C v P

[2021] NZHC 3375

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 NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CIV-2021-443-29

[2021] NZHC 3375

UNDER

the Care of Children Act 2004

IN THE MATTER

of an appeal against a decision of the Family Court at New Plymouth

BETWEEN

C

Appellant

AND

P

Respondent

Hearing:	21 October 2021
Appearances:	K M Marriner for Appellant No appearance for Respondent
Judgment:	9 December 2021

JUDGMENT OF ISAC J

Introduction

[1]This case involves a family that has sadly fractured.

[2]        Natasha and Jade are teenagers. They live with their father, Paul. They do not wish to have any contact with their mother, Catherine.1

1      The names used in this judgment are not the real names of the parties involved.

C v P [2021] NZHC 3375 [9 December 2021]

[3]        Theo is 17 years old, and another child of Paul and Catherine. He lives with his mother and has no wish to have contact with his father.

[4]        Then there is Bella. She is now 18 and recently moved out of her father’s house after a period of conflict with him. Prior to moving out she did not wish to have contact with Catherine, but recently she started having regular contact with her mother. That in turn has led her younger sisters to say they do not wish to have contact with Bella.

[5]        Against this backdrop, Catherine appeals a decision of the Family Court2 declining to make parenting and guardianship orders in relation to Natasha and Jade. The aim of those orders was to restore contact between Catherine and her two youngest daughters. Catherine contends that Paul has alienated the girls from her and is psychologically abusing them. She says that the Court ought to be appointed as the children’s guardians, and that a parenting order requiring contact between Catherine and the girls is needed. She says that financial penalties should be imposed on Paul if he does not facilitate that contact.

The family background in more detail

[6]        Catherine and Paul were together for 24 years before separating for the first time in January 2019. During this initial period of separation Bella went to live with a paternal aunt because of conflict with Catherine.3 She and Paul then ended up living together in a rental property owned by the parties.4

[7]        Catherine and Paul then reconciled and the whole family went on a trip to the United States in 2019. Shortly after, in July 2019, Paul and Catherine separated for the last time.

[8]        The separation is characterised by entrenched conflict between the parents, which all children appear to have been exposed to. They are aware that their mother chose to end the relationship with their father, and also of the deep upset this caused him.

2      M v K [2021] NZFC 5077 [Family Court decision].

3 At [40].

4 At [40].

[9]        Bella went to live with Paul in July 2019 and due to the conflict with her mother had no contact with Catherine from that point on. However, Bella moved out of her father’s home in March 2021 and has been living independently with her partner since August 2021. Since September 2021, she has been having regular contact with Catherine, following a hiatus of over two years.

[10]      Natasha will turn 16 this month. She has been living with her father since November 2019 and has not had meaningful contact with her mother since. Jade turned 14 in July of this year. Although she had lived with Catherine until September 2020, she too left her mother’s home to live with Paul, Natasha and Bella. Natasha and Jade have made it clear they do not wish to have anything to do with their mother and contact between them and Catherine has stopped altogether. This has obviously caused Catherine significant distress.

[11]      Theo lives with Catherine and is now 17 years old. Paul appears to wish to have nothing to do with his own son, and that feeling is mutual. And, as between the children, Theo does not appear to be having any meaningful contact with Natasha or       All this led Catherine to file an application in May 2021 under s 31(2) of the Care of Children Act 2004 (the Act) to have Natasha and Jade placed under the guardianship of the Family Court. She also applied for a parenting order under s 48 of that Act to ensure she had Court facilitated access to her children.

[13]      Paul initially opposed the applications. He participated in some preparatory counselling. However, the Court-appointed therapists concluded that joint family therapy would not be useful and could be counterproductive. They concluded that the family was “very scorched”, and that both parents would need to be “on board for there to be any chance of success”.5 By late January 2021, Paul had decided he no longer wished to participate in the Family Court proceedings brought by Catherine. He considered the on-going litigation to be a cause of deteriorating family relationships. He considered that:

5 At [18].

…things may well improve for the children if the Family Court proceedings conclude. He no longer intends to participate.

[14]      As a result, Catherine’s applications proceeded for hearing in May 2021 without formal opposition, and were dealt with by the Family Court as an application for formal proof.

