation parental rejection or alienation. These were:
(a)the multiple international abductions by Ms Allen;
(b)other unilateral guardianship decisions made by Ms Allen regarding the children, including Alex’s kidney issues, baptism of the children and referral to let the children see a psychologist;
(c)the making of five without notice applications between 2008 and 2015, including four between 2008 and 2012;
(d)delays and omissions in Court proceedings caused by Ms Allen, including thwarting the therapeutic intervention, and not disclosing relevant facts in various proceedings;
(e)Ms Allen’s unquestioning acceptance of the children’s complaints about their father, and regular reporting to CYFS and Police;
10 At [114].
(f)Ms Allen’s excessive tolerance of Sam’s bad behaviour, taking his side even where the school was dealing appropriately with matters, and thus undermining the school and Mr Wade;
(g)Ms Allen interfering with and undermining Mr Wade’s relationship with the children; and
(h)other general disparaging remarks made by Ms Allen about Mr Wade, including remarks about his previous violent treatment of his former partner in the United States.
[33] Judge Clarkson also took into account Ms Trenberth’s expert view that there was a very high risk of alienation for the children given the above. She concluded:11
“It is clear that over the past 20 months since the children have been separated from their father, the situation has now moved to a full-blown rejection of him, which is not realistically based. The cumulative effect of all of the factors set out above has provided an overwhelming force to be faced by the children. The children have been unable to sustain a relationship with both parents in the face of these forces. In other words the children have been alienated from their father, or as I prefer to refer to it, this is a clear case of post-separation parental rejection.”
[34] The Judge then referred to the well-known principles relating to a child’s welfare and best interests as set out in s 5 of the Care of Children Act 2004 (“COCA”). She determined the principle that a child’s safety must be protected from all forms of violence was engaged by reason of the allegations made by Ms Allen against Mr Wade. The principle in s 5(b) was engaged insofar as Ms Allen’s conduct excluded Mr Wade from being involved in Sam’s care, development and upbringing. Section 5(e) was relevant because of the importance of Sam continuing to have a relationship with both parents and because it is the Court’s task to assess how the child’s ability to enjoy positive relationships with both parents is best promoted. Finally, Judge Clarkson referred to the principle enshrined in s 5(f), which relates to the preservation and strengthening of a child’s identity, including culture and language. She said Ms Allen’s conduct had excluded Mr Wade from being involved in Sam’s upbringing, particularly his connection with his cultural identity.
11 At [137].
[35] Ms Patel, appointed as lawyer for Sam, advocated for his immediate removal from Ms Allen. It was her submission that if Sam remained with his mother there could be no restoration of his relationship with his father.
[36] Judge Clarkson agreed. She referred to a number of risks associated with Sam remaining in the primary or shared care of his mother, namely further alienation and the loss of Sam’s relationship with his father and associated cultural connection, continued confusion of realities and, in the future, cognitive and emotional harm. She was significantly concerned by Sam’s school reports over the previous year, which revealed a repeated theme of his being disruptive in class and being unable to restrain himself from interrupting despite his best efforts to manage himself.
[37] Finally, Judge Clarkson accepted that Sam’s views about his father were inconsistent and, at times, confused. She accepted the evidence of Mr Wade’s partner that before November 2015, when the last without notice application was made, Mr Wade and Sam had a warm and relaxed relationship.
[38] The Judge also expressly addressed the weight which should be given to Sam’s expressed views. By reference to academic literature on parental alienation, more recently described as post-separation parental rejection, her Honour observed:12
“[Ms Allen] submitted that [Sam] ‘does not feel safe in the care of his father and he has given detailed and articulate reasons for his views.’ For the reasons I have stated I am unable to place any real weight on those comparatively recently, and in my view influenced, views.”
[39]Judge Clarkson concluded:13
“The father has clearly, some seven years later, developed considerable skills in [showing empathy with Sam]. The manner in which he gave evidence about his son, who is clearly quite a “character” was consistently with deep empathy for the child. [The] father was cross-examined for over a day, and the level of insight and understanding that he now appears to hold was striking. Indeed, I have rarely heard a parent give evidence in a manner which showed more insight and understanding of a child. The father gave credit to his sessions with Mr Miller for assisting him in developing empathy for [Sam’s] position between his conflicted parents. It is also fortunate that [Mr Wade] was the “stay at home Dad” during the pre-separation years, which has provided a
12 At [175].
13 At [184]-[187].
solid relationship base with his children and likely mitigated against the damage of separation from them for such long periods.
There is no doubt that for a time the father will be tested by [Sam’s] behaviour and will need considerable support to maintain a firm but understanding approach to his son.
