CDA v DGP
[2019] NZHC 3277
•12 December 2019
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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV2019-404-0777
[2019] NZHC 3277
BETWEEN CDA
Appellant
AND
DGP
Respondent
Hearing: 5 November 2019 Counsel:
L Kearns for Appellant
B Snedden for Respondent
E Stenhouse-White, counsel for childJudgment:
12 December 2019
JUDGMENT OF WHATA J
This judgment was delivered by me on 12 December 2019 at 3.00 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date: ………………………….
Solicitors: Shieff Angland Solicitors, Auckland
Thomas and Co, New Lynn West
CDA v DGP [2019] NZHC 3277 [12 December 2019]
Introduction
[1] CDA is the mother of C and L. DGP is the father. DGP sought and obtained interim parenting orders which permitted him, after two supervised visits, to have unsupervised visits with C and L. CDA sought leave to appeal the decision to make those orders. Leave was declined. CDA seeks now to appeal both decisions to this Court. CDA claims, in short, that:
(a)the conclusions about physical and psychological abuse (or lack thereof) were inconsistent with the key findings of fact made by the Judge;
(b)the Judge failed to properly consider the views of the children; and
(c)the Judge did not afford primacy to the safety of the children as he was required to do by s 5(a) of the Care of the Children Act 2004.
[2] CDA accepts that ordinarily appeals against interim orders may only be made with leave of the Family Court. However, she claims that both decisions were, in effect, final decisions, so leave is not required.
[3]I must therefore decide:
(a)whether this Court has jurisdiction to hear an appeal against interim orders without leave having been granted by the Family Court;
(b)whether this Court has jurisdiction to hear an appeal against a decision to refuse leave to appeal;
and, if so;
(c)whether the Judge erred in making the interim orders.
Background
[4] CDA and DGP separated in late 2011. Their marriage was dissolved in 2014. They have two boys, C aged 9 and L aged 7. CDA has always been the children’s primary caregiver and, for some years, DGP had access to the children without the intervention of the Court. However, in July 2016, CDA and DGP agreed at a Family Dispute Resolution (FDR) to an overnight contact regime, involving C and L in the care of DGP on Saturdays from 9.00 am to 5.00 pm and on every other weekend from after school Friday to 5.00 pm Sunday. That remained the position until May 2018, when CDA ended the arrangement because of various matters that had been reported to her by the children. DGP then applied for parenting orders in August 2018.
The first “interim orders” decision
[5] The matter came before Judge Burns on 21 December 2018.1 I will return to the detail of his judgment below. The reserved decision was released on 18 January 2019. The Judge identified the main issue as:2
…whether it is safe for the children to re-establish unsupervised contact with their father.
[6] The Judge summarised CDA’s case as follows:
[5] The mother’s case in summary is as follows. That she has obtained information from both their sons which she considers to be credible, reliable and accurate. She accepts that she has not witnessed or observed any events in the father’s household herself but considers that the information she received is sufficient for her to act on. That over a period of time since 2011 she has become increasingly concerned about the welfare of the two boys in the father’s home. She considers the situation escalated, culminating in the incident in May which caused her to cease contact. She says that she was informed following return of the boys to her care as follows:
(a)The father hit C several times in the head and then another five to ten times;
(b)The father roughly pulled C’s arms and legs;
(c)The father’s partner called L a “piece of crap” and said, “you are so fucking lazy”;
1 DGP v CDA [2019] NZFC 293.
2 At [3].
(d)The father sent home L’s urine-soaked pyjamas and teddy bear home to mother;
(e)The father’s partner referred to mother as an “arse hole” and that she does not feed the children properly;
(f)That father and his partner would shout a lot at each other and use the word “fuck” and C cried himself to sleep.
[6]She relies on the pattern of behaviour that she says she observed and particularly what has been described as the sock incident, then broccoli incident, the constant issues relating to food, the issue relating to school camp, the incident relating to father’s partner putting toys in the bag, the issue relating to the Exocycle and the issue relating to Chinese burn and the softball bat. (These will be examined in more detail later in the judgment.) There was also concern about the misuse or inappropriate use of time out. Mother contends that there is some acknowledgement by father of some of the incidents but she does not accept his evidence in denial and prefers to accept the evidence given to her by the boys over that given by the father and her partner.