[15]      Catherine’s applications essentially seek to separate Natasha and Jade, against their wishes, from their father, by placing them as boarders at their secondary school. This is considered necessary to reduce Paul’s ability to hold sway over them, which is in Catherine’s view the one factor driving their desire not to have contact with their mother. She sought parenting orders to require contact with her, and to have the Court appointed as the girls’ guardian.

Decision under appeal

[16]      In a carefully reasoned decision, Judge Harrison declined to make the orders Catherine sought. The Judge had the benefit of a report from a Dr Madhu Rai, a registered psychologist, dated 16 September 2020. At that time, Jade had not moved out of Catherine’s home, but clearly wished to do so. Dr Rai then gave evidence before the Family Court. She was questioned extensively by Ms Marriner on behalf of Catherine, as well as counsel for the children and the Judge.

[17]      The Judge began by identifying the relevant provisions of the Act,6 which make it clear the welfare and best interests of a child is the paramount consideration in the application of the Act. The Court noted the principles relating to a child’s welfare and best interests are identified in s 5, and concluded with s 6, which requires the Court to take into account any views a child expresses in relation to guardianship or contact.

[18]      After noting Natasha and Jade’s circumstances and the childrens’ views,7 the Judge turned to consider Dr Rai’s evidence. She noted:8

Dr Rai would not be moved in cross-examination to concede that this is a situation of parental alienation in the traditional sense; that is to say the

6      At [34]–[35], in particular ss 4-6 and s 31.

7      At [36]–[76].

8      At [77]–[78].

process by one parent (the alienating parent) teaching a child to reject the child’s other parent (the targeted parent), to experience fear when they are around that other parent and to avoid having any contact with them.

Dr Rai attributes the current situation for the girls as one that has been contributed to by the applicant, respondent and the children. She describes it as a hybrid case. In other words, it is a situation where the rejected parent has acted in a way or ways that has enabled the girls to hold the views they do and the favoured parent has acted in a way or ways that have enabled the girls to hold the views they do. They girls have also played their part in the situation.

(footnote omitted)

[19]      Dr Rai accepted that the hall marks of entrenched post-separation conflict and hatred were present.9 However, she rejected a proposition from Catherine’s counsel that Paul had a deliberate plan to get back at her by taking the children off her one-by- one. Rather, she thought Paul’s behaviour was the result of a lack of insight and that he had “completely lost sight of sharing the children.”10 All of this amounted to emotional abuse, where the girls had been “burdened” by Paul’s “free flow of unfiltered thought and information about the separation and the part [Catherine] played, from his perspective”. Dr Rai noted that the status quo was not meeting the needs of the children:11

…that is to say the children’s choice to live with one parent and have no contact with the other is not meeting their needs. Living with an emotionally abusive parent is not meeting their needs.

[20]      Reinforcing the Judge’s acceptance that the causes of the current fractures in the family was not solely Paul’s responsibility:12

From the data, Dr Rai formed the view that the applicant had also contributed to the children’s position. This is disputed by the applicant because in part it turns on getting to the truth of the incidents relied on by [Natasha and Jade] as being the turning point for their change of preference in favour of living with their father. The applicant holds a different perspective to the girls around these events that I have previously referred to. She is no closer to the truth despite this hearing.

Dr Rai’s message to the applicant is to “acknowledge the children’s perspective of how they might have felt, as opposed to wanting to drill down to the truth of whatever has happened between them.”

9 At [81].

10 At [82].

11 At [87].

12 At [91]–[93]; [95].

…

Dr Rai’s clear view was that neither parent has taken responsibility for their contribution to a somewhat dysfunctional state of the family.

(original emphasis).

[21]      The Judge noted the girls had a positive relationship with their mother before she separated from their father.13 To the Judge, there were no reasonable grounds for Natasha or Jade to be rejecting their mother.14 Bella had been a powerful role-model in respect of asserting her free will, and voting with her feet.15 Paul had supported her decisions.16 He also supported Natasha’s decision to move away from her mother’s home, and was involved in “clandestine planning and organisation” in relation to Jade’s move into his home in September 2020.17

[22]      Having noted the harm Paul’s conduct was causing to all of the children, and the ways in which the current circumstances were not promoting the welfare and best interests of the girls and Theo,18 the Judge turned to consider the competing factors both for and against granting the orders Catherine sought:

[107]    The applicant implores the Court to initiate an immediate change of living arrangement for the girls. She wants an order that they attend [school] boarding hostel. In doing so, this will break the connection to their father and lessen his influence over the them. It will enable effective court-ordered supervision with both parents and contact will include [Theo]. She sees this as a fair option.