He will have ongoing therapeutic support from Mr Miller and also from his partner [Mr Wade’s partner] who struck me as a straightforward, warm and intelligent woman who would act as a protective factor in a situation which will undoubtedly at times become fraught.
Children are entitled to be cared for by a parent who is sufficient mature and emotionally competent to tolerate, indeed encourage not just the presence, but the input of the other parent in the child’s life. I am satisfied that, at this point, [Mr Wade] is that parent.”
Subsequent events
[40] Ms Allen filed her leave to appeal on 9 August 2017. Leave was granted by Judge Clarkson on 28 September 2017.
[41] The related proceedings in the Family Court have continued in the interim and until recent events which are described below, Sam was seeing his mother every Saturday between the hours of 10:00 am to 7:00 pm.
[42] A Family Court hearing to review the effectiveness of interim orders and make final orders was scheduled for two days in April 2018. However, an application was made by Ms Allen seeking the Judge recuse herself. This was made on the basis that in January 2018 Judge Clarkson had engaged with the New Zealand Psychology Board to whom the Principal Family Court Judge had made a complaint against Ms Allen. The Judge disclosed that she had referred to herself as an “interested person” in a letter to the Board. As a consequence she recused herself.
[43] Thus the hearing in April was vacated and re-scheduled for two days in August before Judge Pidwell (who was assigned to case manage the matter to final disposition). At the hearing before me, counsel expressed some pessimism that the fixture could be maintained and, in particular, whether the two day estimate was sufficient given the necessity for further evidence and submissions.
[44] I heard the appeal on 5 June 2018. Mr Wade appeared in person. I asked Mr Littlefair, who has acted for Mr Wade on some aspects of the Family Court proceedings, to assist the Court in the event such a course became necessary and I record the Court’s gratitude to him for undertaking that role. I reserved my decision.
[45] On 29 June 2018 Judge Pidwell convened an urgent case conference as a result of developments which had taken place after I had reserved my decision on the appeal.
[46] Apparently on 19 June 2018, two weeks after the appeal was heard, Sam made disclosures to a social worker and the Police that Mr Wade had assaulted him. It is not clear what led Sam to be spoken to or how the Police came to be involved. It is also unclear where or when the alleged incidents occurred and what manner of force was applied. However, as a result of an evidential interview, the Police removed Sam from his father’s care and unilaterally placed him in the care of a school friend’s mother. Mr Wade was interviewed by the Police. Matters were then further complicated when Oranga Tamariki apparently applied on a without notice basis for a place of safety warrant for Sam on 22 June 2018. This was refused by the Family Court the same day. Then on 25 June 2018 Mr Wade was arrested and charged with two counts of assault on a child. His bail conditions contain a non-association clause effectively preventing contact with Sam and thus frustrating the interim day-to-day care orders made by Judge Clarkson. Significantly, the offence dates precede the hearing of the appeal. One charge alleges offending between 29 June 2017 and 12 August 2017 and the other between 1 February 2018 and 24 April 2018.
[47] Since 3 July 2018 Sam has been in the care of Mr Wade’s partner, an arrangement which appears to have been instituted by the Police and possibly Oranga Tamariki, without reference to the Family Court and, at least on its face, in breach of the extant Court orders.
[48] These were the events which led Judge Pidwell to convene the conference. By that time Mr Wade had filed a without notice application seeking to varying the interim parenting orders. Mr Littlefair, for Mr Wade, also made an oral wardship application and a habeas corpus application was signalled. Her Honour, noting the systematic delays in the Family Court to hear matters urgently and the High Court’s more
extensive jurisdiction, determined that the entire proceedings be transferred to the High Court on the basis that matters would be more appropriately and speedily dealt with in this Court.14
[49] The new proceedings were referred to me. A telephone conference was convened on 17 July 2018 at which I made various directions and signalled the likely appointment of the Chief Executive of Oranga Tamariki as an agent of the Court in the event of orders making Sam a ward of the Court. A hearing by telephone was directed to take place on 20 July 2018.15
[50] In the course of the conference on 17 July 2018 counsel were all agreed that although I was not functus officio, I should not re-open the appeal given the supervening circumstances. Counsel urged me to deal with the appeal on the basis of the material presented in argument at the hearing. I agree with counsel. To re-open the hearing will necessarily require evidence and further submissions, much of it hotly contested. Inevitably, the focus will be on the recent post-hearing events. It is not appropriate for this Court to undertake what would essentially amount to a quasi- criminal enquiry. The charges are yet to be determined. These issues are more appropriately dealt with by the Family Court at the resumed hearing by which time it is likely the criminal matters will have been determined. For these reasons I shall proceed on this appeal without consideration of any of the post-hearing events.
