Carter v Scott
[2020] NZHC 1447
•26 June 2020
NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION,
PLEASE SEE judgments/
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE
CIV-2020-470-26
[2020] NZHC 1447
BETWEEN CARTER
Appellant
AND
SCOTT
Respondent
Hearing: 17 June 2020 Appearances:
J W Howell and D Wilsher for Appellant A Brown for Respondent
R Adams as Lawyer for Child
Judgment:
26 June 2020
JUDGMENT OF LANG J
[on appeal under Care of Children Act 2004]
This judgment was delivered by me on 26 June 2020 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date……………
Solicitors:
McKenzie Elvin Law, Tauranga
CARTER v SCOTT [2020] NZHC 1447 [26 June 2020]
[1] This appeal concerns arrangements relating to the day to day care of Aaron Scott, who was born on 17 September 2015.
[2] Aaron’s parents, Mr Scott and Ms Carter, have been embroiled in litigation regarding Aaron’s care arrangements since he was three months of age. On 14 February 2020 Judge S J Coyle delivered a decision in which he held that Aaron’s day to day care should henceforth be the responsibility of Mr Scott, who lives in Auckland.1 Up until that time Aaron had been living with Ms Carter, who lives in the Tauranga region. The Judge also dismissed a cross-application by Ms Carter for an order reducing the amount of contact Mr Scott could have with Aaron.
[3]Ms Carter appeals against both aspects of the Judge’s decision.
The Judge’s decision
[4] As would be expected in a case of this type, the Judge’s decision is a lengthy and comprehensive document that covers a multitude of issues. It will be necessary to discuss some of these when analysing the grounds Ms Carter advances on appeal. In summary, however, the Judge considered the evidence disclosed a clear pattern of conduct, attitudes and beliefs by Ms Carter that meant there were significant adverse risks for Aaron’s relationship with Mr Scott if he was to remain in her household.2
[5] The Judge then analysed the risks involved in requiring responsibility for Aaron’s day to day care to be transferred to Mr Scott against those that would remain if no such order was made. The Judge concluded a change of the day to day care arrangement was necessary for the following reasons:
[89] The conclusion that I have reached after considering all the evidence, the submissions of counsel, and after taking some days to weigh and carefully consider the competing issues, is that there are too many risks for Aaron, arising out of the maternal family’s lack of support of Aaron’s relationship with Mr Scott, the active denigration of Mr Scott to Aaron, and from Aaron’s continued exposure to conflict. These risks to Aaron’s long-term future welfare and best interests will continue if Aaron remains in Ms Carter’s care. The consequences of allowing these risks to continue outweigh the risks in changing Aaron’s care. I have no confidence that Ms Carter appreciates her agency or that her conduct has directly and adversely impacted upon Aaron’s
1 [ ]
2 At [78].
relationship with Mr Scott, exposed Aaron to ongoing conflict, and therefore adversely impacted upon Aaron’s best interests and welfare. The need to protect Aaron from the ongoing exposure to the negative attitudes and lack of support for his relationship with his father by Ms Carter, Mrs Smith [Ms Carter’s mother] and Mr Carter outweighs the principle that there should be continuity in Aaron’s care.
[90] This has not been an easy decision to reach, and I am alive to the real and tangible consequences for the parties, but most importantly to Aaron, which will flow from this decision. It is my decision that Aaron’s future best interests and welfare will be met by his now being in the primary day to day care of Mr Scott. The risks of a change in Aaron’s care will be lessened by the fact that since the Consent Order, Aaron has been in the day to day care of Mr Scott and Ms […..] for 4 days a fortnight, and thus living with them is not foreign.
Approach
[6] There is no dispute regarding the approach the Court is required to take in deciding the appeal. Appeals from the Family Court are governed by s 143 of the Care of Children Act 2004 (the Act). Section 143(4) provides that ss 125 to 130 of the District Court Act 2016 are to govern the procedure used on appeals under the Act. Section 127 of the District Court Act provides that appeals will be by way of rehearing.
[7] Conventional appellate principles therefore apply.3 In short, Ms Carter is entitled to the opinion of this Court as to whether the Judge’s decision was correct. She bears the onus, however, of showing why and how it is wrong.