[108]When I consider this option, I take account of the following factors:

(a)the ages of the girls. They are teenagers who expressed a view on their current living environment. They will have their own view on boarding school. Their views have not been canvassed as this option was not known before the hearing;

(b)as teenagers their age and stage of development is marked by seeking independence, wanting their friends rather than their parents, conflictual relationships with parents, development

13 At [97].

14 At [110].

15 At [101].

16 At [101].

17     At [102]–[103].

18 At [105]–[106]. The Judge noted, amongst other things, that Paul was not cooperating with Catherine about matters affecting the children; the girls had been “deprived of the continuity of care of their mother”; and they had been deprived of a continuing relationship with Catherine and the wider maternal family.

of abstract thinking, egocentric thinking and finding their identity;

(c)they are accomplished teenagers in respect of their sporting endeavours and academic abilities. They are both bright, articulate and intelligent;

(d)[Natasha] is in an important year of high school, doing NCEA subjects;

(c)       they are both wanting to live with their father.

(f)but for the lack of maternal involvement in their lives, they are doing well and are achieving well. Their father is meeting their material needs;

(g)it is highly likely they will resist a change to boarding school and be unhappy about the forced change against their will;

(h)it is highly likely their father will not support the change and may cause disruption and undermine the contact order;

(i)the girls will still have an ability to contact their father through devices, albeit restricted by the hostel rules and regulations. They will continue to have free access to him, which will serve to undermine the court’s intervention of supervised face to face contact. It is not a situation where all contact can be denied and prevented. It is not a situation where only supervised contact with him will prevail;

(j)the evidence suggests the girls will resist contact with their mother, even if supervised. It is likely the police or social workers will need to take the girls to the contact time under Warrant;

(k)the process of resuming contact with their mother is likely to be a long and drawn out one and not without significant difficulty and trauma for the girls and their mother. It is likely they will ignore and reject her presence, for how long is uncertain, but it could be for a long lime. Slow progress is likely to be made across the academic school year;

(l)the value of Family Therapy if the favoured parent, in this case the respondent, is not participating;

(m)[Natasha] already sees the injustice and unfairness if an order were to apply to her until age 18 because this has not been the case for [Bella and Theo]; and

(n)there is a real risk of matters being made worse for the girls.

[109]Other factors that I consider relevant include:

(a)the sense of grief and intolerable loss felt by the respondent in respect of the relationship breakup;

(b)the existence of the family violence allegations against the respondent in separate proceedings, including subsequent evidence of cruelty to animals in the context of losing his rag. The applicant subsequently discontinued her application believing it would increase the chance of co-operative parenting and resolution of relationship property matters. Relationship property proceedings initiated in March 2020 were resolved in January 2021. The applicant felt she had to compromise her entitlement to achieve settlement;

(c)the respondent’s long-held belief that the applicant would reconcile and reunite with him if he had all the children;

(d)the respondent blames the applicant for the separation;

(e)the respondent’s black and white thinking;

(f)the inability of the respondent to see the children as separate people with their own identity and needs; and

(g)the unknown reaction of the respondent to any court ordered change of living arrangements for the girls or court ordered contact with their mother.

[23]      Having concluded that Paul was “emotionally abusing” Natasha and Jade by perpetuating and facilitating the notion they could not have a relationship with both parents post separation,19 the Judge referred to a pertinent observation of Judge Adams in GEH v AJH:20

[3]        If a statute can be said to have imagination, the Care of Children Act 2004 imagines a functional family in which parents nurture their children in a culture of respect and co-operation. Although the statute is mostly applied to families that are no longer intact, the pieces of the family jigsaw are recognisable. The law wants the picture to work. It is disappointing when puzzled pieces get so damaged that no sensible picture can be made of it.

[4]        I could force a different outcome but that would crush the children, damaging their education and self-worth. A violent judicial response will not advance the welfare and best interests of either child in this case. It would do more harm than good.