[51] At the telephone hearing on 20 July 2018 I made orders that Sam be made a ward of the Court and appointed the Chief Executive of Oranga Tamariki as the Court’s agent. Given this judgment is delivered shortly after that hearing I am satisfied that the proper course is for the proceedings to be transferred back to the Family Court. I can fully understand why Judge Pidwell made the orders she did. But circumstances have changed since she made her directions and I am not satisfied there is any proper basis for these matters to remain in the High Court. My reasons are that the wardship orders made under COCA will endure despite any change of jurisdiction, no habeas corpus application has been filed and the next step is for a resumption of the Family
14 Care of Children Act 2004, s 125(4).
15 Allen v Wade HC Auckland CIV-2018-404-001352, 17 July 2018 (Telephone Conference Minute of Moore J).
Court hearing before Judge Pidwell for the purposes of making the final parenting orders as directed by Judge Clarkson. That hearing should be determined by the Family Court and not this Court which will thus retain its first appeal Court status.
Approach on appeal
[52] This is a general appeal which, by virtue of the operation of s 143(4) of the COCA and s 127 of the District Court Act 2016, is by way of rehearing. The well- known principles set out in Austin, Nichols & Co Inc v Stichting and Lodestar apply.16 For the appeal to be successful, it is incumbent on the appellant to satisfy this Court that it should differ from Judge Clarkson’s decision. However, the Court is required to make its own assessment of the merits of the case and, while it is entitled to adopt the reasons of the first instance decision maker to assist in reaching a conclusion, the conclusion is one for the appellate Court. The weight placed on the reasoning of the first instance Court is a matter properly for the appellate Court. Duffy J put it this way:17
“I must accept responsibility for determining what is in the best interests of the child. It also means that I should not confine myself to focusing on whether or not the Judge has committed an error of law or some procedural error in reaching his judgment.”
[53] The principles relating to a child’s welfare and best interest found in s 5 of the COCA are particularly important in resolving any COCA proceeding.18 These are discussed more fully later in this judgment.
Issues in dispute
[54] Mr Jefferson QC, for Ms Allen, submits that the appeal should be allowed for the following six reasons:
(a)Judge Clarkson was biased, as demonstrated by her subsequent recusal, extra-judicial writing about parental alienation and her treatment of Ms Allen in the course of her evidence;
16 Austin, Nichols & Co Inc v Stichting and Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
17 B v B [2008] NZFLR 1083 (HC) at [44].
18 Kacem v Bashir [2010] NZSC 112; [2011] 2 NZLR 1.
(b)it was not in Sam’s best interests to be removed from his mother’s care and placed in Mr Wade’s care without contact with his mother;
(c)Judge Clarkson failed to have proper regard to Mr Wade’s historic difficulties with the children and how those aspects of his behaviour were causative of the rift between him and his son;
(d)Judge Clarkson assessed the evidence with an improperly narrow focus on alienation and failed to consider other hypothesis for the breakdown in the relationship;
(e)Judge Clarkson made numerous factual errors; and
(f)no current expert psychological evidence was received.
[55]I turn to consider each of these grounds in turn.
Was the Judge biased?
[56] Mr Jefferson submits that Judge Clarkson evinced bias against Ms Allen. In support of that submission he points to the Judge’s decision to recuse herself. He says that the Judge was correct in recusing herself; she, herself, accepted the correct legal test engages notions of perception assessed objectively. From the moment the Judge described herself as an “interested person”, the perception of independence was compromised and, as a consequence, coloured all aspects of her dealings with the file, including her decision on the interim orders. He did however accept that but for those words the grounds for recusal would not have been made out.
[57] Mr Jefferson also points out that Judge Clarkson has written extensively on the subject of post-separation parental rejection, advocating a change in parenting arrangements where a child is refusing to have contact with a parent.
[58]On the question of a what fair minded lay observer might conclude,
Mr Jefferson cited the following:19
“The fair-minded lay observer is presumed to be intelligent and to view matters objectively. He or she is neither unduly sensitive or suspicious nor complacent about what may influence the judge’s decision. He or she must be taken to be a non-lawyer but reasonably informed about the workings of our judicial system, as well as about the nature of the issues in the case and about the facts pertaining to the situation which is said to give rise to an appearance or apprehension of bias. Lord Hope of Craighead commented in Helow v Secretary of State for the Home Department that:
‘before she takes a balanced approach to any information she is given, she will take the trouble to inform herself on all matters that are relevant. She is the sort of person who takes the trouble to read the text of an article as well as the headlines. She is able to put whatever she has read or seen into its overall social, political or geographical context. She is fair-minded, so she will appreciate that the context forms an important part of the material which she must consider before passing judgment.’”
