Bush v Johnson
[2020] NZHC 186
•17 February 2020
NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS) ACT 1976, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B,
11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE
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IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE
CIV-2019-488-078
[2020] NZHC 186
UNDER The Care of Children Act 2004 IN THE MATTER
Of an appeal against the decision at the Family Court in Kaikohe Jurisdiction (released 04/7/19)
BETWEEN
BUSH
Appellant
AND
JOHNSON
Respondent
Hearing: 12 December 2019 Appearances:
M Littlefair for the Appellant Respondent in person
S Punchon as Lawyer for the Child
Judgment:
17 February 2020
JUDGMENT OF MUIR J
This judgment was delivered by me on Monday 17 February 2020 at 4.06 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date:…………………………
Counsel/Solicitors:
Rune Law, Kaikohe (M A Littlefair)
S Punshon, Barrister, Kaitaia. Copy to the Respondent
BUSH v JOHNSON [2020] NZHC 186 [17 February 2020]
Introduction
[1] The appellant is the father of a 14-year-old boy who I will refer to as JD.1 The father has had no contact with JD for two years. He is not a bad father in the sense of being abusive or neglectful, but he is an older parent (nearly 69) and, as his counsel acknowledges, has certain eccentricities. JD does not want any contact with his father, at least at this stage. He considers his father “embarrassing” and “not cool” but is otherwise unable to, or declines to articulate why he does not want contact.
[2] In the Family Court the father sought a staged therapeutic intervention whereby he would initially engage with a psychologist and, at the point it was considered professionally appropriate to do so, JD would likewise be introduced to the process, with a view ultimately to joint sessions involving father and son. He also sought a contact order allowing him to observe and be present at various milestones in his son’s development, for example school prize-givings, from which he had been precluded by a trespass order issued by JD’s school on application by the mother.
[3] The Family Court declined both aspects of the application with the result that there is currently no contact order relating to the father and JD. The father now appeals that decision.
Background
[4] The proceedings have a long history. The parties separated when JD was an infant. In August 2010 a parenting order was made by consent which provided for supervised contact by the father (as had in fact occurred since 2008). In December 2012 the father applied to vary that order, extending the time he had with JD and providing for such contact to be unsupervised. The decision under appeal is a decision on that application.
[5] As is obvious, the proceedings suffered from significant delay, in part caused by the Court processes and in part by the need to update psychological evidence. The first report of psychologist Dr Kate Birch was in December 2009. A further report
1 These are not his actual initials. Likewise the names which appear on the intituling of this judgment are fictitious.
followed in December 2014. Thereafter the father himself engaged with a professional therapist. In 2017 JD withdrew from supervised contact, the evident catalyst being what he considered to be a missed contact session, although the father says he telegraphed his absence in advance and the reasons for it. In June 2018 an updated s 133 report was obtained in anticipation of the hearing which occurred in October 2018 and resumed on 21 March 2019. The Family Court’s decision was delivered on 4 July 2019.
The Family Court’s decision
[6] Judge Goodwin identified the central issue as being whether contact between JD and his father should be re-established and if so, how that was best achieved. He noted that the father was not seeking a return to supervised contact but rather engagement in a therapeutic process. He noted that the question of whether the mother had alienated JD “haunt [ed]”2 the proceedings because although the father nominally accepted some responsibility for the loss of contact, his case was substantially premised on “negative and accusatory”3 comments about the mother whom he identified as an alienator. By contrast the mother’s case was noted as being one of “realistic estrangement”.
[7] The Court reviewed at length the reports by Dr Birch and her evidence at the hearing. It noted her assessment that the father had “a very limited understanding of both emotional matters and children’s behaviour” and expressed unusual views and her 2014 observation that he might not “be able to behave appropriately and safely as a parent to the children”.
[8] The background to that particular observation appears to be her assessment that at the time, the father adopted a somewhat laissez faire approach to aspects of JD’s physical safety.4 In a possible reaction to this criticism, the 2018 report records age inappropriate restrictions on physical activities – “an approach to behavioral limits
2 [Bush] v [Johnson] [2019] NZFC 3268 at [22].
3 At [17].
4 An example is cited of JD attempting to crawl out of an upstairs window onto a roof structure, the implication being that the father had not adequately secured his safety with appropriate window locks.
that lacks sound rationale” – the implication being that, for whatever reason, the father was unable to strike the correct balance in terms of safety considerations.
[9] The Court noted Dr Birch’s conclusion that JD was not alienated and that his inability to express reasons for not wishing to see his father (beyond saying that he was “embarrassing” and “not cool”) suggested a lack of coaching by his mother. It also recorded Dr Birch’s view that, given the length of time over which contact had not occurred, she was “weary of the chances of things coming right now and that a requirement to engage in therapeutic intervention would impose a psychological burden on JD at a time when he was vulnerable and “thinking about his own progression into manhood” and that this psychological burden had risk factors such as depression, self-harming and substance abuse.