[8] This Court is not required to defer to the Judge’s conclusions merely because the Family Court is a specialist body that deals with proceedings of this type as its core function. It must nevertheless exercise “customary caution” to the extent that the Judge enjoyed a special advantage from seeing and hearing the witnesses.45
Relevant principles
[9] There is no dispute regarding the principles applicable both at first instance and on the appeal. Section 4 of the Care of Children Act 2004 (the Act) provides as follows:
3 Austin Nicholls & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
4 At [13].
4Child’s welfare and best interests to be paramount
(1)The welfare and best interests of a child in his or her particular circumstances must be the first and paramount consideration—
(a)in the administration and application of this Act, for example, in proceedings under this Act; and
(b)in any other proceedings involving the guardianship of, or the role of providing day-to-day care for, or contact with, a child.
(2)Any person considering the welfare and best interests of a child in his or her particular circumstances—
(a)must take into account—
(i) the principle that decisions affecting the child should be made and implemented within a time frame that is appropriate to the child’s sense of time; and
(ii) the principles in section 5; and
(b)may take into account the conduct of the person who is seeking to have a role in the upbringing of the child to the extent that that conduct is relevant to the child’s welfare and best interests.
(3)It must not be presumed that the welfare and best interests of a child (of any age) require the child to be placed in the day-to-day care of a particular person because of that person’s gender.
(4)This section does not—
(a)limit section 6 or 83, or subpart 4 of Part 2; or
(b)prevent any person from taking into account other matters relevant to the child’s welfare and best interests.
[10] The principles to be applied in determining a child’s welfare and best interests are set out in s 5, which relevantly provides:
5Principles relating to child’s welfare and best interests
The principles relating to a child’s welfare and best interests are that— (a) a child’s safety must be protected and, in particular, a child must be protected from all forms of violence (as defined in sections 9(2), 10, and 11 of the Family Violence Act 2018) from all persons, including members of the child’s family, family group, whānau, hapū, and iwi:
(b)a child’s care, development, and upbringing should be primarily the responsibility of his or her parents and guardians:
(c)a child’s care, development, and upbringing should be facilitated by ongoing consultation and co-operation between his or her parents,
guardians, and any other person having a role in his or her care under a parenting or guardianship order:
(d)a child should have continuity in his or her care, development, and upbringing:
(e)a child should continue to have a relationship with both of his or her parents, and that a child’s relationship with his or her family group, whānau, hapū, or iwi should be preserved and strengthened:
(f)…
[11] As can be seen from s 4(1)(a), the welfare and best interests of the child are the first and paramount consideration in any proceedings under the Act. Section 4(2)(b) makes it clear that the conduct of parents will only be relevant to the extent it affects the child’s welfare and best interests. Furthermore, s 4(3) prohibits the Court from presuming that welfare and best interests of a child require the child to be placed with any person merely because of that person’s gender.
[12] The principles set out in s 5 are mandatory considerations, to the extent they apply in any given case, in considering the welfare and best interests of the child. No single principle has any presumptive weight when compared to the others. The overall objective is to determine the outcome that will best serve the welfare and best interests of the child.5
[13] The principles of particular relevance to the present case are those in s 5(a), (c), (d) and (e).
Grounds of appeal
[14] On Ms Carter’s behalf, Mr Howell advances the following broad grounds of the appeal:
(a)The Judge erred in failing to give weight to matters contained in a report prepared by a psychologist under s 133 of the Act.
5 Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [18].
(b)The Judge selectively and inappropriately took into account unfavourable observations made about Ms Carter by other Judges in earlier decisions.
(c)The Judge did not have the benefit of the views of the child.
Did the Judge err in failing to give weight to matters contained in the s 133 report?
[15] A psychologist who is directed to prepare a report under s 133 of the Act will generally be asked to consider and report on the factors listed under the definition of “psychological report” in s 133(1) of the Act. This is often referred to as the “standard brief”. The psychologist may also be asked to consider any other matter the Court thinks fit.6
[16] The s 133 report in the present case was prepared by Mr Michael Irving, a registered psychologist based in Gisborne. Mr Irving had earlier prepared a report dated 16 October 2016 when issues regarding Mr Scott’s contact with Aaron were before the Family Court on an earlier occasion.
[17] By the time the present report was ordered Aaron had been displaying aggressive and anti-social behaviour both at home with Ms Carters and at his kindergarten. This resulted in Aaron being excluded from the kindergarten. At the commencement of his report dated 24 July 2019 Mr Irving summarised his brief as follows:
Updated brief
The standard brief to prevail together with the following:
(a)The psychologist is to consult with the paediatrician who has been directed to make a paediatric assessment so that the psychologist can determine if there are underlying medical, developmental or behavioural issues for Aaron causing him to behave in the manner he is and which may impact on any care arrangements.