[59] As a matter of logic, every judicial ruling on an arguable point necessarily disfavours one party and may give rise to the appearance of partiality.20 It is implicit that the nature of judging will usually require the Judge to favour one party’s case over the other’s. Naturally, that cannot, in itself, found a complaint of bias. Not infrequently a Judge may indicate a preliminary view for the purpose of giving the parties an opportunity to focus their submissions and to prevent any subsequent criticism that they were not given a proper or fair opportunity to address the point.
Even judicial forthrightness in giving those views may be appropriate.21
[60] Mr Jefferson says that by reason of the Judge’s particular interest in post- separation parental rejection she approached her task in a binary fashion without having regard to other factors, particularly the desirability of having a more up-to-date psychological report. In other words, the complaint is that the whole of the Judge’s focus was on whether this was or was not a case of post-separation parental rejection. As a consequence, she failed to take into account other factors which may have explained Sam’s lack of engagement with his father.
19 Saxmere Company Ltd v Wool Board Disestablishment Co Ltd [2009] NZSC 72, [2010] 1 NZLR 35 at [5], citing Helow v Secretary of State for the Home Department [2008] UKHL 62, [2009] 2 All ER 1031 at [3].
20 Henderson v R [2016] NZCA 431, (2016) 27 NZTC 22-073 at [17], citing Muir v Commissioner of Inland Revenue [2007] 3 NZLR 495 (CA) at [98]-[99].
21 At [18].
[61] Mr Jefferson also referred me to several passages in the notes of evidence which he says reinforce his claim that the Judge was predisposed against Ms Allen. By way of example, when Ms Allen was cross-examining Mr Wade she asked the Court whether she could refer to a text message. This invited an inquiry from Mr Wade as to whether Ms Allen was permitted to introduce new evidence at that stage to which the Judge is recorded as saying:
“It’s not prohibited. It’s not generally approved of but it’s not prohibited but if [Ms Allen] wants to operate by ambush she takes her chances doing so.”
[62] On this point I agree with Ms Patel that simply because the Judge, some seven months after the hearing, referred to herself as an interested person does not necessarily lead to the conclusion that a fair minded lay observer would consider she was biased at the time she heard the case. Indeed, as Mr Jefferson accepted, but for the use of the particular words there would have been no basis for recusal.
[63] Furthermore, while the notes of evidence reveal that at times Judge Clarkson interrupted, from a reading of the evidence as a whole it cannot be said that she either descended into the arena or that her interventions were unfair and evinced a closed mind and a lack of preparedness to properly consider Ms Allen’s case. The example referred to earlier illustrates this point. In response to an inquiry from Mr Wade, Judge Clarkson explained not only the legal position but also the possible consequences of adducing new evidence without proper notice. In my view that was an entirely proper course for the Judge to follow particularly in a case where both parties were unrepresented.
[64] Furthermore, I do not accept Mr Jefferson’s criticism that the Judge effectively ignored the findings of other Judges involved in earlier stages of this family dispute. For example, Judge Druce in 2008 held that he could not discount Ms Allen’s account of violence against her and violence and threats of violence directed towards the children.22 In 2010 the same Judge commented positively about Ms Allen and less positively of Mr Wade.23 Judge Druce concluded that Mr Wade needed professional assistance to work through his parenting issues and to ensure he did not relapse and
22 Allen v Wade FC Whangarei FAM-2008-027-000011, 30 January 2008 at [10].
23 Allen v Wade, above n 4, at [29].
resort to physical threat or coercion. These comments were made following a two- day hearing.
[65] Judge Maude presided over a three-day hearing in June 2012. He observed that the parent who most impressed him as displaying the ability and willingness to co-parent was Ms Allen. In ordering a shared care arrangement, the Judge noted that until Mr Wade “moves forward encouraging the children’s relationship with their mother, the children will suffer”.24
[66] Plainly, neither Judge harboured any real concerns that Sam was at risk in the care of his father. Had that been the case orders for shared care arrangements would not have been made. Furthermore, it is noteworthy that Judge Druce recorded the children’s views; Alex expressed an eagerness to return to her father’s shared care while Sam, although describing his father as “really mean”, did wish to spend time with him. Interestingly, Sam accepted through his lawyer he would accept shared care but noted that his father should “go to jail” if he was mean. Sam was aged only six when he made that statement. Not long after, Ms Allen’s fourth without notice application was made following Sam apparently telling his lawyer he had been hit by his father. A CYFS notification was made. This was when Alex told CYFS staff that Sam made things up and his mother listened to him. All these matters were considered by Judge Clarkson in forming a comprehensive view of how matters unfolded.