[10] The Court considered these assessments sound and concluded that JD was “realistically estranged” on the basis that “JD’s experience of his father is one of a man who exhibits unusual behaviour in which in my view accounts more for the estrangement than behaviours of mother”. The Judge cited a number of instances of what he termed “father’s unusual presentation; his lack of boundaries and his lack of insight”.5 I note however that of the 13 examples cited, a minimum of seven do not relate to any interactions with JD himself. These include the Judge’s reference to:
(a)“Lack of thought to a therapy plan and who is financially responsible and his lack of insight into its importance”;
(b)“His evidence about whether he did or whether he did not talk to a therapist”;
(c)“The lack of responsibility he took for the breakdown in his relationship with JD after counselling”;
(d)That “although he says he accepts some responsibility for the breakdown in the relationship, when articulated, it amounted only to the email sent in 2017 giving [JD] an option to opt out of contact”; and
5 [Bush] v [Johnson] [2019] NZFC 3268 at [36].
(e)“The email he wrote to the mother’s partner and the groups that he sent that email to”.
[11] The Judge also refered to “the evidence given about the killing of a cat” (an apparent reference to the father’s destruction of a domestic cat), but there was no evidence this either occurred in the presence of JD, that it was done inhumanely or an improper motive existed.
[12] Nevertheless, the Court concluded that it was “the accumulation of these unusual presentations and behaviours that accounts of JD’s rejection of his father”.6
[13] The Judge then asked himself “what can be done?” He concluded that there were two realistic options being either:
(a)To adjourn the proceedings to allow a therapeutic process to occur; or
(b)To make no order for contact and close the proceedings at this stage.
[14] He discussed the first option at length identifying that the argument for allowing a therapeutic process was a “strong one”7 as it exhausted the opportunity of restoring the relationship between JD and his father. The judgment does not include any discussion of whether the Court had a jurisdiction to direct JD’s participation in such a process because that issue was not taken by the mother at trial.8 This can be contrasted with her position on appeal.
[15] The Court noted that if a therapeutic process was to be followed it would be on the basis of the father engaging with an appropriate psychologist, the release of the psychological reports and the Court’s decision to the psychologist and consideration by the Court of any report from that psychologist before JD was potentially engaged in any part of the process. It acknowledged that this would mean there were safeguards in place to lessen any risk to him.
6 [Bush] v [Johnson] [2019] NZFC 3268 at [37].
7 At [43].
8 Indeed, in response to a question from the Bench asking “Do you have any issue jurisdictionally?”, counsel said “No”. The respondent was not represented by counsel on the appeal.
[16] Ultimately however the Court was not prepared to order such a process. Relying on the evidence of Dr Birch, the Judge concluded that he was not satisfied there was “a realistic chance of re-establishing a relationship between [JD] and his father”9 and that JD’s psychological baggage, described by Dr Birch as “heavy backpack” would be prolonged, and the weight possibly get heavier if a therapeutic process was imposed.
[17] In respect of the father’s application to allow non-verbal contact by way of attendance at sporting events and school occasions, the Court said that in its view this was “likely to lead to ongoing conflict” and expose JD to “certain traits of his father that [JD] finds difficult to cope with”. The Court therefore declined to make the order.
Approach on appeal
[18] This is a general appeal. By virtue of s 143(4) of the Care of Children Act 2004 (“COCA”) and s 127 of the District Court Act 2016, it is to be by way of a re- hearing.
[19] Having regard to the well-known principles set out in Austin, Nicholls & Co Inc the Stitching and Lodestar,10 the father must, if he is to succeed on the appeal, satisfy this Court that it should differ from Judge Goodwin’s decision. The Court is required to make its own assessment of the merits of the case and is not required to give any particular deference to the decision under appeal. The weight placed on the reasoning of the first instance Court is a matter properly for the appellate Court. In B v B11 Duffy J expressed the position as follows:
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.
The appellant’s case
[20]For the father Mr Littlefair argues that the Judge erred in:
9 [Bush] v [Johnson] [2019] NZFC 3268 at [48].
10 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
11 B v B [2008] NZFLR 1083 [HC] at [44].
(a)failing to place proper weight on and give due consideration to JD’s overall best interests and welfare as mandated in s 4 of COCA;
(b)determining that it was against JD’s overall best interests to allow for a pathway to a restored relationship and father’s observation of important educational and other events in his son’s passage through life;
(c)finding that there was no evidence of the mother engaging in alienating conduct;
(d)placing disproportionate and excessive weight on JD’s apparent views or wishes and the possible risk factors to him in ordering further conduct;
(e)placing too little weight on the statutorily mandated principles in ss 5B F of COCA and in particular that a child should continue to have a relationship with both of his or her parents;
(f)relying inappropriately on the s 133 reports; and
(g)failing to make findings of fact on issues crucial to the assessment of whether JD’s position was one of a realistic estrangement or alienation.