[24]      The Judge concluded that while a child’s safety must be protected from all forms of violence from all persons, including family members, whatever steps ought to be taken to ensure a child’s safety ought not come at a cost of their physical or emotional safety.21 This was not a black and white case of the children’s father

19 At [111].

20     At [113], citing GEH v AJH [2013] NZFC 889 at [3]–[4].

21     At [114] citing s 5(a) of the Act.

teaching them to reject their mother.22 A combination of factors had led to the current situation, “with contributions coming from all parties, including the children.”23 Accordingly, her Honour stood back from “adopting a heavy handed judicial response that would force the girls to leave their home and force them to have contact with their mother.”24 The risks to the children of such an order outweighed any potential benefit.

[25]      The Judge concluded by noting the outcome ought not be seen as a victory for Paul or the girls.25 She also noted Catherine should not give up hope. She had laid a strong foundation when the children were younger, and that in time the girls were likely to rekindle their relationship with their mother.26 That observation was prescient, because within a few months of her decision Bella sought and renewed her relationship with Catherine.

[26]      In the end, the Family Court declined to make any order under ss 31 or 48 of the Act for the purpose of achieving contact between the girls and their mother. It did, however, consider that facilitation of sibling contact — especially between Natasha, Jade and Theo — was important. Directions were made in order to ensure that occurred.

Grounds of appeal

[27]      In short, Catherine says that the reason she is unable to have a healthy relationship with Natasha and Jade is due to Paul’s psychological abuse and manipulation of them. Their express wish not to have contact with their mother is, therefore, not a free and informed decision. Little weight, if any, should be attached to their wishes under s 6 of the Act.

[28]      The principal thrust of Catherine’s challenge to the Family Court’s decision was that the Judge was wrong to conclude the risks to the children outweighed any potential benefit from orders requiring contact with their mother. This arose because, in large part, the Judge “held a fear that should the Court order a change of living

22 At [115].

23 At [116].

24 At [117].

25 At [118].

26 At [119].

arrangements for the girls, or Court ordered contact with their mother that [Paul] would kill the children.” It is alleged that the Judge’s fear stemmed from an adverse experience she had while in practice, and that this fear was “clear and direct during the hearing”. This meant the judicial process was  tainted  by  “predetermination”. Ms Marriner submitted the Judge “did not bring an impartial view” to the issues she was required to determine. Despite these criticisms, Ms Marriner acknowledged in her written submissions that:

The fact that the fear is not clearly articulated in the Judgment supports the submission that the learned Judge erred, as whilst the fear influenced the decision it was not warranted.

[29]      The balance of Catherine’s challenge is really an argument that the decision the Judge reached was “plainly wrong” because having found Paul’s conduct amounted to psychological abuse, and that the status quo was not promoting the welfare and best interests of the two girls, the Family Court could not decline to exercise its discretion in favour of requiring contact and, potentially, removal of the girls from Paul’s day-to-day care.

Test on appeal

[30]      This is a general appeal, not an appeal from the exercise of a discretion.27 The principles articulated in Austin Nichols & Co Inc v Stichting Lodestar therefore apply.28 This Court is to reach its own view on the merits of the appeal, but the appellant has the onus of satisfying the Court that the decision under appeal is wrong and should be altered. What, if any, influence the Family Court’s reasoning should have is a matter for this Court.29

Discussion

[31]      Unfortunately, there was an inevitable asymmetry at the hearing of the appeal due to the absence of any contradictor. Paul did not participate in the hearing, and I did not have the benefit of submissions from counsel for the children.

27     Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [33].

28     Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.

29     Kacem v Bashir, above n 27, at [31].

[32]Despite that, the following issues require consideration:

(a)First, did the Judge come to the hearing with a closed mind such that it can be said the decision was affected by predetermination?

(b)Second, was the decision plainly wrong?

Predetermination

[33]      In Wilson v Parole Board, Mallon J adopted the Supreme Court’s fair-minded lay observer test30 in relation to a challenge based on predetermination.31 And in AA v Family Court at Auckland Courtney J agreed that in cases involving judicial decision makers the fair-minded lay observer test is appropriate, saying:32

[4] Whilst there is clearly a distinction between apparent bias and pre- determination, where the decision-maker is a judge or has a quasi-judicial function, asking whether he or she would have appeared, to a fair-minded lay observer, to have pre-determined the matter is more appropriate than merely enquiring whether, as a matter of fact, that had happened.