[7] The Judge identified the father’s case as follows:
[7] The father’s case in summary is as follows. That he adamantly denies that he at any stage hit C or L and says that he runs a no hitting household. He does acknowledge pulling C by the leg and arm to lift him but not so roughly as to cause harm. He points to evidence of his partner where she said she had never used the word “piece of crap”. She did acknowledge using the word “lazy” but did not say “you are so fucking lazy”. He says that did not send urine-covered pyjamas to mother but he did send the teddy bear so that it can be cleaned without being damaged. Father says that Ms G did not refer to mother as an “arse hole”. Father does acknowledge that he and Ms G agree that they use the word “fuck” during arguments but they say that this is only occasionally. They dispute that C cried himself to sleep. Father seeks unsupervised contact and seeks the interim order to be reviewed.
[8] Judge Burns noted that s 5(a) is a fact-based enquiry and therefore reviewed each of CDA’s allegations against the evidence:3
(a) Father hitting [C] several times in the head and then another 5-10 times
I put the allegation into context and accept that mother is not an objective source of information. The boys are likely to have said to her what they think that she wanted to hear. She was obviously concerned and is a professional. I have no outside objective source such as a social worker undertaking a child- focused interview or a DVD interview of the child to make some assessment myself of the reliability of the allegation. I accept Mr Snedden’s submissions that the holding of arms and legs as described by father is a more plausible explanation that could have been misinterpreted by a child particularly in the
3 At [12].
situation where father is a big man and the child would feel quite a strong sense of disempowerment. I accept father’s evidence that there was no intention to be cruel. I do regard it as more in the category of poor parenting than triggering s 5(a).
(b) Father roughly pulling [C]’s arms and legs
Again essentially I have only father’s evidence on which to rely on. The child has reported the matter second hand to mother and there is potential for misinterpretation. I consider it likely that the child would have embellished the story because he would have felt a strong sense of disempowerment. I detected from father’s evidence in the way that he dealt with time out and his parenting practice somewhat of a more punitive approach to parenting although he was adamant that there was no hitting household operated by him and his wife (which I accept).
(c) Father’s partner called [L] a piece of crap and said you are fucking lazy
The tone of his voice and the method of administering time out which seemed to involve quite a lot of time in excess of what is necessary could be seen by the child as being frightening using language such as calling [L] a piece of crap and [“] you are so fucking lazy”. I think he likely lost his temper and did use inappropriate language.
(d) Father sent home [L]’s urine soaked pyjamas and teddy bear home to mother
Both father and his wife have given an explanation for this. I do not think it was intended to be punitive and I accept their evidence on this issue. I do not consider this issue triggers s 5(a).
(e) Derogatory statements made about mother
I think it is quite likely there have been derogatory statements said about the respondent. I suspect that they were not intended to be heard by the children. It is clear to me that no relationship has been established between mother and father’s wife. The first time they met (apart from one occasion) was at Court. I think some steps should be taken to establish some contact and some mutual understanding between them. Both have a very important role in the children’s lives and it would be better to re-establish some trust.
(f) Arguments between father and his wife
I accept that they have had arguments and they acknowledge that themselves but I do not regard this as triggering s 5(a). Again, I think it falls into if the children are exposed to it within the category of not optimum parenting.
(g) Mental health depression
Father says that he is well. I have no evidence to the contrary. The applicant acknowledges that it was an issue in the past. He says that he is not on medication and has taken steps to deal with it in terms of his lifestyle changes. I accept his evidence.
(h) Forced food in the mouth
I do not consider this to be violence but could be regarded as poor parenting. When a child is asked to do something that he does not want to do it can lead to embellishment but nevertheless there may be techniques and strategies that father can learn which make this issue easier to deal with. This is something he could look into in the parenting course.
(i) Fussy eating
This is a parenting issue which can lead to frustration. The suggestion from Lawyer for Child for the parties to be referred to a nutritionist may be a useful option to be taken up.
(j) Putting the child out of the house
I accept that this incident could be misinterpreted by the child arising out of him feeling disempowered and embellished but I do not think it is a s 5(a) issue. Again it could be seen as an example of poor parenting.
(k) Chinese burn
The Court has received a photograph and it appears as though [C] did receive an injury. Father has given an explanation that it occurred in a playfight situation and the child has misinterpreted. Essentially, I have evidence of father in a specific way as opposed to hearsay evidence from the child. I think I have no other choice but to accept father’s evidence on this issue.