[21] Mr Littlefair was also critical of some aspects of the way the Family Court hearing had developed, suggesting that the Judge unduly constrained his attempts to explore the alienation thesis underlying his client’s case. He submitted that there were certain classic indicia of alienation including mother’s engagement of a counsellor for JD without consultation and in breach of guardianship obligations. He also submitted that Dr Birch had failed to make several fundamental enquiries and that her conclusions in respect of the absence of alienation were therefore unreliable. He emphasised that in her evidence mother had conceded that she was unsure of what positives the father could contribute to JD’s life and that it was unrealistic for such attitudes not to have permeated her approach to contact. He submitted that for
Dr Birch to claim that the mother actively supported contact “defied logic” in the context of such beliefs.
[22] The relief sought by the appellant is identified in paragraph 4 of his notice of appeal in the following terms:
The appellant seeks relief by way of the Court granting [a] Contact order/s allowing for therapeutic intervention with his Son and for reiterative and transitional Contact under that therapeutic umbrella and [b]12 for a contact order allowing him to observe and be present at important milestones in his son’s life.
Discussion
Jurisdiction
[23] In relation to the first and most important aspect of the proposed relief there is a threshold issue – unargued before the Family Court but prominent in the mother’s submissions before this Court – is there jurisdiction under COCA (or any other enactment) to order a child to participate in a therapeutic process?
[24] Although this question has previously been answered by the Family Court in the negative,13 it is not one which has yet been addressed by this Court.14
[25] In support of his submission that such jurisdiction exists, Mr Littlefair relies primarily on s 48(4) of COCA which provides that a parenting order governing day to day care of or contact with a child:
… may be made subject to any terms or conditions the Court considers appropriate (for example, a condition requiring a party to enter into a bond).
12 I have added the reference to “[b]” which is an apparent omission from the Notice of Appeal.
13 FJS v RKS FC Porirua FAM – 2005-091-55, 14 February 2011 at 66,72.
14 F v F High Court Invercargill CIV-2010-425-440 11 February 2011 is cited by Lee James, William Bernet and others “Parental Alienation, DSM-V and ICD-11” (2010) 38 Am J Fam Ther 76 at 86, as a case where the Court “impos[ed] therapeutic interventions but that is a case where the mother was ordered to undergo therapy at her expense aimed at reducing enmeshment between her and the children and strengthening the relation with the father. The decision notes, however, that the Family Court had previously made a parenting order by consent that the parties and children were to attend therapy sessions.
[26] He submits that an expansive construction of the s 48(4) discretion, permitting an order of the type sought, would be consistent with a number of the s 5 principles and in particular those in s 5(e).
[27] As a backstop submission, he says that the Family Court has recognised therapeutic intervention as potentially appropriate in circumstances where a child is to be placed under the guardianship of the Court.15 Although no such guardianship order is sought in this case, the value of the potential process should have been similarly recognised in the context of the parenting orders which were sought.
[28] This secondary argument can in my view be disposed of briefly. I agree with Judge Geoghegan in MJH v DJO that, although the powers of the Court under s 35(2) of COCA are wide ranging, they are premised on a need for the child to be placed under the guardianship of the Court.16 As the Judge held, the process cannot be used as “a convenient method of providing counselling which would not otherwise be available”.17 In that case the child had a deeply dysfunctional relationship with his parents and they consented to him being placed under the guardianship of the Court. Jurisdictional issues did not therefore arise.
[29]The position under COCA s 48(4) is more complex however.
[30] Counselling has been a feature of Family Court legislation since the 1980s but the nature and extent of this provision has varied over time.18 In its 2003 report, Dispute Resolution in the Family Court, the Law Commission outlined that the Family Proceedings Act 1980 allowed for a couple to approach the Court for counselling.19
15 COCA ss 31 and 35(2).
16 MJH v DJO [2012] NZFLR at 73 (FC) at [36] & [50].
17 At [50] - [51].18 Counselling services is a defined terms under COCA meaning services provided by a counsellor (that is a person appointed as a counsellor under s 46K) for the purposes specified in s 46G(2) (a section to which I will revert later). It does not, in its terms, refer to the services of a psychologist or a psychiatrist and does not therefore envisage the specific type of “therapeutic intervention” which is sought in this case. I put that issue to one side, however, and focus on whether JD can be directed to participate in any generally therapeutic environment.
19 Law Commission Dispute Resolution in the Family Court (NZLC R82, 2003) at [262]; Family Proceedings Act 1980 s 9.
[31] Alternatively, the Court could direct a couple to attempt counselling if a custody or maintenance order had been applied for. Parties were encouraged to seek counselling to help reconcile their differences. At the time counsellors were appointed under the State Sector Act 1988.20 Most had a tertiary qualification and two year’s practical experience before embarking on Family Court work. It was not the typical role of psychologists or psychiatrists.