[34]      The approach to pre-determination involving judicial decision-makers is therefore different to that adopted for allegations of pre-determination on the part of administrative decision-makers, where classically the enquiry involves assessing if there is actual pre-determination; that is, evidence the decision-maker had closed their mind or was not open to persuasion.33

[35]      There is a sound basis for a different approach to pre-determination when it concerns a judicial decision-maker. Assessing what the fair-minded lay observer would conclude in relation to whether a judicial officer had pre-determined a matter

— as opposed to looking for evidence of actual pre-determination — is more consistent with the role of a judge and the standard of impartiality required. Judges,

30 Saxmere Co Ltd v Wool Board Disestablishment Co Ltd [2009] NZSC 72, [2010] 1 NZLR 35. The test articulated in that case is: if a fair-minded lay observer might reasonably apprehend that a judge might not bring an impartial mind to the resolution of a question the judge is required to decide, the judge is disqualified.

31 Wilson v New Zealand Parole Board HC Christchurch CIV-2010-409-2933, 20 May 2010 at [22].

32 AA v Family Court in at Auckland [2018] NZHC 1638, [2018] NZFLR 543, (2018) 31 FRNZ 729, [2018] NZAR 1101 at [4].

33 For recent endorsements of this approach, see Rangitira Developments Ltd v Sage [2020] NZHC 1503 and Financial Services Complaints Ltd v Chief Ombudsman [2021] NZHC 307.

unlike administrative decision-makers, are of course expected to bring complete neutrality to their task. It should not therefore be necessary to point to actual pre- determination, but simply an appearance of it from the perspective of the fair-minded lay observer. Such an approach does not set the bar too low. The fair-minded lay observer still requires some evidential foundation before they will find a judicial officer has, or may be at risk of, predetermining a matter.

[36]      That evidential foundation is simply lacking in the present case. Having reviewed the transcript of the hearing, there is no indication that the Judge’s personal experiences as counsel played an inappropriate part in her decision. As I observed to Ms Marriner during the hearing, all judicial officers bring to the bench the accumulated experience they have acquired while in practice. That is one of the strengths of our system of appointment. In this case, Judge Harrison was alive to the possibility a decision to remove the girls from Paul’s care could cause him to respond negatively. Although unlikely, that risk might include a risk of harm to the children. When weighing the multifactorial considerations both for and against judicial intervention, the Judge was entitled to consider this risk. The fact that it had been one the Judge was aware of as a consequence of actual experience as a practitioner on its own would not lead a properly informed lay observer to consider she had predetermined the applications.

[37]      On the contrary, the evidence clearly indicates that it was a live issue that had concerned Dr Rai in the course of preparing for the hearing. The following exchanges reveal first, the Judge’s measured consideration of the risk of physical harm to the children, and Dr Rai’s concern that it was a risk requiring the Court’s consideration. During cross-examination by Ms Marriner, Dr Rai observed:

QSo, [Paul] wanted reconciliation [with Catherine] and he was still wanting that and engaging. Are we seeing then an alignment with him deciding a reconciliation is now actually not going to happen so I’m out of the Court proceedings?

AIn my…27 years of Family Court work, I’ve never been as confused as I am with this one. And I think that’s coming quite clear in my evidence as well that I am really worried about these kids. I’m worried about these kids because [Catherine] might feel that, you know, she has been victimised by what [Paul] has done, but I’m just worried where this could go and I’m also worried that if the Court makes a

decision about restricting, for example, these children’s contact in any way with [Paul], I believe that he’s going to walk away.

Q          So we’ll just park that for a second?

[38]      Later, during questioning from the bench, the following exchange occurred with Dr Rai:

QWell, if at the nub of [Paul’s] thought process…[is] to say “I’m not sharing the children” – one outcome is that he walks away, is there any risk that he would pose a physical threat to the children in terms of “I’m not sharing you, I’m not going to make you available”?

A          I —

QI’ve had an instance in practice of a parent killing children. Now, I — it’s the elephant in the room but when I hear that this is a case of entrenched hatred, that tells me there is a thought disorder going on, tells me that it’s an extreme to walk away from the children but he has done that with [Theo] and I just want to know what the risks are of him not sharing and causing some sort of physical harm to anybody involved?

AYour Honour, I did have a sleepless night thinking about this because what could happen and as I am very open about that, that how I have struggled with this case and with my evidence. Now, he is a staunch farmer, he’s got access to guns and, yes, he has told me that he doesn’t want to share.

QSo it’s just something I need to be mindful of. I’m not being dramatic when I have to think along these lines, am I?