(b)And if so, how that may best be managed by the parents.
6 Care of Children Act 2004, ss 133(1)(g) and (5).
[18]Mr Irving summarised his conclusions in relation to issue (a) as follows:
Executive summary, analysis and comments
92 Dr Goodson [a paediatrician] is in the process of formulating a diagnosis for Aaron. After consulting directly with the paediatrician, sighting clinical assessment results, interviewing the adult parties, interviewing Aaron himself, and observing Aaron interacting in his two home settings (and his presenting with ADHD [Attention Deficit Hyperactivity Disorder] and ASD [Autism Spectrum disorder] features) the writer can confidently advise the Court that Aaron will be assessed to having an Autistic Spectrum Disorder and thus can be considered a Special Needs Child.
93 This provisional diagnosis is tabled in the interests of moving things forward for Aaron by signalling to and preparing the Court, care adults, and agencies in advance how to best manage and to cater for Aaron’s special needs. There is some urgency to this. Aaron was recently excluded from his child-care centre and the slow mobilisation of practical and professional support is causing stress to his current primary caregivers.
94 I am mindful Dr Goodson and the multi-disciplinary team will be providing a comprehensive diagnosis and treatment plan to practically address Aaron’s ASD (including his toileting issues and educational support required). The writer’s following comments in this report is not intended to compromise or supersede this professional process in progress.
[19] The balance of the report then identified concerns Mr Irving held about arrangements for Aaron’s future care based on the fact that he was likely to be diagnosed as being a child with special needs. In short, Mr Irving considered this meant Aaron would find any change in his living arrangements both stressful and difficult to cope with. As a result, consideration of any change in his day to day care arrangements needed to take into account the likelihood that he was a special needs child.
[20] The hearing in the Family Court took place on 20 and 21 January 2020. In late 2019 Ms Adams, the lawyer for Aaron in both the application before the Family Court and the present appeal, spoke to Dr Goodson to obtain updated information regarding the provisional diagnosis referred to by Mr Irving in his report. In an email Ms Adams sent to counsel for Mr Scott and Ms Carter on 21 November 2019 she summarised her discussion with Dr Goodson as follows:
6.There has been no diagnosis, and Dr Goodson says there is not any presumption or expectation.
7.Dr Goodson is a general paediatrician, and not a child behavioural expert. The specialist assessment must be made by the Multi Disciplinary Assessment Team. Dr Goodson’s role is to initiate and co-ordinate that assessment.
8.Aaron’s scores on the initial testing is mixed, with some of his behaviours in the moderate-mild level and some spiking as more serious concerns.
9.There has not been a provisional, let alone a definitive, diagnosis of Autistic Spectrum Disorder or any other psychological or psychiatric condition.
10.Dr Goodson made the observation that in Aaron’s case there may be a number of contributors to his behaviour. Some may be internal in terms of Aaron’s makeup, some may be extrinsic in terms of his response to stressful situations or environment factors, and some may be a combination.
[21] The Judge was clearly of the view that Mr Irving had either misinterpreted his discussion with Dr Goodson in July 2019 or that the matters discussed had been superseded by the observations Dr Goodson made to Ms Adams in November 2019.
This is evident from the following passages of the Judge’s decision:7
[34] Mr Irving, the s 133 report writer, appears to have adopted the narrative of Aaron being diagnosed with autism. He recorded at [92] of his 24 July 2019 report:
Dr Goodson is in the process of formulating a diagnosis for Aaron. After consulting directly with the paediatrician, sighting clinical assessments results, interviewing the adult parties, interviewing Aaron himself, and observing Aaron interacting in his two home settings (and is presenting with ADHD and ASD features) the writer can confidently advise the Court that Aaron will be assessed to having an autism spectrum disorder and thus can be considered a special needs child.
[35] Mr Irving erred in his unequivocal assertion that Aaron will be diagnosed with ASD, as it is by no means clear that there will in fact be such a diagnosis. Furthermore, Mr Irving’s brief is recorded as being the standard brief together with:
(a)the psychologist is to consult with the paediatrician who has been directed to make a paediatric assessment so that the psychologist can determine if there are underlying medical, development and behavioural issues for Aaroncausing him to behave in the manner he is and which may impact on any care arrangements.