(l) Eating and then made to eat food the following day
I consider this is an issue of parenting rather than triggering s 5(a).
[9] Following this review, the Judge found that DGP had not been violent, either physically or psychologically, to the children but he had demonstrated poor parenting and a lack of skill which had, on occasions, frightened both boys, particularly the oldest one and that the youngest one had a developing concern for the way that his brother had been treated.4
[10] The Judge concluded that while s 5(a) is not triggered, he had to operate in the best interests and welfare of the boys and considered that the father still needed to upskill for a period of time. He considered that contact needed to be supervised by a family member initially while the father undertook a parenting course. He also said that while the father has denied violence, he did notice from giving his evidence that there was “a simmering underlying anger”.5 The Judge referred to his depression and noted that the father had difficulties dealing with his emotions and could do with an
4 At [13].
5 At [13].
individualised Stopping Violence programme, “not to deal with issues of overt anger and violence but to provide strategies in terms of coping abilities and dealing with negative emotions which arise, particularly when parenting the boys”.6
[11] The Judge was satisfied that the previous care arrangements should be reinstated and made an order of the Court “on an interim basis”. The Judge said:7
This is a case where I think there needs to be a period of time and then a review. I consider that the first two occasions need to be supervised by a member of the applicant’s family.
[12] He also made a condition on the “interim order” that the father was to undertake a parenting course with Triple P. He said that the purpose of a member of his family being present was more to provide reassurance to the children. He also requested that Ms Stenhouse-White facilitate an appropriate person and organise the first two contact occasions and, if any issues arose, leave was given to apply to bring the matter back on 24 hours’ notice. He made a further condition that there was to be no physical discipline in the father’s home.
Refusal to grant leave decision
[13] CDA then sought leave to appeal Judge Burns’ decision, while DGP sought a warrant to enforce the order and admonishment. The matter came again before Judge Burns on 8 March 2019 and he delivered his reserve decision on 28 March 2019.8
[14]The Judge recorded the position of the appellant as follows:9
[3] Mother does not accept the finding of the Court and believes that the father has been violent to both children but particularly the oldest and has sought leave to appeal the interim decision and for a stay. She seeks a stay of the order for unsupervised contact pending completion by father of the individual violence programme and the parenting programme. She accepts that on completion of those programmes and satisfactory reoccurrence of contact that the contact can move on to be unsupervised. Contact is currently at the home of parental grandparents. Father has cross-applied for a warrant and order for admonishment.
6 At [13].
7 At [14].
8 CDA v DGP [2019] NZFC 2202.
9 At [3].
[15] The decision refers to the report of Ms Stenhouse-White, dated 7 March 2019. Based on that report, and an interview with the child C, the Judge was satisfied that the views set out by Ms Stenhouse-White were accurate and encapsulated both boys’ views. The Judge noted, it was clear from the interview that C had anxiety issues and a recent incident had occurred at school which he was uncomfortable talking about. The Judge noted he had particular needs which had to be given careful consideration. The Judge then concluded:
[8] I decline to grant leave to appeal and stay the orders and also decline to admonish and issue a warrant for the following reasons:
(a)The supervised contact at parental grandparents’ home has continued in the interim pending delivery of this judgment. On the information given to me by the boys and confirmed by Ms Stenhouse-White, those visits have gone well;
(b)Father has continued or completed the programmes he undertook to complete;
(c)What the mother has sought to achieve by seeking to appeal and stay the orders have been achieved. The only question now is when contact moves from supervised to unsupervised. That has to occur at some stage. The point of any appeal has been rendered nugatory.
[16] The Judge added:
[9] Because of the heightened anxiety issues being experienced by C, I need to be satisfied that father has taken particular regard to those issues and upskilled to ensure that they are not repeated. I am also concerned that in the event of unsupervised contact, unless properly managed, there is a risk that further allegations will be raised by C. Therefore for father’s protection and to ensure that there is no ongoing litigation between the parents which impacts on the children, I consider that a period needs to go by where contact is supervised for a further period of time in order to ensure that there are no fresh allegations. Both boys have reported enjoying the contact that has occurred at their grandparents’ home. I therefore make the following orders and directions:
(a)The application for leave to appeal for a stay is dismissed;
(b)The application for admonishment and a warrant is dismissed;
(c)The contact to continue to occur at parental grandparents’ home as arranged is to continue;
(d)I direct father to complete a Stop Violence programme (individual) and parenting course and provide certificate of completion as soon as possible;
(e)As soon as father considers the position to be able to move on to unsupervised contact at his home he can apply to have the matter set down for a 30-minute submissions only hearing before me. I ask him to take into account both boys’ needs particularly C’s because there was a risk that further allegations will be raised if the contact becomes unsupervised which could embroil father in further applications before the Court. It is important for both boys’ sake that the boys are not further involved in proceedings, if at all possible. Therefore leave is given to request a hearing on three days’ notice before me.
