Blair v Blair
[2012] NZHC 2957
•8 November 2012
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IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
CIV 2012-412-0051 [2012] NZHC 2957
BETWEEN BLAIR Appellant
ANDBLAIR Respondent
Hearing: 24 and 25 October 2012
Counsel: L A Andersen for Appellant
J E Beck for Respondent
A Chan, Lawyer for the Child
Judgment: 8 November 2012
JUDGMENT OF HEATH J
This judgment was delivered by me on 8 November 2012 at 2.00pm pursuant to Rule
11.5 of the High Court Rules
Registrar/Deputy Registrar
Solicitors:
Medlicotts, PO Box 1179, Dunedin
Jenny Beck Law, PO Box 5821, Dunedin
Counsel:
L A Anderson, PO Box 5117, DunedinA Chan, PO Box 1424, Dunedin
BLAIR V BLAIR HC DUN CIV 2012-412-0051 [8 November 2012]
The appeal
[1] On 16 March 2010, after Mr and Mrs Blair had separated, the Family Court made detailed orders that they share the role of providing day-to-day care for their four children. While those arrangements have continued in respect of the three younger children, an event occurred in early November 2010 that resulted in the estrangement of the eldest child, Samantha, from her father.1 Mrs Blair sought to vary the parenting order, insofar as it applied to Samantha. At that time, Samantha was 14 years old.
[2] The variation application came before the Family Court at Dunedin on 20
May 2011. After considering the evidence and submissions over the weekend, Judge O’Dwyer gave judgment on 23 May 2011. The existing order was varied by substituting, for the shared care arrangement, a series of orders designed to facilitate contact between Mr Blair and Samantha over a period of three months, with the goal of rebuilding a strong relationship between the two of them and developing an individualised care arrangement for Samantha. The orders were made on an interim basis and the application was adjourned for further consideration after expiry of the “trial” period.
[3] The parenting orders were reconsidered at a further hearing, held in November 2011, in light of what had occurred during the trial period. While Mrs Blair was supporting her daughter’s view that contact should grow incrementally and in accordance with Samantha’s wishes, Mr Blair proposed that the Court should intervene and direct a greater level of contact to take place. Primarily, Mr Blair’s position was that a greater period of ordered contact was required to respond to what
he regarded as attempts by Mrs Blair to alienate Samantha from him.2
[4] In a judgment given on 20 December 2011, Judge O’Dwyer discharged the
interim order and made a final order that varied the parenting order of 16 March
1 See para [10] below.
2 During the appeal hearing reference was made to a number of articles in which the term “post- separation parental rejection” appears to have been used in preference to “parental alienation”. See paras [33] and [34] below.
2010, to require Samantha to live in the day-to-day care of her mother, with limited contact between her and Mr Blair.
[5] Mr Blair appeals against the final parenting order made. The grounds of appeal reduce to two:
(a) Did he receive a fair hearing?
(b)Did the Judge err by giving too much weight to Samantha’s view that the Court not intervene to impose contact arrangements with her father that went beyond those identified in the interim orders of 23
May 2011?
Background to the application to vary the March 2010 parenting order
[6] Between March and August 2010, the shared parenting order in respect of Samantha appears to have worked well. It continues to work well for the three younger children. Mrs Blair accepts that Mr Blair is a good father. However, as a result of the events that unfolded after August 2010, Samantha’s commitment to the orders changed significantly.
[7] I summarise in broad and (hopefully) neutral terms the events that gave rise to the problem. I do so because there are some disputes of fact between Mr and Mrs Blair that have never been tested by cross-examination. In those circumstances, a relatively bland approach to the narrative is desirable.
[8] In early 2010, Mr Blair formed a committed relationship with his present partner, Sarah. She was living in Auckland. On a number of weekends, he had been travelling frequently from Dunedin to see her. Around August 2010, Mr Blair disclosed the existence of his relationship to his children, including Samantha. She was upset.
[9] Notwithstanding her reaction to that news, Samantha and her father continued with their plans to travel together to North America, in October 2010. This had been
arranged the previous June and was regarded by both Mr and Mrs Blair as a good opportunity to strengthen the father/daughter relationship. There is no doubt that Samantha found this event enjoyable. It was beneficial to the relationship, for both father and daughter.