[32] Children of the relationship could also attend counselling but only if the Court directed that to occur. The Commission observed that the Act did not expressly allow for this, but that Judges had done so in their discretion.21 It noted that s 19(1)(b) of the Family Proceedings Act was frequently cited as providing justification for the direction, along with the inherent powers of the Family Court to make such orders as were necessary to facilitate the adequate disposal of proceedings.22
[33]Section 19(1)(b) (now repealed) relevantly read:
19.Duty of Courts as to reconciliation and conciliation
(1)In all proceedings under this Act between spouses or civil union partners (other than proceedings under section 27 or section 29 or section 32), and in all proceedings under the Care of Children Act 2004 between spouses, civil union partners, or de facto partners for any order about the role of providing day-to-day care for a child, or about contact with a child, the Court shall –
…
(b) Take such further steps as in its opinion may assist in promoting reconciliation or, if reconciliation is not possible, conciliation.
[34] In its report the Commission considered it may be useful to involve children in a group counselling session where parents had separated and re-partnered, and access issues arose. It recommended that:23
[p]eople other than the separating parents should be able to attend counselling, if in the view of the Family Court coordinator (or on the recommendation of the counsellor and parties) it is thought this might help resolve the dispute.
20 Family Court Act 1980, s 8(3).
21 Law Commission, above n 19, at [271].
22 At footnotes 91 and 92.
23 At [62].
[35] The Commission also recommended that children should have access to counselling services in their own right at the request of the Judge among others.24 It said that existing counsellors might need additional training to work with children and that family therapists experienced in working with children could be accredited as Family Court “child counsellors/therapists”. The Commission reasoned:25
Parental separation, particularly where there is extreme conflict or non- cooperation, can damage children and we recommend developing programmes and materials to help them through the transition.
We believe counsellors can be useful in discovering whether children want a say in what is happening in their family and how they might want to do so. Children who want to tell their parents the mediator or the Judge how they feel, might need encouragement to find their voice …
A child should be able to ask the counsellor to tell parents something, if he or she feels uncomfortable about raising the issue with parents directly.
[36] The Commission further considered it desirable that Judges have the power to refer any party to targeted counselling sessions facilitated by specially trained counsellor in any of the following situations:26
(a)one or both litigants had adopted a highly conflictual stance;
(b)one parent with a history of little or no contact re-entered the child’s life to seek or claim custody or contact;
(c)one party is “mentally normal” but is creating barriers to the child’s contact with the other parent; and
(d)a child has become alienated from a parent and after investigation there appears to be no rational basis for the refusal to have any contact.27
[37] In 2007 the Family Court Matters Bill was introduced in response to the Commission’s report.28 In Committee, the Bill was amended to extend counselling
24 Law Commission Dispute Resolution in the Family Court, above n 19, at[283].
25 At [277] - [280].
26 At [284].
27 The observation with greatest potential relevance to this case.
28 Family Court Matters Bill 2007 (143-1) explanatory note at 2.
services to children.29 The Committee wanted to allow the Family Court “in exceptional circumstances to direct that a child attend counselling if the court believed that the child might have difficulty accepting or complying with a court order”. It also wanted to allow children to attend counselling when the day-to-day care, contact or guardianship of the child was in dispute. The Committee said, “research shows that children who have been consulted cope better when their parents separate and counselling can help parents focus on children’s needs”.
[38] The resultant Care of Children Amendment Act 2008 was assented to on 16 September 2008. Subject to a commencement order, s 8 would have inserted two sections into COCA with potential relevance to this appeal – namely sections 46P and T. Relevantly these provided:
46P Counselling for child on making of parenting order or order relating to guardianship matter
(1) The court may direct a child to attend counselling if the circumstances in subsection (2) exist.
(2)The circumstances are that—
(a)the court is making an order under section 46F(6) or 48(1); and
(b)the court considers that the child is in exceptional need of assistance in accepting the terms of the order or in adjusting to any changes resulting from the terms of the order.
(3)Where a direction is made under this section, the Registrar must arrange for the matter to be referred to a counsellor.
46T Reference to counsellor
(1)This section applies to a referral to counselling under—
(a)section 46F(2):
(b)section 46G(3):
(c)section 46I(3):
(d)section 46Q(2).
(2)A counsellor to whom a matter is referred must—
29 Family Court Matters Bill 2007 (143-2) (Select Committee Report) at 3.
(a)arrange to meet either or both of the parties at such times and places (including the home of either party) as the counsellor thinks fit for the purposes of counselling; or
(b)request either or both of the parties to attend before the counsellor at a specified time and place for the purposes of counselling.