Events since
[17] While not relevant to the appeals, to complete the picture, the contact between DGP and the children, supervised by his parents, has not been trouble-free. The boys have reported concerns, especially about the behaviour of their grandparents, to their mother and to Ms Stenhouse-White. DGP appears to share some of those concerns and sought a variation without notice of the interim orders to enable a different supervisor to be present. CDA will only allow contact to occur when an independent professional supervisor, Therativity, is present. The Court refused DGP’s application, preferring instead to have an on-notice hearing. The effect of all of this is that DGP has had no contact with the boys since about 14 September 2019.
Jurisdiction
[18]Section 143 of the Care of Children Act (COCA) states:
(1)This subsection applies to a decision of the Family Court or District Court, in proceedings under this Act (other than criminal proceedings), to—
(a) make or refuse to make an order (other than an interlocutory or interim order); or
(b) dismiss the proceedings; or
(c) otherwise finally determine the proceedings.
(2)A party to proceedings in which there is made a decision to which subsection (1) applies, or a child to whom those proceedings relate, may appeal to the High Court against the decision. However, if the proceedings are under section 46C or 46R, the party or child may appeal only with the leave of the High Court.
(3)A party to proceedings under this Act in the Family Court or District Court in which an interlocutory or interim order is made, or a child to
whom those proceedings relate, may, with the leave of the Family Court or District Court (as the case requires), appeal to the High Court against the order.
(3A) However, no appeal may be made to the High Court under subsection
(3)in relation to—
(a) any interlocutory or interim order made in the following kinds of proceedings:
(i)criminal proceedings; or
(ii)proceedings under section 46C; or
(iii)proceedings under section 46R; or
(b) a decision under—
(i)section 7 to appoint, or to direct the Registrar of the court to appoint, a lawyer to represent a child; or
(ii)section 130 to appoint, or to direct the Registrar of the court to appoint, a lawyer to assist the court; or
(iii)section 133 to obtain a written cultural report, medical report, psychiatric report, or psychological report; or
(c) a direction under section 7A(6) that the parties may, or may not, be represented at a settlement conference.
(4)The High Court Rules 2016 and sections 125 to 130 of the District Court Act 2016, with all necessary modifications, apply to an appeal under this section as if it were an appeal under section 124 of that Act.
(5)On the ex parte application of the appellant, the Family Court or District Court (as the case may be) may order that the appellant must not be required under section 126(1) of the District Court Act 2016 to give the Registrar of the High Court security for costs.
(6)Subsection (5) overrides subsection (4).
[19] On its face, s 143(3) states that an appeal against an interim order requires leave. Ms Kearns did not dispute this; but she submitted that where an interim decision effectively determines the substantive application, the parties may appeal that decision. In this case, she submits the findings about the absence of physical and psychological abuse are final in the sense that any future psychological report and any future decision will be based on these findings. In short, she says the outcome of the substantive application is a fait accompli. Ms Stenhouse-White agreed that any future psychological report will likely have regard to the factual findings about abuse. She
also noted, however, that it is now likely a different judge will hear the substantive application.
[20] Mr Snedden submits that the decision is plainly an interim decision and that any interim findings are not final. He cites the following observation by Ellis J in Malone to support his position:10
[55] Fourthly, the adverse factual findings with which Mrs Malone’s proposed appeal is concerned are not, it seems to me, binding on the Judge who conducts the August hearing, which potentially has a curative effect. And given the complaint that Mrs Malone has made to the Judicial Complaints Commissioner it seems to me unlikely that Judge Adams will preside. On the other hand, if those findings are reiterated or have some residual influence on any final orders made, they can be addressed in an appeal from those orders. That appears to me the appropriate course. As Fogarty J has recently said in BLH v MNL:
[25] There are obvious policy reasons for Parliament preventing satellite litigation; appeals to the High Court in the course of the Family Court resolving the issues in a set of proceedings. The goal of this litigation in the Family Court is for the Court to settle the shared parenting of this child because the parents themselves cannot agree. I think the restraints on appeals in each of the Domestic Violence Act 1995, Care of Children Act 2004, and Family Proceedings Act 1980 are intended to ensure that the whole process is completed in the Family Court before there is a right of appeal.