(b)And if so, how that may best be managed by his parents.
7 [ ], above n 1.
[36] That brief did not require Mr Irving to make his own diagnosis, but rather to simply enquire of the paediatrician in relation to any assessment undertaken. Given that Ms Adams’ email makes it quite clear that there was not at the time of Mr Irving’s report, either a provisional or definitive diagnosis of autism spectrum disorder of any other psychological or psychiatric condition, it is hard to see the basis upon which Mr Irving was able to “confidently advise the Court” that Aaron would be assessed as having an autism spectrum disorder let alone ADHD and ASD features.
[37] While all counsel accepted that Mr Irving as a suitably qualified expert in terms of his ability to provide reports under s 133 of the COCA, there is nothing in the qualifications set out by Mr Irving to indicate that Mr Irving was or is suitably qualified to make his own independent diagnosis of ADHD or ASD. Mr Irving’s report contains a series of recommendations for the parents based upon Aaron have a definitive diagnosis of ASD, and on the basis that Aaron is a special needs child. Indeed, when I read Mr Irving’s report it appears much of it does not address the specific matters he was required to address in terms of his brief as set out on page 1 of his report. For example, nowhere in his report does he comment on Aaron’s attachment or the issue of alienation or estrangement. I found the majority of his opinions contained in his report and his oral evidence to be of little meaningful or credible assistance to me.
[38] The difficulty, as I perceive it, in Mr Irving accepting (erroneously) or purporting to make a diagnosis of ASD is that he has consequently not undertaken any other assessment or explored any other possible reasons for Aaron’s behaviours. Additionally, the criticisms he has of Mr Scott’s lack of discipline and his inability to engage Aaron in a task in which Aaron had no interest do not appear to consider the fact that Aaron had at that stage not seen his father for six months and had only become recently reacquainted with him. Consequently, Mr Irving’s assessment about the supposed weaknesses in Mr Scott’s parenting of Aaron are given little weight by me.
[22] Mr Howell submits there are several errors in the approach taken by the Judge. First, he contends the Judge ought to have adjourned the hearing part-heard, or delayed giving his decision, until the multi disciplinary team had completed its diagnosis. The Judge could then have factored the diagnosis into his decision as to which parent should have the day to day care of Aaron. It might also be relevant to conditions regarding the level and nature of any contact to be exercised by the parent who was not to be responsible for Aaron’s future day to day care.
[23] There are several difficulties with this submission. First, no counsel asked the Judge to either adjourn the hearing on a part-heard basis or delay delivery of his decision to await the outcome of the diagnosis. Secondly, there is no guarantee the parties would have been in favour of either of those alternatives. Thirdly, by the time of the hearing in the Family Court there was no indication when the diagnosis would
be made. Counsel advised me that it is not yet available even though five months have now elapsed since the hearing in the Family Court. Section 4(2)(a)(i) of the Act requires those who make decisions that affect a child to do so within a timeframe appropriate to the child’s sense of time. Any decision to adjourn the hearing or delay judgment would plainly not give effect to this principle. I therefore do not consider there is any merit to this argument.
[24] Next, Mr Howell submits the Judge was wrong to say Mr Irving’s brief did not require him to reach any diagnosis about Aaron’s condition. There is some force to this submission because the brief required Mr Irving not only to consult the paediatrician but also to “determine if there are underlying medical, developmental or behavioural issues for Aaron causing him to behave in the manner he is and which may impact on any care arrangement”. There may be an argument as to whether a determination is the same thing as a diagnosis but in the present context that may largely be a distinction without a difference. The short point is that the psychologist’s brief required him to make a determination as to whether Aaron’s behavioural issues were caused by underlying medical or developmental issues. I do not consider Mr Irving could be criticised for making that determination provided it was within his level of expertise.
[25] Next, Mr Howell challenges the fairness of the Judge’s observation that Mr Irving did not have the necessary qualifications to make a diagnosis that Aaron suffers from either ASD or ADHD. He submits the Judge ought to have challenged Mr Irving directly about his qualifications if he was going to question them in his judgment. I accept there is also some force in this submission because I do not consider Mr Irving claimed he had the necessary expertise to make such a diagnosis himself. Reading his evidence as a whole, I consider he was merely reporting his understanding of the diagnosis the multi disciplinary team was likely to make. He expressly said his comments were “not intended to compromise or supersede” that process.