[10] After their return from North America, in early November 2010, Mr Blair informed Samantha that Sarah was moving to live with him in Dunedin and that she was to have a baby, the following month. This news (and the timing of its communication) caused Samantha to rebel against her father. By the end of the month, it was clear that Samantha did not want to spend time at her father’s home (at which Sarah was, by then, living), as required by the shared care parenting order, and was actively rebelling against any suggestion that she do so.
[11] Mr and Mrs Blair’s evidence is at odds on whether an incident occurred on 2
December 2010, during the course of which Samantha believed that her father was “chasing” her as she left school. Whatever happened (and with whatever intentions), it is clear that Samantha found what she perceived to have occurred as both frightening and distressing.
[12] I accept that these events put Mrs Blair in an impossible situation. By 7
December 2010, she had reached the view that a variation to the existing shared care order was required. An application was made. Mrs Blair proposed that Samantha remain in her care until Samantha, on her own terms, was ready to re-establish contact with her father. Apart from the Christmas 2010 period, there was no contact of any significant nature until the Court made its “trial” orders on 23 May 2011.
The Family Court proceedings
[13] Prior to the initial March 2010 orders, Ms Chan had been appointed as Lawyer for the Child and a psychologist, Mr Gilmore, had been briefed to provide a report under s 133 of the Care of Children Act 2004 (the Act). Mr Gilmore’s report of 21 November 2009 was before the Court at the 20 May 2011 hearing.
[14] In her judgment of 23 May 2011, Judge O’Dwyer adopted the “trial period” form of contact, on the basis that Samantha was willing to re-establish contact with her father in that way. That proposal was supported by both Mrs Blair and Mr Gilmore. It appeared to the Judge that Samantha was genuinely prepared to get to know both Sarah and her new sibling, Matthew.
[15] Judge O’Dwyer developed detailed protocols for the contact arrangements, setting out her expectations of the parties as well as formal orders. The application was adjourned to a judicial conference for a Family Court Judge to consider what further steps should be taken, after receiving a report from Samantha’s lawyer, Ms Chan.
[16] At the second hearing on 23 and 28 November 2011, Mr Blair proposed orders that allowed a gradual (but Court-imposed) return to the shared parenting arrangement. On the other hand, Mrs Blair preferred continuation of a lesser form of contact that would increase as and when Samantha felt able to do so. Through Ms Chan, Samantha had expressed her desire to continue to see her father regularly but made it clear that she did not want to return to a formal shared care arrangement. While happy to visit her father’s home, particularly in the presence of her full siblings, she did not want to stay overnight.
[17] When giving judgment after the second hearing, it is clear that the Judge was
alive to Mr Blair’s claims of parental alienation. She said:
[8] Mr Blair’s response is that a more forceful intervention is required. He describes Samantha’s views as an expression of parental alienation which he attributes to the adverse influences of her mother and religious leaders in the [a church]. His proposal is that the Court refers Samantha to an educational programme, the Family Bridges Workshop in either New Zealand or the USA where this programme is available. Mr Blair is willing to meet the expenses of two therapists coming from the USA to provide the programme in New Zealand. The programme involves, from Mr Blair’s submissions, Samantha attending a three to four day workshop either in New Zealand or the USA with her father, and then being supported during a 90 day period of re-emergence in his home following that a return to shared care.
[18] The resumed hearing was confined to reading the affidavits that had been
admitted into evidence, some oral evidence from Mrs Blair and the parties’
submissions. There was no cross-examination. The Judge met privately with Samantha. In her judgment, Judge O’Dwyer expressed the “central question” for determination as: “What care arrangements are in Samantha’s welfare and best interests?” More specifically, the Judge posed the question: “What structure is likely to facilitate and promote the rebuilding of Samantha’s relationship with her father?”
[19] New evidence was before the Court to explain what had happened during the trial contact arrangements in place since May 2011. The Judge recorded:
[12] ... Overall Mrs Blair believes that progress has been achieved, although Samantha remains reluctant and there are still some problems with regards to contact.
