Bevan v Firth

[2023] NZHC 3887

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,

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-003039

[2023] NZHC 3887

IN THE MATTER

of the Judicial Review Procedure Act 2016

AND IN THE MATTER

of a review of the decision of the District Court dated 18 January 2023

BETWEEN

BEVAN and ROSSI

Appellants

AND

FIRTH

First Respondent

GIBSON and GIBSON

Second Respondents

Hearing via VMR:

21 December 2023

Appearances:

P J Dale KC for Applicants

Y Clarisse for First Respondent L Soljan for Second Respondent A Cooke Counsel for the child

Judgment:

22 December 2023

JUDGMENT OF ANDERSON J

This judgment was delivered by me on 22 December 2023 at 3.00 pm pursuant to Rule 11.5 of the High Court Rules 2016.

………………………………

Registrar/Deputy Registrar

B and R v F [2023] NZHC 3887 [22 December 2023]

Introduction

[1]    Karl turned four on 9 December 2023.1 Yesterday, I heard as a matter of urgency an appeal against a Family Court decision of Judge McHardy of 11 December 20232 in a submissions only hearing declining to vary contact orders made for him. The urgency arises because Karl is scheduled under the present orders to go from Auckland to Nelson on 28 December 2023 to stay with Mr and Mrs Gibson (his maternal grandfather and his wife) and their two primary aged children. The appellants, Messrs Bevan and Rossi, who are his two present primary caregivers, want this instead to only be a three-hour supervised visit.

[2]    The appellants’ grounds of appeal point to stated errors by the Family Court in considering the totality of the evidence; errors in the Judge’s characterisation of the evidence; and errors in his characterisation of the parties’ positions. However, it is fair to say that Mr Dale KC’s submissions for the appellants before me were in substance the same as before the Family Court:

(a)He says the application to vary was brought in response to an incident which led to Karl being harmed when he was in the care of the Gibsons in August 2023. He says it is common ground that there was an injury but there are competing versions as to what actually occurred. He says there is at least the possibility of deliberate harm and the events justify a variation.

(b)Mr Dale says that the outcome of the appeal does not turn on whether inflicting of the harm was accidental or deliberate. Rather, the issue is whether there will be further and unnecessary trauma caused to Karl by having to make a visit that all the evidence suggests he does not wish to occur.

[3]    The appellants’ position is supported by Ms Firth, Karl’s maternal grandmother. The Gibsons and counsel for the child oppose the appeal.

1      In this judgment the names of the parties and the child are anonymised.

2      District Court judgment [2023] NZFC 13817.

[4]    I indicated to the parties I would give my judgment today. The urgency means that I will express my reasons only relatively briefly for declining the appeal.

Background

[5]    Karl’s mother died after an unexpected stroke on 3 November 2022. Karl’s father is not known. Ms Firth (who is no longer with Karl’s grandfather) unilaterally placed Karl in the care of the appellants in Puhoi and moved there herself from Nelson. The appellants have no legal or biological connection with Karl. They plainly love him dearly. There is no issue that Karl is happy and well looked after in their care.

[6]    The issue of Karl’s long-term care is a matter of dispute between the appellants and the Gibsons, each of whom are seeking day-to-day care. A hearing to determine that issue has been directed by the Family Court but has still not yet been allocated. Interim contact orders were made by Judge Maude on 8 May 2023 and remain in place. The effect of these is that after a period of building up to this by increase in contact with Karl, the Gibsons are to have him to stay four days every month. There is a difference between Ms Firth (Karl’s maternal grandmother) and the Gibsons as to the extent of the latter’s relationship with Karl prior to their mother’s death. I do not need to delve into that, but it was squarely before Judge Maude, who made the interim care orders.

[7]    Karl has not in fact visited Nelson since the visit in August 2023 when the alleged incident occurred. This was the second time he had been for an overnight unsupervised visit with the Gibsons, following building up to this as outlined in the interim care orders.

Orders sought in the Family Court and on appeal

[8]    In the Family Court, the appellants initially sought a suspension of contact pending the outcome of a police investigation as to possible abuse by Karl's grandfather Mr Gibson, and an urgent hearing. By the time of the hearing the appellants instead then sought a variation of the present order so that Karl would no longer visit the Gibsons in Nelson and duration of proposed visits to Puhoi would be limited.