[26] I also consider Mr Irving had obtained a reasonable amount of background information that supported the prospect of such a diagnosis being made. Mr Irving had observed the manner in which Aaron interreacted with others in both parents’
households. He had also seen Aaron interreacting with staff and children at his kindergarten. In addition, he had spoken to Aaron’s nurse practitioner and the pre- school public health nurse. Finally, he had discussed Aaron’s behaviour with Dr Goodson and had received from him two assessment profiles. I therefore accept that some of the criticism the Judge directed at Mr Irving may not have been justified.
[27] The problem that arose, however, is that in saying he could “confidently advise” that a diagnosis of ASD would be made, Mr Irving expressed his view in very strong terms. Furthermore, his expectation as to Aaron’s diagnosis led to the balance of Mr Irving’s report being strongly influenced by it. Virtually all of Mr Irving’s observations and suggestions proceeded on the premise that Aaron is a special needs child when that had not been established by the time of the hearing in the Family Court and is yet to be established five months later. The fact that Ms Adams reported a very different scenario after speaking with Dr Goodson in November 2019 meant the Judge had little option but to place significantly less weight on Mr Irving’s report than might otherwise have been the case.
[28] Next, Mr Howell contends the Judge erred in rejecting Mr Irving’s evidence in favour of a theory for which there was no evidential basis. This was that Aaron’s behavioural issues may have been caused in whole or in part by the fact that Mr Scott had no contact with him between November 2018 and February 2019. The Judge considered there was “a distinct possibility” that the cessation of contact may have caused or contributed to the issues that were being observed during this period with Aaron’s behaviour.8 Mr Howell submits there was no evidential basis for this theory because Ms Carter had already reported her concerns with Aaron’s behaviour before Mr Scott ceased to have contact with him in November 2018.
[29] The Judge based his observation on evidence given by Mr Scott, his mother and his current wife to the effect that, although Aaron displayed some initial behavioural issues once contact resumed, these gradually subsided over time. The Judge concluded, however, that he could place no weight on this explanation because
8 [ ], above n 1, at [42].
as a Judge he was not qualified to diagnose the causes of children’s behaviour.9 The Judge then observed:
[43] But the effect of Mr Irving erroneously reporting that there has been a diagnosis and/or making his own diagnosis of Aaron being on the autism spectrum is that he closed his mind to the potential for any other explanation as to Aaron’s behaviours, including the possibility that there may be a direct correlation with the cessation in Aaron’s contact with his father. Thus, Mr Irving’s consequent narration of Aaron as being a special needs child has occurred without any proper determination.
[30] As I read this passage the Judge did not reject Mr Irving’s evidence in favour of another theory. Rather, he considered that Mr Irving’s reliance on the likely diagnosis of ASD meant he had effectively closed his mind to other alternative explanations for Aaron’s behaviour. I consider the Judge was justified in making that observation.
[31] Finally, Mr Howell submits the Judge was wrong to criticise Mr Irving for not dealing with issues relating to Aaron’s attachment and issues relating to alienation or estrangement.10 He submits Mr Irving’s brief did not require him to consider those issues. This submission cannot be sustained because Mr Irving’s brief comprised both the standard brief and the special brief relating to liaison with Dr Goodson. The standard brief required the psychologist to consider Aaron’s attachment to others.
[32] The issue that arises in any event is whether, even if the Judge erred in concluding little weight should be given to Mr Irving’s report and evidence, this led to an error in the ultimate decision. As I have already observed, Mr Irving’s evidence was to the effect that Aaron’s status as a special needs child meant he would have difficulty in coping with any sudden change in his day to day care. I consider this issue is answered by the fact that the Judge undertook a very careful assessment of the likely risks inherent in any change of Aaron’s day to day care arrangements. He considered these were ameliorated significantly by the fact that Aaron was already spending four days in every fortnight living in his father’s household. I do not consider he needed to go further and factor in the prospect that Aaron might have special needs because of an underlying disorder.
9 At [42].
10 At [37].
[33] It follows that, although I accept some of the Judge’s criticism of Mr Irving’s approach may not have been justified, that issue did not affect the correctness of the Judge’s ultimate decision.