(3)The counsellor may meet with one of the parties, or both of the parties separately, if the counsellor considers a meeting would enable him or her to do any or all of the following:
(a)clarify the main issues between the parties:
(b)gather any further information that may be relevant to the conduct of the counselling:
(c)determine with the parties whether, if the child who is the subject of the matter in issue wishes to do so, the child should attend 1 or more sessions of counselling.
[39] However, no commencement order has been made in respect of s 8. The parties can still request relationship counselling,30 and the Family Court can still direct parties to attend counselling if a custody or maintenance order had been applied for,31 but statutory authority to direct a child to attend counselling or to permit their involvement in parental counselling has not yet been provided for.
[40] The next significant development was the Family Court Proceedings Reform Bill of 2012 which was introduced in response to a review of the Family Court by the Ministry of Justice in 2011. One of the main purposes of the Bill was to support people in resolving their disputes out of Court by using family dispute resolution.32 An evident driver of these changes was to ensure that the family justice system remained affordable in the future. The select committee observed that at the time court funded counselling was costing the taxpayer around $9,700,000 per year.33
[41] The Bill provided that in most instances family dispute resolution should replace counselling, but Judges would retain the ability to direct parties to attend counselling in certain circumstances. In its report the Justice and Electoral Committee said:
30 Family Proceedings Act 1980 ss 9, 11; Care of Children Act 2004, s 65.
31 Family Proceedings Act 1980 ss 10(4), at [11].
32 Family Court Proceedings Bill 2012 (90-1) explanatory note at 2.
33 Family Court Proceedings Bill 2012 (19-2) Select Committee Report at 15.
Most of us believe that counselling may help parties prepare for FDR [Family Dispute Resolution] but rather than providing for this counselling in the Bill, we recommend it be considered as an operational matter.
…
We consider that taxpayer funded counselling should still be available for cases under the Care of Children Act, before or after final orders are made, if a judge considers counselling to be the best way to help parties with their parenting relationship and implementation of any decision of the court.
[42]Passage of the Bill resulted in s 46G of COCA. This provides:
46G Counselling after proceedings commenced
(1)This section applies after an application has been made to the Family Court for—
(a)a direction under section 46R; or
(b)a parenting order under section 48.
(2)A Family Court Judge may direct the Registrar of the court to refer the parties to the application to counselling services for either or both of the following purposes:
(a)to improve the relationship between the parties:
(b)to encourage compliance with any direction or order made by the court.
(3)A direction under subsection (2) may only be made by a Family Court Judge if the Judge considers that the provision of counselling services is the best means of assisting the parties with their relationship or the implementation of any decision of the court, or both of those matters.
(4)A Family Court Judge may make a direction under subsection (2)—
(a)at any stage of the proceedings, including when making a final order; but
(b)once only.
(5)On receipt of a direction under subsection (2), the Registrar must—
(a)arrange for the parties to be referred to a counsellor or an approved counselling organisation; and
(b)inform the parties accordingly.
[43] The Secretary of Justice approves counselling organisations.34 The Secretary or an approved organisation can appoint counsellors.35 Counsellors must be a member or affiliate of a professional body and hold a counselling qualification. Parties are referred to approved counselling organisations which nominate counsellors to provide counselling services.36 Fees and expenses are paid out of public money.37
[44] In its terms, s 46G authorises reference to counselling services only for the parties. Given the legislative history I have referred to, and in particular the absence of a commencement order in respect of s 8 of the Care of Children Amendment Act 2008, that phrase cannot in my view be interpreted to include any child of the relationship.
[45] Mr Littlefair argues that all that can be inferred from this history is that Parliament has retreated from the prospect of allocating additional funding for child counselling and that where (as in this case) an applicant is prepared to fund such counselling personally I should not regard the failure to make a commencement order in respect of ss 46P or 46T as an impediment to a direction which may be in the long term interests of the child.
[46] That is not an approach supported in the academic literature. In her 2018 article Parental Alienation – a Critique of the Current New Zealand Law and Consideration of the Need for Reform,38 Lee James states that one of the omissions from the current legislation is that it does not allow “direction to specific ‘reunification’ therapy where alienation is present and that specific programmes would need to be developed if provision for reunification therapy was to be included”.39 Later she says:40
The legislation contains no specific provision to require therapy specific to alienation or reunification, and without specific provisions contained in the legislation, the court’s ability to enforce therapy is limited (even where the parties may consent to this).
34 Care of Children Act 2004, s 46H.
35 Care of Children Act 2004, s 46K.
36 Care of Children Act 2004, s 46J.
37 Care of Children Act 2004, s 46N.
38 Lee James Parental Alienation – a Critique of the Current New Zealand Law and Consideration of the Need for Reform (2018) 9 NZFLJ 79.
39 At 86.
40 At 90.
…
… the court is severely limited in terms of outcomes currently in its inability to impose specific therapeutic intervention and the lack of availability of such specialist therapeutic programs.