[9]    Mr Dale KC has provided a different proposal in this Court. The orders sought are (in substance) for a three hour supervised visit in Nelson in December 2023; in January, Mr Gibson would travel to Auckland to meet with Karl for three hours on both weekend days; in the last week  of February Karl and Mr Bevan would meet  Mr Gibson in Nelson for three hours on Saturday and five hours on Sunday; in March Mr Gibson would travel to Auckland to meet with Mr Bevan for five hours on Saturday and six hours on Sunday. The proposal runs out of stretch in April and would then require further agreement or order of the Court.

[10]   Mr Dale also referred to the benefit of Karl seeing a psychologist. No appeal point is raised by this, so I comment no further on it.

Approach on appeal

[11]   The appeal is brought under s 143 of the Care of Children Act 2004 (COCA). The appeal proceeds by way of general rehearing and the principles in Austin, Nichols & Co Inc v Stichting Lodestar apply.3  I am to consider the merits of the case afresh.  I must be persuaded that the decision appealed from is wrong, but the weight I give to the reasoning of the Court below is a matter for my assessment. The parties are entitled to judgment in accordance with the opinion of this Court, even where the opinion is an assessment of fact and degree.4

The Judgment under Appeal

[12]   The Judge put the issue for determination as whether Mr Gibson had abused Karl as alleged and if yes, whether Karl is unsafe such that the interim contact order must be varied or suspended. He also considered whether Karl would be traumatised by the present arrangement.

[13]   The Judge considered in detail the affidavits filed and submissions on them. In the interests of efficiency, I do not outline this in full. By way of truncated summary

3      Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [13] and [16].

4      The onus is on the appellant to demonstrate that the decision under appeal is wrong in some manner, but if my opinion is different from the conclusion of the Court appealed from then the decision is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ: Austin, Nichols & Co Inc v Stichting Lodestar, above n 3, at [16].

the Judge in substance accepted the submissions for the Gibsons and for counsel for the child in their characterisation of the evidence and the importance of placing statements made by Karl in context. These submissions were repeated to me, as were the appellants’ submissions.

Decision

[14]   The welfare and best interests of the child are the first and paramount consideration.5 The High Court is considering a different proposal for contact than was considered by the Family Court. However, it involves varying what I consider to be a very thoughtful assessment by Judge Maude of appropriate interim care orders which enabled Karl to maintain and/or develop a meaningful relationship with his grandparents in Nelson and their family there. That is in circumstances where conclusions on ultimate care are at large.

[15]   Karl’s welfare and particularly his safety are my first and paramount consideration. I have considered very carefully, as the District Judge did, the various statements Karl made including in the two videos made by the appellants.

[16]   In my view there was no error in Judge McHardy’s decision. I respect his evaluation as an experienced Family Court Judge in what is a situation of friction between parties who are competing for the care of Karl.

[17]My reasons for dismissing the appeal are as follows:

(a)There are two forms of evidence upon which the appellants relied. The first was a bruise on Karl’s arm. The second was the statements to various persons reported to have been made by Karl, then aged three. A number of them were made in circumstances where Karl has been subjected to leading questions.

(b)There is no doubt Karl had a bruise, but there is sensible and credible explanation for it from the Gibsons (given at a time they did not

5      COCA ss 4 and 5.

appreciate it would take on the significance it did) that there was an incident with Karl slipping on the stairs and needing to be grabbed by his grandfather. Mr Gibson has provided sworn evidence as to what occurred, and that Karl appeared to enjoy his time in Nelson very much. This explains why Mr Gibson walked away upset when Karl indicated to the contrary when Mr Bevan met him at the airport.

(c)Mr Bevan states that Karl referred to his grandfather as being "angry." There is a wide range of behaviours that a pre-schooler may interpret as an adult being angry, including completely trivial matters. Similarly, there are multiple innocuous reasons for a child of Karl’s age to express himself as “angry” without concluding this is behaviour arising from abuse. I do not think anything meaningful can be taken from Karl having not used that word before.

(d)So many of the statements made by Karl are contradictory both as to what happened, and where. I agree many are simply unreliable given the form of questioning including on videos that I have seen, which then may have become what Karl understood was wanted from him, and then which he repeated to others. In saying that I do not suggest there was a deliberate attempt at coaching.