Assessment
[21] The plain meaning of s 143(3) is that leave must be granted by the Family Court (or District Court) to bring an appeal against an interim order to this Court. As Ellis J also said in Malone:11
[27] Section 143 of the Act governs appeals to the High Court from decisions made by the District Court or the Family Court in COCA proceedings. There is an appeal as of right in relation to most substantive decisions that are final in nature: s 143(1). The ambit of this provision tends to be strictly (narrowly) construed.
[28] Section 143(3) provides that interlocutory or interim orders may only be appealed with the leave of the Family (or District) Court. In T v E the Family Court explained the rationale for the leave requirement in the following way:
The policy reason behind this section is to prevent proceedings in the Family Court being unduly protracted. If there was an automatic right to appeal of interim decisions, then a person who had greater resources or wanted to use tactical procedures could appeal such decisions, and with the normal time
10 Malone v Auckland Family Court [2014] NZHC 1290 (citations omitted).
11 (Citations omitted)
frames that would pass before the appeal is to be dealt with, it could make any particular case unduly protracted. Parliament considers the better course of action is to have the case concluded and then when a final order is made that can be the subject of an appeal. The High Court can reverse the decision if satisfied that the appeal has merit. Also the Family Court is a specialist Court and deals with issues arising in this case on a daily basis.
[29] It is plain that, for the reasons articulated in the above passage, the Family Court is required by s 143(3) to play what has been described as a “gate-keeping“ role in relation to interlocutory appeals.
[22]Duffy J similarly noted in Gordon v Campbell:12
[13] … On a plain reading of s 143(3), it is making of an “interlocutory or interim order” by the Family Court that provides the foundation for an appeal under the subsection.
[23] I agree. Section 143(3) plainly confers on the Family Court (in this case) the gatekeeper role as it relates to appeals against interim orders. The proposition advanced by Ms Kearns that this Court may, in any event, hear an appeal against an interim order without leave would undermine that function and is untenable. I accept that there may be cases where the order is interlocutory or interim in name only, so that leave might not be required. That appeared to be the case in Gordon, where the application for leave to commence proceeding was interlocutory, but the decision refusing that leave was final.13 But the application here sought interim orders and the orders were interim only. Leave therefore was required from the Family Court to bring an appeal against the interim orders.
[24] Ms Kearns, nevertheless, maintains that an appeal can be brought against the decision to decline to grant leave. But that would simply achieve by side route what is otherwise impermissible. I was not taken to any statutory provision or authority which might permit such a course. I therefore reject it.
[25] In the result, there was no jurisdiction to commence the appeal against the interim orders of the Family Court without the leave of that Court. The appeal must therefore be declined on jurisdictional grounds.
12 Gordon v Campbell [2015] NZHC 1264, [2015] NZFLR 841.
13 At [14].
[26] I am fortified in this view given how matters in fact unfolded in this case. The application for leave gave CDA the opportunity to highlight her ongoing concerns about contact. The Court, while rejecting leave to appeal, responded to those concerns by effectively revoking the order enabling unsupervised contact. This not only rendered the appeal moot insofar as concerns the previous orders, it reflected the capacity of the Court to respond to CDA’s concerns and the needs of the children. Subsequent developments have also meant that there is new information that might be relevant to any final determination. In the unlikely event that the Court hearing the substantive application ignores this new information, and/or otherwise fails to undertake a fresh assessment of the merits of the substantive application, CDA will be able to appeal that final determination.
[27]I find therefore that I do not have jurisdiction to consider the present matter.
Merits of appeal
[28] Given, however, that I have had the benefit of argument on the merits, I propose to address them briefly. CDA’s primary complaint appears to be that the Judge gave inadequate weight to the concerns she raised and had inadequate regard to the views of the children. She contends that this was wrong given the paramountcy of the interests of the children.14 Ms Kearns also submits that the Judge’s conclusions do not logically follow from his findings, including about DGP’s underlying anger. She says that subsequent events have shown that supervised care arrangements with DGP’s grandparents were unsuitable. She relies on the latest reports of counsel for the child to support this submission.