[47] That approach is consistent with the only Family Court case to have addressed the issue – FJS v RKS.41 In that case Judge G F Ellis held that the Court did not have the power or the authority to require children to undertake counselling or therapy with a parent to whom they were opposed.42 He referred to the provisions of the Care of Children Amendment Act 2008 for which no commencement date had been given and said:
That cannot be regarded as an oversight. It must, for the present, be taken to be the considered decision of the legislature that such powers (and the resources necessary to implement them) are not to be given to the Family Court.
[48] In response to the argument that (then) section 48(5) (and now section 48(4)) provided a sufficiently wide jurisdiction to compel a child to attend counselling the Judge said:43
Such an argument cannot be seriously maintained in the face of a clear legislative decision not to permit the Family Court to do such a thing.
[49] In my view this decision correctly states the law. Although I cannot discount the fact that funding priorities may have featured in the decision not to specify a commencement date for ss 46P and 46T, the fact that this has not occurred, coupled with the fact that s 46G is, in its terms, restricted to the parties, leads me to the conclusion that the jurisdiction does not exist.44
[50] That conclusion is reinforced by the recently released report of the Minister of Justice’s independent panel appointed to examine the 2014 family justice system
41 FJS v RKS FC Porirua FAM-2005-091-000055, 14 February 2011.
42 At [66] & [72].
43 At [71].
44 Additionally, I note that the s 46P jurisdiction for which no commencement date has been specified arises where the Court is intending (inter alia) to make a parenting order but where the child is in “exceptional need of assistance”. That differs from what is proposed here where the contact being sought is the therapeutic intervention itself.
reforms.45 In its final report the Panel recommended broadening s 46G to enable children to attend counselling sessions alongside one or both parents or parties where the counsellor deemed this appropriate. Implicit in that observation is that the power does not currently exist. The panel recommended urgent work on best practice guidelines for when children should be eligible for funded counselling in their own right; parent and child consent, the scope and purpose of the counselling; and required amendments to COCA. Again, the report implicitly recognises that there is more work to be done before a counselling framework involving children is legislated.
[51] I conclude therefore that the Family Court did not have jurisdiction under s 48(4) to order JD to participate either in counselling or the more specific type of “therapeutic intervention” sought before the Family Court and on appeal. Although as I have indicated, the jurisdictional point was not taken in the Family Court the Court’s ultimate decision cannot be taken as having erred in fact and law as no such jurisdiction existed.
[52] For completeness I also note the provisions of s 46R(4) of COCA which provides that where two or more guardians are unable to agree on a matter concerning guardianship and apply to the Court accordingly, the Court may “make any order relating to the matter that it thinks proper”. The obligations of guardianship include contribution to the child’s intellectual, emotional, physical, social, cultural and other personal development.46 The father’s exclusion from JD’s upbringing therefore engages, at the most general sense, guardianship issues in respect of which the mother and father are not in agreement.
[53] However, in my view, s 46R(4) cannot likewise be considered authority for an order directing JD into therapy. Applications under s 46R together with those for parenting orders under s 48 are the two recognised catalysts for a judicial direction to counselling services under s 46G. As indicated, s 46G permits a reference in respect of “the parties”. Sections 46G and 46R cannot in my view be read consistently if an ability to direct counselling services for non-parties is recognised in s 46R(4).
45 Ministry of Justice Te Korowai Ture e Whanau: The final report of the independent panel examining the 2014 Family Justice Reforms (May 2019) at [313].
46 Care of Children Act 2004, s 16(1)(b).
Moreover, the explanatory note to the relevant Bill introducing s 46R noted that its purposes included removal of the ability of guardians to access counselling as of right.47 It was not a provision designed to expand the relevant jurisdiction.
Had there been jurisdiction what would I have done?
[54] Had I concluded there was jurisdiction to do so, I would have inclined to the view that the father’s proposals be adopted. They were measured and sensible, fairly recognising that if any relationship was to be re-established, the first step would be his own engagement with a psychologist and that only at the point the Court was satisfied with his own progress would JD be introduced to the process, with participation in any mutual sessions again requiring the psychologist’s imprimatur. As the Family Court itself recognised, the argument for allowing a therapeutic process is a strong one as it provides the only real opportunity at this stage for any relationship to resume. Additionally, as s 5(e) of COCA recognises, a child’s welfare and best interests will typically be served by a continuing relationship with both his or her parents.
[55] In my view all realistic avenues for such a continuing relationship (consistent at all times with a child’s emotional and physical safety) should be actively explored, even if, as Dr Birch’s evidence was in this case, the prospects of reconciliation are slim. They may in fact be, but I do not consider it a proper basis for not at least trying
– especially given the fact that as the Family Court acknowledged, any risk to JD was significantly mitigated by the fact that he would only be involved in the therapeutic process at the point it was “deemed” the father was in a position to engage appropriately with his son. In coming to that conclusion, I am influenced by a number of factors.