[13] Mr Blair sees the progress as very limited compared to what was usual for the family and he considers that this is preventing Samantha’s adjustment to a more normal routine. In particular he sees Samantha’s reluctance to spend time in his home with his partner Sarah and their son Matthew, as being unhealthy and hampering Samantha’s adjustment.
[20] After considering the evidence and the parties’ submissions, the Judge concluded that it was not in Samantha’s interests “to return to a shared care regime similar to that provided for in March 2010”. She reasoned:
[50] ... To impose that would not reflect her developmental need to have substantially greater time in her mother’s care. It would not reflect her need to be in the care of the parent who currently has greater parenting skills and insight into her teenage development. Mrs Blair’s parenting is more subtle than Mr Blair’s, less controlling and less critical of Samantha. She demonstrates an authoritative style of parenting, which recognises Samantha’s need for increasing autonomy. She is able to yield to Samantha’s wishes appropriately yet provide a firm framework.
[51] Mr Blair is more authoritarian and inflexible. That is illustrated by his insistence that anything less than shared care is unacceptable. He is resistant to the advice of the Court-approved psychologist that a slow progression at Samantha’s pace is likely to lead to a better outcome. Instead he consulted an adult psychiatrist Mr Gale, who has never met Samantha, or her mother, read any Court documents or consulted any of the professionals involved in the case. Dr Gale’s opinion is expressed in very general terms I do not find it of assistance in the individualised assessment necessary in Samantha’s case.
[52] I find that it is in Samantha’s best interests to build on the current contact arrangement and gradually increase contact time, to include regular visits to her father’s home, and overnight contact opportunities.
[53] It is also in Samantha’s interests for her to spend some holiday time in her father’s company, which would be most naturally achieved if she
spent some time with her father, siblings and Sarah during the holiday breaks. She said that she wants holidays to be stress free. I consider that her visits to her father are likely to be less stressful and more natural if she spends some holiday time with her father when the other children are present. Because of her age and her other interests’ week-about care during the holidays is neither necessary nor desirable. She is at a developmental stage where she needs more autonomy and that needs to be respected by Mr Blair.
[54] Both parents and/or counsel submit that further counselling is necessary for both parents and Samantha to overcome the obstacles towards a more relaxed relationship between father and daughter. I agree that Samantha’s counselling with Ms Riley has reached a conclusion and that it would be in her interests for a referral to counselling with the psychologist Bernadette Berry, together with her parents. Mr Blair and Mrs Blair both speak highly of Ms Berry and what she is helping them to achieve in improving their communication It is logical to include Samantha in that process.
[21] Having expressed those views, the Judge concluded that a final parenting order was required, in preference to an interim one. The Judge was concerned to avoid the difficulties faced by Samantha who had been embroiled in litigation in the Family Court since her parents’ separation. As Judge O’Dwyer said: “She is tired of it, and finds it stressful”. She added:
[56] In addition continuing this litigation would be likely to impede progress in improving Samantha’s relationship with her father. Further litigation is likely to make Samantha more resistant rather than more accepting. In my assessment there is a much greater likelihood of the family therapy being successful when this litigation stops.
[57] The goal of the order that I will make is for Samantha to have regular one-to-one time with her father and regular time with her father, Sarah, Matthew and her siblings in her father’s home. I am hopeful that over time that will simply grow in a more natural way. That is dependent on Mr Blair, in particular, gaining much greater skill in relating to his daughter at this stage of her development and accepting that she is in a process of change.
[22] The Judge varied the parenting order so that the terms on which Mr Blair was to have contact with Samantha were spelt out in some detail.
Preliminary issues
[23] Two preliminary issues were signalled at the start of the hearing. Mr
Andersen, for Mr Blair, sought leave to adduce further evidence on appeal, in the
form of a report from Dr Hugh Clarkson of Auckland, an expert on the topic of post- separation parental rejection. The report attached a number of learned papers written by Dr Clarkson, either alone or in conjunction with his wife, Judge Clarkson of the Family Court.3 While Dr Clarkson had not interviewed Samantha and had limited access to evidence given in the Family Court, Mr Andersen submitted that the report should be admitted to demonstrate that submissions on alienation that had been made
by Mr Blair (in person) before Judge O’Dwyer had merit.