[67] The Judge also took into account Judge Maude’s comments. It is noteworthy that her Honour referred to the Judge’s expressed optimism that despite the history, it seemed that Ms Allen had “turned the corner accepting the children’s need for a relationship with both of their parents”.25
[68] Again, the Judge was plainly aware of Judge Maude’s decision and reasons but recognised they represented but a snapshot in the evolution of the case, and the changing circumstances and attitudes evinced by the parties by the time she heard the matter.
24 Wade v Allen, above n 6, at [60].
25 At [78].
[69] Neither am I satisfied that the Judge’s extra-judicial writing on the topic of post-separation parental rejection adds materially to the claim of bias. Judge Clarkson’s contribution to the jurisprudence in this complex area is well known. However, a close examination of the judgment reveals that the Judge carefully worked through the background to the proceeding and came to the conclusion, as had previous Judges, that there was no proper or evidential foundation to support the proposition that Mr Wade presented a physical or other threat to his son. Amongst other conclusions she determined that Ms Allen’s conduct in agitating divisions between herself and Mr Wade posed a risk of causing psychological harm to Sam. Having done so, she correctly identified that this was a case of either realistic estrangement or post- separation parental rejection. Mr Jefferson criticises that approach as binary. However, it is difficult to see any realistic or logical alternative. Sam’s rejection and estrangement from his father was either a consequence of the father’s abusive conduct towards his son or Ms Allen’s divisive conduct. Into which category the conduct fell was always going to be determinative of the outcome. In my view the Judge’s decision reveals she approached this task in a reasoned, careful and logical fashion. I also happen to agree with the reasons she gave in coming to that conclusion.
[70] Applying the relevant test, a fair minded lay observer aware of the Judge’s extra-judicial work, her conduct at trial and the reasoning process she followed would not apprehend bias in her conclusion. That Judge Clarkson had particular expertise in the field can hardly provide a sound foundation from which to launch the criticism advanced. Indeed, the Judge was perfectly qualified to bring an informed and nuanced perspective to the determination of what has been, and continues to be, a fraught and vitriolic parental dispute which started when Sam was only 16 months old.
[71] Finally, and to the extent this point requires any comment on appeal, I note the criticism made of the appointment of Ms Patel as lawyer for the child, apparently at Judge Clarkson’s request. I am satisfied by Ms Patel’s account of how this occurred. There is nothing in this criticism which, presumably, could have been raised at the hearing but was not.
[72] I now turn to consider Mr Jefferson’s second, third and fourth criticisms. Because they are so closely linked I shall deal with them together.
Was there an error in the Judge’s reasoning?
[73] To a considerable extent I have already covered aspects of these points. I do not accept that the Judge simply used this case as an opportunity to test or ventilate her theories around post-separation parental rejection. To the contrary, her judgment reveals that she carefully worked through the historical background in substantial detail. That history, including various psychological reports, previous hearings and the evidence given at the hearing informed the Judge’s conclusion that Mr Wade was not only a good parent but that any concerns for Sam’s well-being stemmed from Ms Allen’s inability to share parenting arrangements with him.
[74] Significantly, the Judge considered the relatively contemporaneous evidence of the steps Mr Wade had taken, and continued to take, to address his parenting style and to ameliorate any identified deficits. It is apparent from the decision that Judge Clarkson was particularly impressed, not only by the cogent evidence pointing towards self-improvement but also the insight he demonstrated in the course of his evidence. These improvements need to be viewed in the context of the observations of the children’s previous lawyer who had submitted that Mr Wade would only be able to have a relationship with Sam if he undertook these steps. On the basis of the evidence before her, the Judge was satisfied that hurdle had been cleared.
[75] Having formed that view it was then appropriate for the Judge to focus on the question of how much weight should be placed on Sam’s rejection of his father. Given the centrality and paramountcy of the child’s welfare and best interests mandated by the COCA, Sam’s expressed rejection of his father was a pivotal issue which the Judge needed to resolve. I am satisfied she approached this task in a principled and logical fashion. She made express reference to the statutory mandate that a child must be given reasonable opportunity to express their views on matters affecting them and that any such views must be taken into account.26 She made reference to Ms Patel’s submission that a broader view of Sam’s views should be taken, not only at the time of the hearing but over the whole course of the litigation. The Judge referred to portions of the psychological report which noted Sam’s “quiet animation and confidence [when] talking about his father”. She pointed to references about Sam
26 Care of Children Act 2004, s 6(2).
wanting to see his father and Sam’s previous lawyer recording in 2012 that the boy was happy with the shared care arrangement. This was contrasted with events since November 2015 when the fifth and final without notice application was made by Ms Allen. By this time Sam was complaining to his mother about his father’s treatment and evinced no desire to have contact with Mr Wade. This level of inconsistency and apparent confusion contrasted with the evidence of Mr Wade’s partner who described a warm and relaxed relationship between father and son.