[56] Firstly the age of the father – this is undoubtedly a complicating feature in the father/son relationship. The age difference is substantial – 55 years. JD would not be the only adolescent to regard his father as “embarrassing” or “not cool”. Dr Birch herself recognises that criticism of parents by adolescents is part of the natural progression in establishing individual identity. The age difference here will inevitably have created sharper differences in outlook and attitude. By the same token it places
47 Family Court Proceedings Bill 2012 (90-1) (explanatory note) at [6].
at a premium, timely attempts at reconciliation if JD is not to carry into adulthood the potential guilt associated with a deceased father and a failure on his part not to explore every available opportunity to reconcile. These issues were drawn into stark relief by the father’s hospitalisation, initially in intensive care, at the time of the hearing of the appeal. I was advised by the mother that JD had expressed an intention not to visit him. That is likely to be a decision he will regret in later life. If his father had died, the lasting psychological burden may have been substantial. The welfare and best interests of JD (being the Court’s first and paramount consideration under s 4(1)) are undoubtedly served by efforts to mitigate that potential psychological burden. As Ms James observes in her NZFLT article:48
Given the court’s obligation to make decisions in the best interests of the children, it is vital to consider the potential repercussions for children for not having the opportunity for reunification with a rejected parent. Research indicates that children of divorce generally do best when they have relationships with two involved and effective parents. In addition, research has indicated that both alienated children and adults who were alienated as children, despite protests otherwise, indicated that they secretly longed for more contact with the rejected parent and wished someone would have insisted they have contact.
(footnotes omitted)
[57] That is a conclusion well supported in the academic literature. For example, Richard A Warshak notes in reference to studies by Amy J L Barker:49
No study has reported that adults, who as children complied with expectations to repair a damaged relationship with a parent, later regretted having been obliged to do so. On the other hand, studies of adults who were allowed to disown a parent find that they regretted that decision and reported long term problems with guilt and depression that they attributed to having been allowed to reject one of their parents.
48 Lee James, Parental alienation – a critique of the current New Zealand law and consideration of the need for reform (2018) 9 NZFLJ 79 at 82.
49 Richard A Warshak “Ten parental alienation fallacies that compromise decisions in court and in therapy” (2015) 46 Prof Psychol Res Pr 235 at 236; Amy J L Baker “The Long-Term Effects of Parental Alienation on Adult Children: A Qualitative Research Study” (2005) 33 Am J Fam Ther 289; Amy J L Baker Adult Children of Parental Alienation Syndrome (WW Norton and Company, New York, 2007) determined a relationship between parental alienation and alcohol problems in qualitative research but not in quantitative research – (Amy J L Baker and Naomi Ben-Ami “To Turn a Child against a Parent is to Turn a Child against Himself: The Direct and Indirect Effects of Exposure to Parental Alienation Strategies on Self-Esteem and Well-Being” (2011) 52 J Divorce Remarriage 472 at 473). or in a student population – (Amy J L Baker and Maria Christina Verocchio “Italian College Student-Reported Childhood Exposure to Parental Alienation: Correlates with Well-Being” (2013) 54 J Divorce Remarriage 609).
[58] Secondly, I consider the countervailing risks to JD modest by comparison with the potential gains. Dr Birch talks in terms of potential embarrassment to JD in explaining to his peers that he is engaged in some form of therapeutic process, but that could surely be accommodated by sessions outside school hours that did not need even to come to the attention of his peers. Although the Family Court relied on her analogy about a “heavy backpack” the burden of which may be made heavier by exposure to a therapeutic process, the academic literature I have cited indicates that the burden of being allowed to reject one of his parents may well ultimately be greater still.
[59] Thirdly, I do not share the view of the Family Court Judge that this case can be neatly categorised as one of realistic or justified estrangement. Some of father’s actions may have been ill-advised, for example setting up a website for JD without his knowledge and befriending his sister’s friends on Facebook.50 Possibly his religious convictions have created further differences.51 Furthermore as Dr Birch observed, he obviously struggles from time to time with interpersonal relationships, boundaries, and particularly it would seem, in developing an empathetic relationship with children and adolescents. However, as I pointed out at the commencement of this judgment, there is no suggestion of physical or psychological abuse and the worst that can apparently be said of him by JD is that he is “embarrassing” and “not cool”.
[60] I prefer to see the case as falling in the hybrid category between alienation and justified estrangement – that is it involves some elements of alienation by the mother and some behaviours by the father which each contribute to JD’s resistance to contact. In saying that I do not doubt that the respondent is an exemplary mother in most respects. The appellant acknowledges as much. Nor do I doubt that, at least intellectually, she understands and would like to support a continuing relationship between JD and his father. However, I agree with Mr Littlefair that when, as the mother said in evidence, she could not see the father contributing anything positive to JD’s life at this stage, and when, as in this case there is a high degree of hostility between the parties, it is unrealistic to suggest this will not have permeated into JD’s assessment of his father and featured in his desire not to have contact with him. Since
50 JD has an older sister, also the child of the appellant and respondent. She is 16. The current litigation does not concern her.