[24] Initially, that application was opposed by Ms Beck, for Mrs Blair. Ms Chan took a neutral stance. After discussions with counsel, it was agreed that the report could form part of the appeal record and provide a basis on which the claims of post- separation parental rejection could be assessed. By then, virtually all of the report was in evidence, having been put by either Mr Andersen or Ms Beck to Mr Gilmore, when he gave oral testimony. For those reasons, I ruled the evidence admissible. On the basis on which I admitted the report, Dr Clarkson was not required for cross- examination.
[25] The second issue concerned the question whether parts of an affidavit filed by Mr Blair in anticipation of the May 2012 hearing should have been excluded. The Judge directed that significant parts of the affidavit be excised, that the affidavit be removed from the Court file and a replacement affidavit filed containing evidence she considered was admissible. The grounds for ruling out parts of the affidavit were a mix of lateness, prejudice to Mrs Blair in not having time to respond, irrelevance and argumentative material.
[26] I gave a provisional indication that the evidence was not particularly probative and did not take the issue of alienation much further than the basic uncontested facts; namely, that Samantha had refused to continue with the March
2010 shared care arrangement following disclosure of Sarah’s pending move to live
3 Dale Clarkson and Hugh Clarkson “The unbreakable chain under pressure: the management of post-separation parental rejection”, (2007) 28(3) JSWFL 251, Dale Clarkson and Hugh Clarkson “The rights of children under the care of Children Act 2004, with particular reference to cases of parental alienation or intractable contact disputes” (2005) 5 NZFLJ 91, Dale Clarkson and Hugh Clarkson “Confusion and controversy in parental alienation” (2007) 29(3-4) JSWFL 265. See also R A Warshak “Family Bridges, Using Insights from Social Science to Reconnect Parents
and Alienated Children” (2010) 48 Family Court Review 48.
with Mr Blair in Dunedin and the imminent birth of their child. No meaningful contact resumed until after the 23 May 2011 orders. On the basis of that indication, the application was not pursued.
Analysis
(a) Unfair hearing
[27] The suggestion of an “unfair” hearing stems from the way in which the application to vary the parenting order was addressed. The May 2011 hearing was “solutions” based and endeavoured to craft orders designed to increase and improve Samantha’s then relationship with her father. Some oral evidence, together with cross-examination, took place at this hearing. Among other things, Mr Andersen submitted that the Judge had erred in making judgments about Mr Blair’s character
and parenting style, in the absence of cross-examination.4
[28] Mr Blair’s position is that, by the time the application was heard in November 2011, with limited oral evidence from Mrs Blair and no cross- examination, the focus had moved from when shared care should resume to if that should occur. In that sense, Mr Andersen contended that the process undertaken was flawed, in that it did not provide Mr Blair with the ability to put his case properly before the Court. Mr Blair’s main concern is that the way in which the hearing progressed meant that he did not have an adequate opportunity to put properly before the Family Court Judge his claim of parental alienation.
[29] Having reflected on the competing submissions, I have concluded that the question whether the first hearing had any elements of unfairness, for the reasons advanced by Mr Andersen, is now moot. That is because the nature of the present appeal requires me to reconsider afresh whether the Judge was right to make the
orders in issue,5 on a basis that includes consideration of updated evidence.
4 See para [20] above.
5 Austin, Nichols & Co Inc v Stichting Lodestar [2008] 2 NZLR 141 (SC) at paras [3]–[5] and
Kacem v Bashir [2011] 2 NZLR 1 (SC) at para [32] (Blanchard, Tipping and McGrath JJ).
[30] The appeal was heard about 10 months after judgment was given in the Family Court. Samantha’s views are now to be considered as those of an adolescent girl aged 15 and a half years, rather than one of 14 and a half years.