A          Yes, I — that thought did cross my mind.

[39]      The Judge then referred Dr Rai and counsel to a research paper she was familiar with dealing with entrenched post-separation parental hatred, and its impact on other family members. Ms Marriner submitted the Judge’s production of the research paper revealed she was “concerned about this issue prior to the commencement of the hearing, leaving [Ms Marriner] concerned about predetermination.”

[40]      I do not accept this submission. It is clear from the exchange between the Judge and Dr Rai noted above that far from having predetermined the outcome, the Judge was simply asking an expert witness for a professional opinion on the risk of physical harm Paul might present to the children in the event of an adverse Court decision.

[41]      The answer the Judge received from the psychologist was that this was a question that had caused the witness to have “a sleepless night thinking about” it. Far from an indication that the concern was one driven only by the Judge’s experience during practice, the evidence indicated the risk was a real one that an expert witness was concerned about. So, it was entirely appropriate for the Judge to have raised, and considered the issue, both at the hearing, and in her decision.

[42]      Having heard the expert’s concern, the Judge even said, “I’m not being dramatic when I have to think along those lines, am I?” Dr Rai again confirmed that the thought had crossed her mind too. I consider the risk of physical harm was simply one factor the Judge thought she needed to be mindful of. None of that sounds in predetermination, or even over-emphasis on the issue. And that is in fact what is revealed by the Family Court’s judgment, where, amongst a list of no less than 21 discrete considerations the Judge took into account in reaching her decision — seven of which related to Paul himself —34 the last factor she considered was:

The unknown reaction of the respondent to any court ordered change of living arrangements for the girls or court ordered contact with their mother.

[43]      Neither the record of the hearing, or the decision under appeal, support the criticism made of the Judge or her approach.

Decision was plainly wrong?

[44]      Catherine submits that the Judge’s finding was plainly wrong in circumstances where Paul:

…is not communicating, consulting or co-operating with the Appellant about the children, the children have been deprived continuity of care with the Appellant, the children have been deprived of [a] continuing relationship with the Appellant and wider family members and their emotional safety is at risk.

[45]      In essence, I take this to be a submission that having found Paul’s conduct amounts to a form of psychological abuse of the girls, there was no other outcome available than to grant the applications as sought.

34     Family Court decision, above n 2, at [108]–[109].

[46]      Catherine presented her case on the basis that the sole cause of the current family dysfunction was Paul’s inappropriate and abusive conduct, driven by entrenched hatred as a result of the loss of the relationship with Catherine. The difficulty with this approach is that it ignores both the expert evidence, and the Judge’s assessment of it, when reaching her decision. It is clear from both that responsibility for the current situation cannot all be laid at Paul’s feet. Indeed, the Judge found, entirely in keeping with Dr Rai’s evidence, that Catherine’s conduct as well as that of the children had also played a key part.

[47]      As the Judge noted, Dr Rai firmly resisted the suggestion that the cause of the current situation was parental alienation of the girls in the traditional sense. Dr Rai saw Paul’s behaviour not as part of a deliberate plan, but due to a total lack of insight.

[48]      During cross-examination by Ms Marriner, Dr Rai noted that there were “two resisting parents” or two parents doing the same thing:

So from my data from [Bella] that she wasn’t treated well by her mother. She couldn’t get on. This is prior to separation. Nothing was done to repair that relationship, so we can see that, you know, where this has come to. The children are resisting and refusing contact with the parent so we have got actually two resisting, two parents, you know, who are doing the same thing…the children are following [Bella’s] pattern of resistance.

[49]Later in her evidence Dr Rai noted:

[Paul] was distressed at the marriage breakdown, had absolutely no insight, no filter, telling the kids everything and the kids became his confidante and, you know, his soldiers and he started to get comfort in the children and on the other hand, there were some factors contributed by [Catherine] where, you know, children are saying that these things happened and that’s their perception which is their reality and nothing was done to address that.

[50]      And later in her cross-examination by Ms Marriner, Dr Rai returned to her assessment of the causes of the current dysfunction:

…I mean if you look at the face of it, it’s alienation, but when you unpack it, you can see that, you know, there are three major factors here is contribution by children, contribution by father, contribution by mother.