Reliance on observations made by Judges in earlier judgments
[34] Numerous different Judges had dealt with issues arising out of Aaron’s parenting arrangements before Judge Coyle decided the applications that have led to the present appeal. Mr Howell submits the Judge wrongly placed weight on unfavourable observations made about Ms Carter by other Judges in earlier judgments. He contends these coloured the Judge’s view of Ms Carter, and this had a significant impact on his assessment of the evidence and the weight to be given to Mr Irving’s report. Mr Howell also contends the Judge “cherry picked” observations in earlier judgments that were unfavourable to Ms Carter and failed to refer to those that were unfavourable to Mr Scott.
[35] As an example of an earlier relevant judicial criticism of Mr Scott, Mr Howell referred me to the following observations made by Judge Parsons in a decision given on 31 October 2017. On that date the parties agreed to consent orders being made at the commencement of a four day hearing:11
[8] Each of them have read the psychological report and will be more than aware of what this means in terms of the risks for their son. A better kind of environment is required for him but this will not be easily got to. What I need to acknowledge is that while Mr Scott has experienced [Ms Carter’s] behaviour as alienating in terms of Aaron in a sense that he felt he has had his son taken away unilaterally by [Ms Carter], what is important to note is that [Ms Carter] suffers from post-traumatic stress disorder and has anxiety issues. That means she is at times genuinely concerned not just for herself but also for Aaron. This needs to be taken into account of by Mr Scott in terms of her reactions to communication from him and the effects of the breakdown of the relationship.
[36] I do not take this passage as being critical of Mr Scott. Rather, the Judge suggested Mr Scott needs to understand that Ms Carter’s conduct may be influenced in part by the fact that she has suffered from both post-natal depression and post traumatic stress disorder.
11 [ ].
[37] I have not found any significant criticism of Mr Scott’s conduct in any of the earlier judgments that were made available to me. Nor do I accept in any event that the Judge allowed findings made by other Judges to inappropriately influence his view of Ms Carter. The Judge initially referred to earlier judgments in a neutral way in the opening paragraphs of his decision.12 In this section he set out the history of the proceedings that have occupied the attention of the Family Court since shortly after Aaron’s birth. He subsequently referred to earlier judgments in greater detail when he analysed the risks inherent in the competing care proposals. At that stage he explained why the findings made by Judges in earlier decisions were relevant to the issues he was required to decide.
[38] By way of example, the Judge referred on several occasions to an oral decision given by Judge Geoghegan on 17 April 2019.13 This followed an incident that occurred in October 2018, when Aaron returned from having contact with Mr Scott with burns on his arm. This subsequently prompted Ms Carter to obtain orders suspending Mr Scott’s contact with Aaron on a without notice basis. Mr Scott then ceased to have contact with Aaron until contact resumed on a supervised basis in February 2019. Judge Geoghegan held there was no need for Mr Scott’s contact with Aaron to be on a supervised basis. He also criticised Ms Carter for the manner in which she had responded to Aaron returning from Mr Scott’s care with the burns. He was satisfied the burns had been caused accidentally, and that no blame attached to Mr Scott for that incident.14
[39] Judge Coyle devoted a section of his decision to the burns incident and its aftermath.15 He considered it showed Ms Carter used an unfortunate incident, without any reasonable justification, as an excuse to require Mr Scott then ceased to have supervised contact with Aaron.16 He also observed that, although Ms Carter may originally have been well intentioned in applying for termination of contact between Aaron and Mr Scott, there was no justification for her ongoing insistence that contact be supervised because Mr Scott presented a safety risk to Aaron.
12 [ ], above n 1, at [2]-[11].
13 [ ], [2019] NZFC 2958.
14 At [19].
15 [ ], above n 1, at [25]-[31].
16 At [30].
[40]The Judge then went on to say:17
[31] The credibility findings of Judge Geoghegan are not binding on me. Rather, I need to make my own assessment of Ms Carter’s evidence solely based upon the evidence that has been given in Court before me. Having approached this hearing with an entirely open mind, I have found myself making the same observations and conclusions [as] Judge Geoghegan in relation to Ms Carter being disingenuous and her antipathy being so deeply rooted that it colours her ability to focus on what is in Aaron’s best interests and welfare. This is a case where the conduct of Ms Carter is directly relevant and requires careful consideration as it has adversely impacted the welfare and best interests of Aaron.
[41] I see no error in this approach. In cases relating to the ongoing care of children events that have occurred in the past are often, if not always, an important tool in assessing what is likely to happen in the future. Furthermore, Ms Carter acknowledged in cross-examination before Judge Coyle that she had been wrong to act as she did in relation to the burns incident.18 The Judge was therefore justified in referring to the incident because it demonstrated how Ms Carter had acted in the past when confronted with what she believed to be wrongdoing by Mr Scott. Importantly, however, the Judge expressly acknowledged he was not bound by Judge Geoghegan’s credibility findings and needed to reach his own conclusions.