[31] In those circumstances, even if there were deficiencies in the way in which the points were argued before Judge O’Dwyer because of the absence of cross- examination on factual matters in dispute, they could have no bearing on my own assessment of the position, in light of changed circumstances. Having said that, the considered views of the Family Court Judge remain a significant factor to be taken into account on appeal.6
[32] In those circumstances, I proceed immediately to the critical issue on appeal; Mr Blair’s suggestion that he has been the victim of post-separation parental rejection.
(b) Post-separation parental rejection
[33] Ms Beck submitted that the way in which Mr Andersen raised the post- separation parental rejection point on appeal had the potential to change the nature of the case that Judge O’Dwyer heard. However, on closer analysis, I do not consider that it does so. The question is whether the principles of (what Dr Clarkson refers to as) post-separation parental rejection apply in this case, given the contemporary evidence that Samantha wishes to restore and rebuild her relationship with her father.
[34] In his report, Dr Clarkson said:
The issue of whether courts should ‘force’ children to have contact with the rejected parent has been the central concern of the parental alienation literature from the beginning. It can be studied to some extent and there are now a few reports in the literature of results of various forms of intervention. I know of no reports of serious ill-effects from increasing contact with rejected parents, apart from difficulties which can arise with the previously aligned parent. To summarise the literature, individual therapy of the child appears to do nothing to increase contact with the rejected parent. Therapy which involves increasing contact with the rejected parent as part of the intervention (such as Warshak’s Family Bridges Programme) does lead to improvement in contact with the rejected parent in a majority, but a return to
6 Kacem v Bashir [2011] 2 NZLR 1 (SC) at para [31] (Blanchard, Tipping and McGrath JJ) and
Austin, Nichols & Co Inc v Stichting Lodestar [2008] 2 NZLR 141 (SC) at para [4].
the status quo in a minority. The numbers studied are very small and follow- up time is short so it remains to be seen whether these initial results will be maintained.
What is significant about these findings is firstly that studies of the outcome of contact resistance consistently show that it is fairly persistent over time in the absence of intervention. Secondly, that the recent studies, which show some promise, all involve children who staunchly resisted contact and, although this is not spelt out, it is very likely that the courts were advised not to contemplate forcing contact.
I am not aware of any literature on the outcome of a court being more
‘insistent’ with older adolescents who are reluctant but not refusing contact. Neither do I know of examples in my own experience. It is probably fair to
say that many mental health professionals would give advice similar to Mr
Gilmore’s advice here. However, in my opinion this can leave a young person struggling to deal with a situation which he or she is not responsible
for creating and is not emotionally equipped to deal with. Many young
people will feel that they have no choice but to sacrifice the relationship with one parent as a short term coping strategy. The literature shows that the long term consequences of the loss of one parent are serious, a point I will not labour here since everyone, including Samantha herself, told Mr Gilmore that they are aware of this. Extrapolating from the literature it is my opinion that there is no reason to fear serious negative effects if the court was to push for more contact.
I am not in a position to give advice about the best way to proceed in this case. I think Mr Gilmore has made a clear case for his advice of an encouraging but not proscriptive approach. I hope this letter makes a case, theoretically at least, for a more authoritarian approach. In doing so, I am aware of a couple of issues. Firstly, the court may feel obliged to follow Samantha’s states wishes as a matter of law. This is something I will leave you to advise Mr Blair about. Secondly, I am anxious not to heighten conflict between the parties and I do not believe the situation is likely to be helped by having experts disagree. I would welcome an opportunity to talk with Mr Gilmore to see if we can arrive at a shared position if that would assist the situation.
(footnotes omitted and emphasis added)
[35] There is no doubt that, after the events of November 2010, Samantha did reject her father. She did so because of what he had told her about Sarah moving to Dunedin to live with him and the imminent birth of their child, coupled with the timing of that conversation, some eight months into the pregnancy. But, since the two Family Court judgments given by Judge O’Dwyer, Samantha has made efforts to re-establish the father/daughter relationship, in a manner that suggests that there is no present “rejection”. Nor is there any objective evidence that Mrs Blair did (or is doing) anything to alienate Samantha from her father. Mr Blair has genuinely (but wrongly) convinced himself that she has.