(e)One scenario Karl said occurred was that he was hit on the plane. But as was submitted to the Judge:

It is difficult to envisage how the grandfather could have hit Karl in an enclosed space of an airplane, in the presence of other passengers and airline staff, in a serious enough assault to cause a bruise without any intervention by others, or without Karl becoming upset. It is said that fortuitously the grandfather took photos of himself and Karl on the plane just before landing, which photos give no indication of anything being out of the ordinary. Karl is shown leaning towards his grandfather with a smile and a separate photo smiling in a cheeky fashion. Further, when Karl returned to Mr Bevan he was not upset or crying. He was not holding his arm or saying it hurt. The claim that he had just been seriously assaulted is not consistent with those known facts.6

6      Above n 2, at [28].

(f)In all the circumstances, I think it unlikely that Mr Gibson deliberately harmed Karl. I am certainly not satisfied on the balance of probabilities of this. I do not accept Karl would be being placed at risk if the unsupervised visits resume. Mr Dale drew attention to statements made to daycare staff. I record I have given specific consideration to these, but they do not change my view. Notably, neither the Police nor Oranga Tamariki proceeded with further investigation of the incident. An Oranga Tamariki assessment concluded that the allegations had not been substantiated.

(g)I am persuaded by the submissions of Mr Cooke, as counsel for the child, on how to approach the views Karl expressed. Karl has a right to have his voice heard. His views are to be given due weight but importantly  in  accordance  with  his  age  and  maturity.7  I  accept Mr Cooke’s submission that views Karl expressed to Mr Bevan as to whether he enjoyed his time in Nelson and about not wanting to stay again are not necessarily to be taken at face value.

(h)Moreover, Karl’s views cannot be seen in isolation from the circumstances in which he lives and the context of the adult relationships around him which involves a contest as to whether he will live with the appellants or the Gibsons. The fact is that a three year old is not best qualified to judge his own best interests, and a child is frequently a casualty of adult conflict in terms of the external influences on their outlook. 8 The appropriate contact arrangements that are best for him involve an appreciation of the impact for future arrangements.9 I accept Ms Soljan’s submission for the Gibsons that the real risk facing Karl is that his relationship with his grandparents will be seriously undermined.

7      COCA s 6(1AAA); United Nations Convention on the Rights of the Child, article 12.1.

8      Brown v Argyll [2006] NZFLR 705 at [49].

9      Ives v Reaza [2018] NZHC 2318 at [28].

(i)Finally, the Judge was right in his conclusion that Ms Inge Bell’s opinion evidence should not be taken into account. She is a psychologist friend of the appellants who visited and expressed views (having met Karl briefly) on attachment, child trauma and whether Karl had been coached, without setting out whether and how the evidence is within her expertise. Contrary to Mr Dale’s submission, the Judge disregarded only her opinion evidence.10

(j)The Judge rejected that this is a situation where Karl will be traumatised if he spends time with his grandfather in Nelson in terms of the current order. I agree that the evidence to support that contention is far from compelling. I have taken into account Mr Dale’s submissions that there should now be a reset of the build up of contact with the Gibsons and the context of the trauma of Karl’s loss of his mother.

(k)The current interim orders have appropriate safeguards. They require Mr Gibson to refrain from drinking alcohol and also provide for what happens if Karl is indeed distressed by the visit. I agree with the Judge that it is not a fair or appropriate inference that Mr Gibson was drinking alcohol on the August visit, a suggestion  that is  firmly  denied  by Mr Gibson.

[18]   I am not persuaded that the decision appealed from is wrong. In my view the relief sought is not in the welfare and best interests of Karl. The decision of Judge McHardy correctly analyses the issues and reaches a conclusion that is warranted and through proper application of the law. Moreover, in my view the evaluation he made that there should be no variation to the orders was correct. I am also conscious that the Family Court was being asked to intervene on an interim basis, without testing of evidence and on limited information.

[19]   Mr Cooke closed his submissions by commenting that what is required is for the adults involved to ensure that Karl transitions between them in a way that supports

10     Above n 2 at [55].

him. I agree with this sentiment. As the Judge said,11 the expectation now is that the appellants will ensure that Karl is properly prepared for an enjoyable trip to Nelson.

[20]   The appellants have not been successful. The appropriate costs may be affected by limited steps being required in the appeal. There may or may not be costs issues that need to be dealt with arising from the appellants’ judicial review application that became redundant when leave to appeal was granted by the Family Court yesterday. In the circumstances, I will receive memoranda on costs. I request that the parties agree a timetable for this that accommodates their Christmas break plans and advise the Court of the timetable agreed.

Anderson J

Solicitors:    KooTelle Lawyers, Auckland

Fletcher Vautier Moore, Auckland Duncan Cotterill, Auckland

11     Above n 2 at [59].