[76] In this context the comments of Fisher J in D v W are apposite.27 There his Honour observed that not all the expressed views of a child have equal validity and that:28
“Of special importance are external influences – conscious or otherwise – which might have distorted the child’s actual or professed outlook.”
[77] In Finn v Poole I discussed the approach to be adopted where there may have been influences imposed on children’s views.29 I placed “relatively little weight” on the opposition of a boy who was of similar age to Sam. I also referred to academic literature indicating that “many children secretly wish someone would call their bluff and insist they have a relationship with the parent they fear or hate”.30
[78]Judge Clarkson concluded her discussion on this topic in the following way:31
“Ms Allen submitted that [Sam] ‘does not feel safe in the care of his father and he has given detailed and articulate reasons for his views’. For the reasons I have stated I am unable to place any real weight on those comparatively recently and in my view influenced, views.”
[79] This was not only a view available to the Judge but, on my assessment of the evidence, the correct conclusion. The expressed views of Sam are in this context displaced by a host of factors indicating the source of his concerns were explicable by post-separation parental rejection rather than realistic estrangement. This was identified as a high risk factor by Ms Trenberth in her third report; she noted the
27 D v W (1995) 13 FRNZ 336 (HC).
28 At 349.
29 Finn v Poole [2015] NZHC 1362.
30 At [108], citing Fidler and Bala Children resisting post-separation contact with a parent: concepts, controversies and conundrums (January 2010) 48(1) Family Court Review, 47.
31 Allen v Wade, above n 8, at [175].
children had “been forced to cope with a high level of inter-parental conflict” which “was obviously a highly adverse psychological environment for them”. Various actions taken by Ms Allen since Sam’s infancy have contributed to what has since become fully fledged post-separation parental rejection. These include the international abductions, repeated and largely fruitless without notice applications to the Court, unquestioning acceptance of the children’s reports about their father, and other behaviours which undermined their relationship with Mr Wade. A powerful illustration is that the origin of Sam’s comment to his lawyer that if his father was “mean” he would “go to jail” appears to have been Ms Allen.
[80] Put another way, in terms of the principles relating to Sam’s welfare and best interests:
(a)Considering factors (b) and (c), through the lengthy history of this proceeding various Judges of the Family Court have sought to secure Sam’s best interests through shared care arrangements. Taking a step back, and looking at each incident as part of a wider narrative, it is clear that shared care arrangements have not served Sam well. Co-operation has not been forthcoming, and the evidence suggests it is the actions of Ms Allen which have undermined any progress on this front.
(b)As for continuity of care (factor (d)), as Judge Clarkson emphasised, throughout Sam’s life he has not experienced anything resembling continuity of care. Moreover Ms Allen, through her various without notice applications, has proven unable to provide Sam with that continuity.
(c)Given a shared care arrangement is not tenable, factors (a), (e) and (f) assume significance in determining which parent should be the primary carer. In terms of (a), the numerous interferences by Ms Allen in Sam’s relationship with his father give rise to appropriate concerns about Sam’s psychological safety in the care of his mother. As for concerns about Mr Wade’s preparedness to act as a mature and empathetic father, I am conscious that Judge Clarkson had the advantage of observing
Mr Wade give evidence including under cross-examination. She was particularly impressed by the strides he had taken, commenting that he presented as a particularly insightful parent. This militates against Ms Allen having primary custody.
(d)Factors (e) and (f) reinforce the conclusion that Sam’s welfare and best interests are best served in his father’s care. Because of the emerging post-separation parental rejection, ordering that Sam live with his mother risks cementing Sam’s rejection of his father. And having an ongoing relationship with his father is the best way to preserve and strengthen his cultural identity.
[81] Accordingly I agree entirely with the key conclusions reached by Judge Clarkson. Given the background, it was in Sam’s best interests to be removed from his mother’s care and placed in Mr Wade’s care without contact with his mother in the interim. In arriving at this conclusion, Judge Clarkson had regard to Mr Wade’s historic relationship with the children, but properly concluded the cause of a rift between Sam and Mr Wade was post-separation parental rejection rather than realistic estrangement. And given this rift was the central issue before Judge Clarkson and before me, it was and is appropriate to assess the evidence with a focus on whether the cause was post-separation parental rejection or realistic estrangement. On none of these grounds am I satisfied I should reach a different conclusion to Judge Clarkson.
Did the Judge make factual errors?