[36] However one characterises the conduct said to have given rise to post- separation parental rejection, there were in December 2011 (when Judge O’Dwyer gave her second judgment) and are now only two realistic options available to the Court. The first is to give significant weight to the views expressed by Samantha, through her counsel, for the purpose of determining that the existing contact arrangements should continue. The other is to increase the level of contact to reflect Mr Blair’s concern that less than 25% of time spent with each parent by the child
may result in deterioration of the parental relationship, long-term.7 Any order for
increased contact could be made with or without imposing Mr Blair’s request for an order that Samantha live in his exclusive care for a period up to three months, by way of “immersion”.
[37] During the course of the hearing, I suggested a third option. It related to the possibility of varying the existing contact order so that there were incremental increases in the time Samantha spends with her father, in the period leading up to her
16th birthday, in just over six months. It is fair to say that neither party embraced, or
showed any real enthusiasm for, that suggestion. I indicated that, in those circumstances, I would not consider that possibility further. It follows that the appeal turns on which of two stark options should be preferred, with the onus resting on Mr Blair to demonstrate why the lower Court decision should be reversed.8
[38] The paramount consideration is Samantha’s welfare and best interests.9 That must be considered in the context of the particular circumstances with which the Court is concerned.10 A parent’s conduct may only be considered to the extent (if any) that is relevant to the child’s welfare and best interests.11
[39] The principles relevant to an assessment of the child’s welfare and best
interests are set out in s 5 of the Act. None of those particular factors assume any
7 Based on L Nielsen, “Divorced Fathers and Their Daughters: A Review of Recent Research”
(2011) 52 Journal of Divorce and Remarriage 77.
8 Austin, Nichols & Co Inc v Stichting Lodestar [2008] 2 NZLR 141 (SC) at para [14].
9 Care of Children Act 2004, ss 3(1)(a) and 4(1).
10 Ibid, s 4(2).
11 Ibid, s 4(3).
greater weight than others in determining where the best interests and welfare of the child lie.12
[40] As Samantha is now aged 15 and a half years, the underlying purposes of the Act and the increased decision-making of a child expected as she approaches the age of 16 years must be considered. In Hawthorne v Cox,13 I discussed this issue, in response to a submission that the Act had placed greater emphasis on the rights of a child than had the Guardianship Act 1968, which it replaced.
[41] The following principles can be drawn from Hawthorne v Cox:
(a) A parent’s interest in the development of his or her child does not amount to a “right” but is more accurately described as “a responsibility or duty”.14
(b)The younger the child, the more likely it is that decisions about important matters will need to be made by his or her guardian. As the child gets older and becomes more mature, the guardianship role changes to that of an advisor or a counsellor, endeavouring to assist
the child to make good decisions.15
(c) This gradual reduction in parental control is reflected in other areas of the Act that deal with guardianship and parental obligations. Section
34(2)(a) of the Act forbids a Court exercising jurisdiction under s 31 from directing any child who is of or over the age of 16 years to live with any person “unless the circumstances are exceptional”.16 Section
50(1) provides that a parenting order determining the person or persons who have the role of providing day-to-day care for a child of or over the age of 16 years ought not to be made, unless “special
circumstances” exist. Section 50(2) states that any parenting order
12 Kacem v Bashir [2011] 2 NZLR 1 (SC) at paras [8] (Elias CJ), [19]–[28] (Blanchard, Tipping and McGrath JJ) and [47] (William Young J).
13 Hawthorne v Cox [2008] 1 NZLR 409 (HC).
14 Ibid, at para [61].
15 Ibid, at para [60].
16 Ibid, at para [62].
made in respect of a child will expire on the child attaining the age of
16 years, so far as it relates to the provision of day-to-day care. In conformity with s 50(1), the Family Court may “in special circumstances” direct that the existing day-to-day care orders continue.17
(d)Those provisions, like those relating to the giving of consent to general medical procedures,18 support the view that a child who has attained the age of 16 years can make important decisions, such as where he or she should live and how he or she is to be educated, with advice from a guardian. Viewed collectively, these provisions suggest that once a child has attained the age of 16 years, he or she is not generally subject to parental direction on such matters. They can be contrasted with s 16(2) of the Act which includes, under the definition
of “important matters affecting the child”, changes to the child’s place of residence that may affect his or her relationship with his or her parents and guardians and medical treatment for the child that is not routine in nature.