[51]      This evidence led the Judge to conclude that the current unhappy situation was one that Paul, the children and Catherine had all contributed to; this was a

multifactorial case of alienation, where Catherine’s own conduct was part of the picture. And, as I have noted above, this led the Judge, correctly in my view, to conclude:

…from the evidence before me I find that a combination of factors has led to this situation with contributions coming from all parties, including the children.

[52]      I also bear in mind the finding of the Judge that the girls will resist contact with their mother, even if supervised.35 In fact, it is likely the police or social workers would need to take the girls to the contact time under warrant. During cross-examination of Dr Rei by Ms Marinner, the following exchange took place:

Q.If the girls were told "this is the Judge's decision and this is   what has to happen", what do you expect their reaction-to be?

A.       Angry towards [Catherine].

Q.       Do you think they'll comply with the Judge?

A.       It has to be enforced.

Q.So to enforce, we'd have to have - if it was a parenting order; a warrant to enforce?

A.       Yes.

Q.Which means a social worker or police officer picking them  up and taking them to wherever they need to be?

A.       That's correct.

Q. If a police officer turns up, what do you expect, knowing these girls, their response to be?

A.They're going to be, they're going to be upset, they’re going  to be upset because this is what is happening, but these girls are quite — they've got good standing in the community, you know, the activities they do. And that, this has been my struggle with this case, that that — that both [Paul and Catherine] doesn't — they don't, I mean, they must be good parents to raise girls like that, kids like that, they are really good kids. So your question, answer to your question, that it will be embarrassing for them to have a police turned up. I still believe that [Iris] is a better option from Linking Kin.

Q.       To enforce it, she goes and gets them?

35     At [108](j).

A.       She goes and gets them.

Q.       Do you think if she turned up, they would go with her?

A.They're not those sort of kids who will run away and they abide by rules. I think they will.

[53]      Given the girls’ likely reaction to an order requiring contact with their mother, making one could be harmful to Catherine’s relationship with them given the likely need to enforce the order by involving Police or social workers.

[54]      Given the evidence — particularly the evidence of Dr Rai — the difficult decision the Judge arrived at was clearly open to her. Catherine has failed to persuade me that the decision was, therefore, wrong.

Further evidence on appeal

[55]      During the hearing I received quite extensive submissions from the bar about recent evidence that the current circumstances of the girls indicated that, contrary to the Judge’s finding, the girls are showing signs of distress and difficulty at school. Reference was made to Jade’s school report. I also heard about the recent re-kindling of the relationship between Bella and Catherine, and the possibility that rather than ordering Natasha and Jade’s removal from Paul’s home in favour of boarding at their school, Bella’s residence presented a further option.

[56]      I indicated that if those matters were to be considered, there needed to be an evidential foundation for them. I also asked for the audio recording of a conversation Paul was said to have had with the girls, a transcript of which was in evidence before the Family Court.

[57]      I then received further affidavits from Catherine and Bella. They were intended to reveal that Paul was not meeting the essential needs of the girls, and that the environment was abusive and damaging.

[58]      The matters raised in the recent affidavits are of course troubling, but nothing in the evidence I have read suggests to me that the essential balance settled on in the Family Court is incorrect, or ought to be disturbed with untested new evidence that

Paul has not had an opportunity to respond to. The allegations in the affidavits ought to be pursued before the Family Court, given its on-going involvement with the family and the implementation of the s 31 orders in relation to sibling contact. It may be that the Family Court considers the evidence changes the balance, but it would be wrong for this Court to interfere in a complex and difficult situation on appeal. In that respect, I do not consider it would be appropriate for the Court to rely on such evidence to allow this appeal, which in turn would radically alter Natasha and Jade’s living arrangements without hearing from the, or providing Paul with an opportunity to respond.

[59]      Ultimately, the wishes of the girls need to be given some weight. I share the Judge’s hope that with time, they will understand the importance of their mother in their lives, and will seek her out. The Judge’s view this could well occur has been borne out, given the recent contact with Bella.

Conclusion and result

[60]      Although it will be distressing for Catherine, I have concluded that there was no error in the approach of the Judge. Her task was a difficult one. She was required to consider a range of risks, causes and possible outcomes in arriving at her decision. I consider that not only was the conclusion she reached open to her on the evidence, but it was also the correct one. And there is nothing in the argument that the decision under appeal was the result of predetermination.

For the foregoing reasons the appeal is dismissed.

Isac J

Solicitors:

Parker Marriner, New Plymouth for Appellant