[42] Equally importantly, the Judge went on to consider whether Ms Carter had altered her approach and attitude since April 2019.19 During that period several incidents had occurred of note.
[43] The Judge gave four examples. The first related to Ms Carter’s refusal to agree to a variation of the contact changeover arrangements after she moved from Papamoa to Omokoroa. For a period of approximately 12 months she required Mr Scott to pick Aaron up from Papamoa even though she now lived in Omokoroa. This meant Aaron was required to travel with Ms Carter from Omokoroa to Papamoa, where Mr Scott would pick him up. He and Mr Scott then drove to Auckland, passing Omokoroa on the way. The same occurred four days later on the return journey. This resulted in Aaron being required to spend up to 90 unnecessary minutes in the car during each
17 [ ], above n 1.
18 Notes of Evidence (NOE) at 173-174.
19 [ ], above n 1, at [62]-[69].
period of contact with Mr Scott. That situation ultimately required judicial intervention to resolve.
[44] Next, the Judge referred to events that occurred on Aaron’s birthday in September 2019. By that stage Ms Carter had said she was not prepared to deal with Mr Scott directly, and required him to make all contact with her through her mother, Mrs Smith. On Aaron’s birthday Mr Scott contacted Mrs Smith and sought permission to call Aaron to wish him happy birthday. Mrs Smith declined the request. Ms Carter acknowledged in cross-examination that her mother had made her aware of the request. She said she had been “busy and kinda forgot about it”.
[45] The third incident occurred in December 2019 when Ms Carter sought to vary the existing contact arrangements over Christmas, in part because her sister was travelling to New Zealand from Australia over the Christmas period. This ultimately resulted in Mr Scott spending more time with Aaron over that period than would otherwise have been the case, but the Judge observed that this was only because the altered arrangement suited Ms Carter.
[46] The final incident occurred shortly before the hearing, when Ms Adams asked to see Aaron at Mr Scott’s home. On this occasion Mr Scott asked for the changeover to occur at Katikati so he would not be required to drive to Omokoroa. Ms Carter refused this request and said she would call the police unless changeover took place at Omokoroa as required by the court orders then in existence. The Judge described this as a “nonsensical suggestion”.20
[47] These incidents led the Judge to conclude that, although Ms Carter asserted she had made changes, all of these had resulted in her continuing to control or denigrate Mr Scott. He therefore described her assertions as “self-serving and illusory”.21 The Judge was also critical of Ms Carter’s cross-application for an order reducing the amount of contact Mr Scott could have with Aaron.22 Her proposal was that Mr Scott should have contact with Aaron every second weekend from Saturday morning to
20 At [68].
21 At [69].
22 At [69].
Sunday afternoon rather than from Friday until Monday each fortnight as was presently the case. After taking travel time into account this would result in Aaron spending just 24 hours in his father’s care every fortnight.
[48] Viewing the Judge’s decision as a whole, I do not consider there was inappropriate emphasis on incidents that were the subject of findings made by other Judges in earlier decisions. To the extent that the Judge referred to those findings I consider he did so for reasons that were directly relevant to the issues he was required to decide. It is also clear that the Judge was at pains to remind himself that he needed to reach his own decision and was not bound by findings made by other Judges. He also took care to determine whether Ms Carter had altered her approach since the incidents referred to in the earlier judgments.
[49]It follows that this ground of appeal cannot succeed.
Failure to take Aaron’s views into account
[50] Section 6 of the Act requires a child to have a reasonable opportunity to express his or her view on matters affecting the child. Recent authority in this Court is to the effect that even children of a young age should be given an opportunity to express a view on issues relating to their welfare.23
[51] Ms Adams did not discuss the issues raised by Mr Scott’s application directly with Aaron prior to the hearing in the Family Court. The Judge therefore relied on comments Aaron had made to Mr Irving seven months earlier about where he wished to live:24
[17] In this case, Aaron has also met with the s 133 report writer, Mr Irving. In his report of 24 July 2019, Mr Irving sets out the views of Aaron and the factors impacting on his welfare and best interests as required by the brief sent by the Court. Specifically, Aaron’s views about “how many sleeps’ he would like at his father’s house, and what he likes and dislikes about both homes, were set out at [58] to [66] of his s 133 report. I acknowledge that Mr Irving did not directly ask Aaron where he would want to live, and nor should he have asked such a question. For I suggest that the literature shows that it is rarely appropriate to ask such a direct question of children, and especially of young children. As Fitzgerald J stated, how the ultimate issue is framed to
23 GF v EF [2019] NZHC 3140 at [34].
24 [ ], above n 1.