(e) The Act also recognises that parental direction is not absolute in respect of matters falling outside the ambit of those provisions. Section 46(1) provides that any child of or over the age of 16 years who is affected by a decision or refusal of consent by a parent or guardian in an important matter can apply to a Family Court judge to have that decision or refusal reviewed. Further, beyond the Act, there are other statutory indicators of a less directive parenting approach to
older children.19
(f) Generally, duties, powers, rights and responsibilities of a guardian end when the child attains the age of 18 years (s 28(1)(a)).20
17 Ibid, at para [66].
18 Care of Children Act ss 34(2)(a), 36 and 38(1).
19 Hawthorne v Cox [2008] 1 NZLR 409 (HC) at para [67].
20 Ibid, at para [65]. Exceptions include cases where the child marries or enters into a civil union or forms a de facto relationship prior to the time at which he or she turns 18 years (s 28(1)(b) – (e)). However, s 46A(1) of the Act provides that a child aged 16 or 17 years, who wishes to obtain
[42] These principles are consistent with both the conclusions of empirical research relating to the maturity of children,21 and the United Nations Convention on the Rights of the Child, which recognises in arts 5 and 14.2 that the responsibility or duty on parents to make decisions for and about their children is circumscribed by the “evolving capacity of the child”.
[43] In addition, Samantha’s views are important. Section 6 of the Act requires a child who is subject to Court proceedings to be given reasonable opportunities to express his or her views, and for any views which are expressed to be taken into account in the final decision.22
[44] Ascertaining views, taking account of views and placing weight on views are three distinct steps.23 The weight to be given to a child’s views will vary according to the child’s stage of development and the particular circumstances of the case.24 In contrast to the position under s 23(2) of the Guardianship Act 1968, the words “age and maturity” do not appear in s 6. In the 1968 Act those words were used to assist a
Court to determine the weight to be given a child’s “wishes”. As Professor Mark Henaghan has observed, reference to age and maturity were removed because of the risk that young children’s views would be dismissed as “immature”, without the Court listening to them carefully and seeing whether or not they represent significant feelings for the particular child.25 Because of the large variations in developmental maturity of different children of the same age, assumptions about a child’s maturity and the weight to be given to his or her views on the basis of the child’s age are to be
avoided.26 The focus of the Court’s inquiry is on the particular child, in his or her
consent to his or her de facto relationship, must obtain the express written consent of each of his or her guardians.
21 See the useful discussion of such issues in Keating, “Reckless Children?” [2007] Crim LR 546, arising out of R v G [2004] 1 AC 1034 in which a trial judge had directed a jury, on an arson charge, that the age or maturity of two young boys was irrelevant to the question whether then
had been reckless about the risk of fire from their actions. See also Churchward v R [2011]
NZCA 531; leave to appeal to the Supreme Court refused: [2012] NZSC 25.
22 Care of Children Act 2004, s 6(2).
23 Antoinette Robinson and Mark Henaghan “Children: heard but not listened to? An analysis of children’s views under s 6 of the Care of Children Act 2004” (2011) 7 NZFLJ 39 at 43.
24 Brookers Family Law - Child Law (online looseleaf ed, Brookers) at [CC6.17]. See also B D
Inglis New Zealand Family Law in the 21st Century (Thomson Brookers, Wellington, 2008) at
317.
25 Mark Henaghan “Case note: Children’s views – two steps forwards, one step backwards” (2006)
5 NZFLJ 154.
26 Antoinette Robinson and Mark Henaghan “Children: heard but not listened to? An analysis of
particular circumstances, including his or her actual degree of maturity. While maturity will often be a product of age, that is not always the case.
[45] In this case, if Samantha’s wishes were to be followed:
(a) There is a risk that she will not actively endeavour to strengthen the relationship with her father. My concern about a risk of that type is borne out of Mr Gilmore’s evidence that, during the “trial” period of contact not as much progress was made in rebuilding the relationship as he had hoped.