[29] To elaborate, CDA claims that DGP has abused the children in numerous ways including:
(a)DGP forces the children to eat certain foods, including on one occasion holding C’s mouth closed.
(b)DGP often gets angry with the boys:
14 COCA, s 4.
(i) DGP shouts at them because their room is messy.
(ii)NRG threw all the boys’ toys in a rubbish bag.
(iii)DGP gave a Chinese burn to C.
(iv)DGP hit the boys with a softball bat when they were at the park.
(c)DGP constantly puts the boys in time out, and on one occasion C was placed outside for about three hours. DGP also makes the boys eat the previous night’s dinner for breakfast.
(d)NRG also said to the boys, “your school work is shit” and that “your mother is an arse hole and doesn’t feed you properly”.
[30] CDA also said in her affidavit in support of the application for stay that C became so anxious prior to the first supervised visit that he developed hives for the first time in his life. She noted that there have, however, been no difficulties with the boys’ contact with their father at Care for Kids at the last two occasions. She believed that this is because they know that their contact with him is being supervised and that his partner is not present. She repeated that she had no confidence in the grandparents’ ability to stand up to DGP to protect the boys. She was very concerned the boys would be harmed if unsupervised contact occurs.
Assessment
[31] I do not consider the Judge erred. DGP and his partner, NRG, provided detailed affidavit evidence supporting their more benign version of events. They deny many of the allegations. Their evidence is credible and provided a sound basis for the conclusions the Judge made about the risk presented they present to the children. In this regard, DGP’s and NRG’s evidence is noteworthy for its forthrightness. They do not obfuscate on matters which are potentially damaging to them – for example, they openly admit (among other things) they may have used foul language in front of the boys and regularly disciplined the boys with time out.
[32] I repeat aspects of DGP’s evidence here on what I consider to be the three most serious allegations because they illustrate that the Judge had a proper basis for his conclusions about DGP’s credibility and the risk he presented to the children, with which I agree.
The alleged forced feeding incident
[33] DGP did not accept that there was an occasion where he “forced” C to eat broccoli. He said:
19… I held his mouth open and placed the broccoli in his mouth.
20C generally eats what I serve to him. I have done a compromise where I would make a pasta bake with lots of vegetables in it. In this way I would hide the vegetables and C would still get the nutrition he needs.
21There have been times when C has not eaten anything, and I have on one or two occasions, served food up to him the next day. On these occasions I have told C that this will happen.
[34] He attaches a copy of a photograph he took the same day showing C eating broccoli.
[35] DGP responds at length to the allegation that he held C’s mouth shut. Given the significance placed on this issue by CDA, I repeat that evidence verbatim:
24 [C] and I were at the dining table. [C] was crying and upset. He was not eating his broccoli. I told [C] he needed to eat it. I then put the food in his mouth. I would have squeezed [C]’s mouth to open it and then placed the broccoli on his tongue. I did not hold his mouth shut in such a way that he had only one option but to swallow.
…
30There have been two occasions where I made [C] eat food from dinner the night before for breakfast. This is food which I have placed glad wrap over and kept it in the fridge overnight. I have then heated it up for breakfast. It might have been broccoli or halved cherry tomatoes with capsicum and (grated) cheese and carrots.
31There would probably be one incident a month when I would have to speak to [C] about eating. [C] is only at my house for one dinner meal per week, which is Friday night. A difficulty may arise where I have cooked pasta bake and I have provided normal food had [sic] during the week, this would often be if it had been a busy week. On those occasions [C] would not eat what I had given him. There is no reasoning with [C] on food which can be frustrating. For example, he
has been told if he eats two more things on his plate he can have dessert. However, [C] will not respond to that. In fact there have been occasions when [C] has simply refused to eat anything and watched
[L] eat dessert.
32There is no reason for [C] to be scared of me. [C] is with me usually from collection from school on Friday afternoon until 5pm Saturday. The dinner is just one thing in a whole range of things that we do together.
The Chinese burn incident
[36]He also responds to the allegation that he gave C a “Chinese burn”. He says:
I recall that I was play fighting with [C] and [L]. There was mention about school pranks. I then showed [C] gently what other kids did when I was at school. I remember [C] saying, “ow it hurts”. However, I did it gently. I am surprised that [CDA] has a photograph of what she says is a bruise from this incident. I have asked my lawyer to try and obtain a copy of the original digital photograph of this bruise.