children must be tailored to each individual child. I consider that Aaron has expressed his views to Mr Irving and that those views are that he would like one night only in the care of his father. I place no weight on those views given Aaron’s age, his immaturity, and the apparent inconsistencies in his comments to Mr Irving as to whether he did or did not want to see his father, and whether he did or did not enjoy his contact with his father.
(footnotes omitted)
[52] Mr Howell submits Aaron’s views as expressed to Mr Irving were out of date by the time of the hearing. He submits, relying on observations made by this Court in C v S, that the Judge ought to have ensured he had the benefit of Aaron’s up to date views about where he wished to live.25
[53] In the present case I can readily understand why Ms Adams did not speak to Aaron prior to the hearing in the Family Court. At just four years of age he has now been the focus of attention by a variety of professionals for virtually the whole of his life. He must be acutely aware of the ongoing conflict and hostility that has existed between his parents since shortly after he was born. In C v S the Court observed that care needs to be taken not to subject children to processes that may have an adverse effect on them.26
[54] I consider this issue is now largely academic because Ms Adams spoke to Aaron on 17 May 2020 and provided a report about her discussion with Aaron dated 18 May 2020. Failure to obtain the views of children at first instance may be cured if a subsequent opportunity is given to express their views prior to an appeal.27
[55] Ms Adams’ report indicates Aaron has settled in well at Mr Scott’s home. During the hearing counsel also confirmed Aaron’s contact with Ms Carter since he began living with Mr Scott has occurred without incident. Ms Adams says Aaron told her he liked having two homes. She also says she asked Aaron what he would ask for if he was given three wishes. He responded “Number one, to live at Mum’s house. Number two, to live at Dad’s house. Number three, I want to be a superhero and to be able to look through walls and spy on other super heroes”. Mr Howell suggested
25 C v S [2006] 3 NZLR 420 (HC) at [31](d).
26 At [31](c) and (f).
27 GF v EF, above n 21, at [35], citing Carpenter v Armstrong HC Tauranga CIV 2009-470-511, 31 July 2009.
this was an indication Aaron would prefer to live with Ms Carter but Ms Adams says this was not how she interpreted Aaron’s comments.
[56] To my mind one of the most important aspects of Ms Adams’ report relates to Aaron’s response to a question from Ms Adams about how he came to be living in Auckland. Aaron answered that question “I don’t know. I think it was Daddy’s turn for me”. This suggests Aaron has rationalised his recent change in living arrangements in a manner that reflects positively on both Mr Scott and Ms Carter. It indicates he believes both his parents want to share the responsibility of looking after him on a day to day basis.
[57] It is also significant that Ms Adams’ final question to Aaron was “Where do you like living best?” Aaron’s response was “Both places”. This suggests Aaron has been able to cope as well as can be expected with a significant change in his day to day care arrangements.
Conclusion
[58] As the Judge acknowledged, he was faced with a very difficult decision.28 The outcome was always going to be devastating for Ms Carter, who has never been criticised for the manner in which she physically cares for Aaron. Furthermore, the issue of where Aaron was to live in the future did not depend on which household could provide for him better in a material sense. Rather, it fell to be determined on the basis of which living arrangement posed the least risk to Aaron’s future relationship with his father. The Judge considered the answer lay in a change of living arrangements, and to date it appears he has been proved to be correct. As Aaron approaches the age at which he will begin school it is now for Mr Scott to ensure that changeover arrangements are implemented smoothly so that Aaron has the maximum amount of quality time possible with his mother.
28 [ ], above n 1, at [90].
Result
[59] None of the grounds advanced in support of the appeal has been sustained. The appeal is accordingly dismissed.
Costs
[60] Mr Scott is the successful party and would ordinarily be entitled to an award of costs on a category 2B basis together with disbursements as fixed by the Registrar. If the parties cannot reach agreement regarding costs they are to file concise memoranda and I will determine the issue of costs on the papers.
Lang J
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