[82] This ground can be dealt with in short order. Mr Jefferson cited 16 examples in submissions of alleged errors of fact. These included the Judge’s record that Ms Allen did not advise the US Consulate that the children were returning to the United States for Alex’s kidney to be removed. Apparently she advised that the surgery needed to be reviewed. The Judge also made reference to the possibility of Alex being sexually abused by the paralegal Ms Allen married in or about 2006 when that allegation was not substantiated nor ever reported. Other errors complained of included disclosures to various overseas Courts, details of previous orders and the lack of evidence to support some of the Judge’s conclusions.
[83] Assuming for present purposes that these references were in fact wrong, the question for me is whether they were material to the Judge’s conclusions and whether, if those matters had been correctly addressed, a different result should now follow.
[84] To a considerable extent the alleged errors formed part of the broader narrative and, in any event, were not material factors in the Judge’s reasoning on the central issues. At the hearing no attempt was made to link the claimed errors to a consequential flaw in the Judge’s reasoning leading to the final result. The written submissions simply record that the Judge made numerous errors of fact or did not fairly contextualise the factual matrix other than in the broadest of ways.
[85] For reasons I have already stated, the Judge approached her assessment in a careful and principled way. I agree with the factors she weighed in arriving at her conclusion, and her essential evidential basis for weighing each of these factors. I am not satisfied any of these factors, or the Judge’s overall conclusion, proceeded in a material way on any of the errors identified.
Should a psychological report have been ordered?
[86] Mr Jefferson submits that Judge Clarkson erred in making findings regarding alienation without the benefit of a current psychological report. The most recent report was more than five years old at the time of the hearing. As a consequence, he submits the Judge inappropriately placed herself in a position of a psychological expert, thereby making improper and flawed findings.
[87] Section 133(6) of the COCA permits the Court to obtain a psychological report under s133(5) in the following circumstances:
“(a) the court is satisfied that the information that the psychological report will provide is essential for the proper disposition of the application; and
(b)the court is satisfied that the psychological report is the best source of the information, having regard to the quality, timeliness, and cost of other sources; and
(c)the court is satisfied that the proceedings will not be unduly delayed by the time taken to prepare the psychological report; and
(d)the court is satisfied that any delay in the proceedings will not have an unacceptable effect on the child; and
(e)the court does not seek the psychological report solely or primarily to ascertain the child’s wishes.”
[88] There is some force in Mr Jefferson’s submission that because Ms Trenberth was not called to give evidence and the amount of time which had elapsed since her last report, there would have been value in the Court having before it a more contemporaneous report.
[89] However, whether to order a s 133 report is a matter for the Judge’s discretion and there may be good reasons why, in a particular case, such a course is regarded as unnecessary.
[90] I discussed the approach to determining whether a psychological report should be ordered in Dvorak v Yamamoto.32 A psychological report may only be obtained where:33
(a)the information the report will provide is essential for the proper disposition of the application;
(b)the report is the best source of information having regard to the quality, timeliness and cost of other sources;
(c)the proceedings will not be unduly delayed by the time taken to prepare the report; and
(d)any delay in the proceedings will not have an unacceptable effect on the child.
32 Dvorak v Yamamoto [2017] NZHC 1591.
33 At [123].
[91] As these requirements are mandatory, a psychological report may only be obtained if all conditions are met.34 Moreover:
(a)There is no “use by date” for s 133 reports. When considering whether an updated report is required it is necessary for the Court to consider the s 133(6) matters. In practice this will usually require the Court to consider whether there has been any material change in the situation of the child or the parties since the first report was completed. Such a change might include variations in the care and contact arrangements or where it is apparent that the views of the children have changed in a significant and relevant way.35
(b)Also relevant is s 4(2) of the COCA which requires any person considering the welfare and best interests of a child to take into account the principle that decisions affecting the child should be made and implemented within a timeframe appropriate to the child's sense of time. This important principle is also recognised in s 133(6)(b), (c) and
(d) which focuses on timeliness and the avoidance of delay.36
[92] In the present case I am satisfied that the information a s 133 report could provide was not essential for the proper disposition of the application. My reasons follow.
[93] First, there was psychological evidence not only from Ms Trenberth’s three earlier reports37 but also from other sources. Some reports were reviewed and criticised by Dr Calvert who Ms Allen personally commissioned to assess Sam.
[94] I also note that at the pre-trial conference before Judge Clarkson on 30 May 2017 she advised the parties she intended to place reliance on Ms Trenberth’s reports. No opposition to this course is recorded and no request appears to have been made for Ms Trenberth’s cross-examination. Furthermore, Judge Maude had reviewed
34 At [124].
35 At [126].
36 At [129].
37 Ms Trenberth’s reports were dated September 2008, October 2009 and September 2010.
Dr Calvert’s criticisms and concluded that Ms Trenberth’s views and methodology were robust.