The soft ball bat incident
[37] DGP also responds to the allegation that he hit the boys with a soft softball bat. He says:
52My recollection is that [C] was hitting [L] with the soft softball bat. I asked him to stop and he did not stop. I put him time out. This would have been in a corner of a field where we were playing.
53When [C] came out of time out he continued to hit me. Again I put
[C] in time out. I have no recollection of hitting my son with the soft softball bat. If I had done so it would have been a gentle tap.
[38] Overall therefore I see no basis to depart from the Judge’s assessment of the evidence or his assessment of risk. I note further that the assessment of the risk presented by DGP is one upon which I think it is appropriate, in this case, to defer to the Judge’s view as an experienced expert in these matters. Some of DGP’s parenting skills appeared open to legitimate criticism, but the extent to which this provides a proper basis for intervention by the Family Court in the form of the requirement for supervision, is something upon which due deference may be afforded to an experienced Family Court judge, at least on the evidence in this case. In short, in my view, this was not a case in which the supervisory jurisdiction of this Court is fully engaged.
[39] I also reject the suggestion that the Judge failed to have regard to the views of the children. He plainly placed weight on the reports of counsel for the children and on C’s anxiety in particular.
Recent developments
[40] Lastly, I acknowledge the latest of the reports from counsel for the child (dated September 2019) is not favourable to DGP’s grandparents and to the arrangements for supervision that followed the Judge’s refusal to grant a stay. The grandparents gave various undertakings and, in the event of any breach of terms or conditions, would advise DGP that the behaviour must immediately stop and arrange for the children to be returned early. They also said they would report any difficulties to the lawyer for the child. Referring to CDA’s objection to them as supervisors because of past behaviour, they said:
This is because at times DGP was physically disciplined as a boy. Our response is that “that was then and this is now”. We have changed. We would not be physically disciplining our grandchildren
[41] It transpired, however, that the grandparents behaved poorly at times; so much so that DGP objected to their ongoing role as supervisors. In this regard, the last report of counsel for the child concluded:
49The current interim parenting order was made with the background of [the grandparents] having signed undertakings on 20 February 2019 in which they undertook to inter alia:
(a)protect the children from conflict and physical disciplines;
(b)that contact was to be a positive and enjoyable experience for the children at all times;
(c)prioritise the children’s interests and welfare;
(d)contact lawyer for the child if any difficulties arise during contact and provide full details about what happened during contact.
50The undertakings appear to be in breach. I have not been contacted by the supervisor at any time in relation to issues arising with contact.
51The children’s views and attitude to contact have become increasingly negative over the course of these proceedings. L’s disposition and worries give rise to new concerns in respect of him.
52In my view a s 133 psychological report is essential to the disposition of the proceedings. The report should include an assessment of each parent’s ability to meet the children’s needs and each parent’s ability to support a positive relationship between the children and the other parent.
53In the interim, the current interim parenting order remains active but is not being complied with. Counsel have agreed to attend a round table meeting and a further report will be provided once this has taken place.
[42] But that report does not undermine the correctness of conclusions reached by the Judge on the information available to him at the time he made his decision. Indeed, the Judge had before him generally positive reports from the counsel for the child about supervision. The cogency of this report rather lies in the future supervision of the children. In this regard, Ms Kearns raised a concern that the assessment of risk made on an interim basis will be determinative of the final assessment of risk. Apparently, it is the practice of assessing psychologists to afford definitive weight to the interim findings. But the statutory duty of all judges in this context is plainly to assess risk based on the best information then available to them. Interim findings in that regard are only that, interim findings, and the cogency is only as good as the information upon which they were premised.
[43] Furthermore, the last report forms part of an ongoing process in fact triggered by the Court dealing with the supervision of the children. This, to my mind, highlights the iterative nature of the Family Court process, one that does not envisage that interim findings will have final binding effect.
Result
[44] There is no jurisdiction to entertain an appeal on an interim decision that is genuinely interim in nature without the leave of the Family Court judge. The orders by the Judge in this case were clearly interim in nature only. This matter is therefore dismissed.
Costs
[45] DGP should have his costs on a 2B basis plus his reasonable disbursements. Submissions on costs, however, may be filed if they cannot be agreed.
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