51 One of the complaints made in the affidavits is of offers of pecuniary reward, earlier in JD’s life, for his learning the 10 Commandments.
there is no suggestion that the father has, subsequent to his relationship with the mother, become alcohol or drug dependent or has otherwise undergone some irreversible decline, the suggestion that he is unlikely to contribute anything positive in JD’s life is difficult to align with previous history.
[61] Significantly, Lee James postulates that most cases are likely to fall in the hybrid category and that a binary lens, recognising only alienation on the one hand and justified estrangement on the other, often oversimplifies what is a complex dynamic. I agree.
[62] It follows from these observations that although I do not consider there to be any jurisdiction to compel JD into a therapeutic process, I regard it as demonstrably in his best interests that his mother explore such a process with him with a view to a consent arrangement if possible.
Attendance at sporting, cultural and milestone school events
[63] Section 48(3) of COCA recognises that contact may be either “direct” or “some form of indirect contact”. In this case the father sought possibly the most indirect type of contact available – visual contract only by way of attendance at school cultural and sporting events and prize-givings.52 JD is both an academically accomplished young man, as well as musical and athletic. He participates regularly in school concerts and sporting events.
[64] At present the father is trespassed from JD’s school. That position has its origins in the mother’s former employment as a librarian at the school and the ongoing hostility between the parents. The result is that the father has been unable to attend prize-givings (at which JD has featured prominently) or any other of the events otherwise open to the public in which he has participated.
[65] I do not consider that to be in JD’s long-term welfare and best interests. The issue is not one of parental rights but rather whether an opportunity should be allowed to establish at least some foundation of mutual experience and history which might be
52 It is possible that in such contexts the visual “contact” will be unilateral on the part of the father.
tapped at a later stage (whether as a result of therapeutic intervention or simply the passage of time and new perspectives by JD) to develop an ongoing relationship.
[66] Significantly, when I tested the mother (who appeared on her own behalf) about the reasons for her opposition to such contract, she stated that she did not think she would be able to attend such events herself if the father was present. That should not be the relevant yardstick. The question is what is in JD’s (possibly long term) best interests.
[67] The mother did go on, however, to helpfully suggest a number of conditions which could be imposed were the Court minded to allow the appeal in this respect. These included that there be no physical or verbal contact between the father and JD. Mr Littlefair indicated consent to such conditions. He did not, however, consent to the mother’s further suggestion that the father be accompanied at such events by another responsible adult. He said that was a matter for the Court.
[68] Although the evidence was that the father sometimes struggles with boundaries I do not consider that, with the imposition of appropriate conditions, and the reservation of the right to seek variation or cancellation of the contact order in the event those conditions are not adhered to, there is a significant risk that JD will, as a result of such contact, be “expose[d]” to “certain traits of his father that [he] finds difficult to cope with”, as the Family Court Judge found.53 On the other hand there is the prospect of establishing at least some basis – rooted in the father’s pride in his son’s achievements – for a renewed relationship in future.
[69] I agree with the mother that given the history and some of the particular facets of the father’s personality identified by Dr Birch, a precautionary approach dictates that the father be accompanied by another responsible adult. That may be Ms Cooper who participated in earlier supervised contact, or anyone of equivalent responsibility.
53 [Bush] v [Johnson] [2019] NZFC 3268 at [49].
Result
[70] I dismiss the appeal insofar as it seeks “reiterative and transitional” contact in the context of a “therapeutic intervention” involving the father and JD.
[71] I allow the appeal insofar as it seeks a contact order allowing the father to be present at school cultural and sporting events, open days and school prize-givings. I make such order on the following conditions:
(a)That when attending such events, the father is not to engage in physical or verbal contact of any kind with JD.
(b)The father is at all times to be accompanied by another responsible adult.
[72] I reserve to the mother the right to apply to the Family Court for orders varying or cancelling the contact order made by me in the event of non-adherence by the father to the conditions imposed or in the event he engages in any disruptive conduct while observing the relevant events.
[73] I direct that a copy of the Results section of this judgment be provided to the Headmaster/Mistress of the school in which JD is currently enrolled with a view to voluntary withdrawal of the Trespass Notice. In the event a formal application is required I direct that a copy of the complete decision is to be provided to the relevant judicial officer.
Costs
[74] I have not been addressed on costs. Having regard to the respective wins and losses (and to the fact that the mother represented herself) my provisional view is that they should lie where they fall. If that view is not shared by the father, memoranda may be filed.
Muir J
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