[95] Secondly, by the time of the hearing Mr Wade had not any meaningful contact with Sam for some 20 months. In those circumstances the effectiveness of a psychological report and, more significantly, any assessment of Mr Wade’s parenting skills and their effect on Sam would have been all but impossible.
[96] Thirdly, the ordering of a report would have further delayed matters by several months. The COCA mandates that any person considering the welfare and best interests of a child must take into account the principle that decisions affecting the child should be made and implemented within a timeframe that is appropriate to the child’s sense of time.38
[97] Fourthly, the hearing before Judge Clarkson needs to be placed in its correct procedural context. This was not a final disposition. The orders made by Judge Clarkson were interim and she contemplated a staged process of increasing contact between Ms Allen and Sam with a view to making final orders following the resumption of the hearing in August this year. I agree that before final orders were made it was essential that the Court and the parties receive the further information which Judge Clarkson made specific directions for.
[98] Finally, I note that a s 133 report prepared by Ms Lightfoot dated 30 November 2017 has since been received.39 Ms Lightfoot’s s 133 report was ordered for the purposes of the resumed hearing at which it was anticipated further evidence and submissions would be received. As part of this Court’s case management of the appeal Toogood J directed that Ms Lightfoot’s report was to be admissible.40 In a Chamber’s Minute of 28 September 2017 Judge Clarkson issued directions to Ms Lightfoot. This described the expert’s “brief” which was to involve the preparation of both an interim
38 Care of Children Act 2004, s 4(2)(a)(i).
39 This report followed a less detailed interim report dated 21 November 2017.
40 Allen v Ward HC Whangarei CIV-2017-488-122, 14 December 2017 (Telephone Conference Minute of Toogood J).
report and a final report. The relevant portion of the Judge’s directions is reproduced below:41
“1. To assess the effect of the current care arrangements for [Sam].
2.To assess, in the light of the history, the psychological safety of [Sam] in the unsupervised care of his mother.
3.In this regard, I would ask Ms Lightfoot to provide a brief interim report to address whether it is appropriate for overnight contact (from Friday after school until 7pm Saturday) to commence in 4-6 weeks’ time, or alternatively, whether contact ought to be more restricted until the process of reunification of [Sam] and his father is achieved.
4.To consider what longer term care arrangements will best meet [Sam’s] needs and welfare.
5.To recommend any future therapeutic intervention which can support the legal framework.”
[99] Although not before Judge Clarkson, the contents of the s 133 report are instructive and go some way to independently supporting the Judge’s findings. For example, Sam’s views regarding his father were not entirely negative. The relevant portion records:
“[Sam] told me why he appreciates that the Judge believes he needs to have a relationship with his father, he is not convinced – ‘I don’t think it really matters. You don’t need a dad to do things. You can do things with your mother. He [dad] has a completely different sense of humour and I don’t really like the things he likes’. [Sam] told me having said this, it was ‘nice’ that dad made a special effort for him on the day I visited. [Sam] was not completely negative about his father although he did name some areas where there is tension between them.”
[100] Ms Lightfoot described Sam as generally ambivalent about his situation, occasionally stating that he did not need a father and at other times recommending how the father-son relationship could be repaired.
41 Allen v Ward FAM-2008-027-000011, 28 September 2017.
[101] Ms Lightfoot was very critical that Sam’s counselling finished just as unsupervised contact with his mother commenced. She considered those circumstances may have compromised the good work which had led to an improvement in the father-son relationship. She recommended that Mr Wade and Sam be provided with further counselling, generally together, although she appreciated there might be a need for individual sessions at the beginning.
[102] Ms Lightfoot also recommended communication counselling to assist the parties in developing a positive co-parenting relationship prior to the commencement of overnight supervised contact and thereby avoiding individual regression to previous attitudes and beliefs and reduce the likelihood of further conflict.
[103] Finally, she concluded that the situation should be reviewed within a relatively short timeframe such as three months. This would permit an examination of counselling attendance and the monitoring of improvements in the father-son relationship. These recommendations are consistent with Judge Clarkson’s approach which involved a staged and managed process of re-establishing contact and care with Ms Allen.
[104] I regard it as noteworthy and consistent with Judge Clarkson’s findings that this report provides some optimism for the development of a father-son relationship.
Conclusion
[105] For these reasons I am not satisfied that this Court should come to a different decision to that reached by Judge Clarkson. In so concluding I have made my own assessment of the merits of the case although, in doing so, have adopted much of the Judge’s reasoning.
Result
[106]The appeal is dismissed.
Moore J
Solicitors/Counsel:
Mr Jefferson QC, Auckland Ms Cobcroft, Auckland
Ms Patel, Auckland Mr Littlefair, Kaikohe
Copy to:
The Respondent
4
0