(b)It provides an opportunity for Samantha, obviously an intelligent and perceptive young woman, to rebuild the relationship at her own pace. My impression is that, left to her own devices and without the distractions of continuing Court proceedings, she will make a real effort to do so.
[46] On the other hand, an imposed solution is likely to:
(a) Compel Samantha to spend more time with her father, whether or not she wishes to do so. While, from the evidence, I believe that she will comply with any Court order, I doubt that she will be sufficiently co- operative to make the arrangements work constructively. That is just an aspect of being a teenager.
(b)Carry a real risk of rebellion by Samantha against her father or, worse, a further rejection of him. This possibility is particularly acute given Samantha’s view that this appeal is doing no more than to prolong a legal process of which she has grown tired and resentful.
(c) Decrease the time that Samantha would spend with her mother and other full siblings. While it is not to be presumed that Samantha
children’s views under s 6 of the Care of Children Act 2004” (2011) 7 NZFLJ 39 at 40. This article critiques C v S [2006] 3 NZLR 420 (HC), in which the Court emphasised the need to take account of both age and maturity of a child in determining what weight to give to a child’s views.
should be placed with her mother, based on considerations of age and/or sex,27 in focussing on her particular circumstances it remains necessary to take account of her age, development and present needs. Samantha’s age suggests that this is a time at which she is more likely to be in need of maternal guidance.
[47] Either option may (or may not) result in an improved relationship between Mr Blair and Samantha. While any predictive assessment carries a risk of being wrong, I conclude that there are three reasons that suggest that to follow Samantha’s wishes, as did Judge O’Dwyer, is the better course. They are:
(a) Application of the principles of the Act (including those relevant to s 6, as well as those discussed in Hawthorne v Cox)28 indicates that greater weight should be given to Samantha’s views as she approaches
16 years. In my view, there is a greater prospect of the relationship being re-established if Samantha is left to develop that process at her own pace, as opposed to being compelled to live with her father against her wishes.
(b)Dr Clarkson does not reject Mr Gilmore’s view that Samantha’s wishes are to be preferred.29 While Mr Gilmore (who supports the present orders) has had extensive contact with the family and understands its dynamics, Dr Clarkson acknowledges that he is not in a position to express any concluded opinion on the facts of this case.
(c) A sudden departure from the current arrangements carries greater risk of a renewed rejection of Mr Blair by Samantha.
[48] An illustration of the same approach can be found in NGP v ALH.30 In that case, a thoughtful, intelligent and mature adolescent female of nearly 15 years of age
was found by the Court to have a strong underlying relationship with her father. The
27 Care of Children Act 2004, s 4(4).
28 See paras [40]–[44] above.
29 See the extract from Dr Clarkson’s report, set out at para [34] above.
30 NGP v ALH FC Waitakere FAM-2008-090-1901, 22 November 2010.
Family Court was concerned that, if her strong desire to choose the timing and length of contact visits was thwarted, the relationship with her father would be damaged. Judge Mather, a very experienced Family Court Judge, said:31
Where a mature teenager approaching the age of 15 expresses firm, clear views about parenting arrangements which are held to be her own genuinely held views, it will seldom be appropriate to impose a regime significantly at odds with those views. Ultimately it is futile to try and enforce contact between a child and a parent against a child’s wishes.
Result
[49] For those reasons, which are broadly similar to those expressed by Judge O’Dwyer in her 20 December 2011 judgment,32 I conclude that Samantha’s welfare is best served by the orders made in the Family Court. The appeal is dismissed.
[50] I make no order for costs as between the parents. Both are to be commended on the excellent upbringing they have given to Samantha. The way she has responded in her various school and extra-curricula activities is evidence of that. An order for costs is likely to do damage to the future relationships of all involved and should not, therefore, be made.
[51] I order that costs and disbursements of Ms Chan, as Lawyer for the Child, be paid out of moneys appropriated by Parliament for the purpose.
[52] I thank counsel for their assistance.
P R Heath J
Delivered at 2.00pm on 8 November 2012
31 Ibid, at para [34].
32 See paras [20] and [21] above.