Das v CRC HC Auckland CIV-2010-404-006523
[2010] NZHC 2408
•21 December 2010
NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO
11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION PLEASE SEE WWW2.JUSTICE.GOVT.NZ/FAMILY/LEGISLATION/RESTRICTIONS.
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2010-404-006523
BETWEEN DAS Appellant
ANDCRC Defendant
Appearances: L F Soljan for Appellant
C M Riddell and M A Blank for Respondent
G Wagner Lawyer for the Child
Judgment: 21 December 2010 11:30:00
JUDGMENT OF COURTNEY J
This judgment was delivered by Justice Courtney on 21 December 2010 at 11:30 am
pursuant to R 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date....................................
Solicitors: Jackson Russell, P O Box 3451, Auckland
(09) 309-9648
Wynyard Wood, P O Box 2217 Shortland Street, Auckland 1140
Fax: (09) 309-1044
Counsel: L Soljan, P O Box 196 Shortland Street, Auckland 1140
Fax: (09) 985-0744
Copy to: G Wagner, P O Box 47620, Ponsonby, Auckland 1144
Fax: (09) 361-1578
DAS V CRC HC AK CIV-2010-404-006523 21 December 2010
[1] This appeal against an interim parenting order concerns a seven-year-old girl, D. The appellant, Ms S, is D’s mother. She is appealing against an order of the Family Court removing D from her day-to-day care and placing her with the respondent, Mr C, who is D’s father.
[2] D had been in the day-to-day care of Ms S from her birth and had regular contact with Mr C. She spent weekends with Mr C and her paternal grandparents, with whom Mr C lives. In recent years D has displayed violent tantrums and earlier this year behaviour observed by her babysitter led to CYPS investigating possible sexual abuse. Mr C’s contact was voluntarily suspended in April pending the outcome of the investigation. In July CYFS indicated that it supported resumption of contact. Mr C applied to the Family Court for an order that contact be resumed. In late August the parties received a report from the psychologist appointed by the Court, Ms Bailey. The report did not express any concern about D’s safety with Mr C but did raise serious issues regarding D’s emotional well-being which were attributed to factors associated with Ms S, particularly her admission of ongoing drug use.
[3] At a conference on 30 August 2010 Mr C asserted that, as a result of Ms Bailey’s report, the existing care arrangements should be changed immediately so that D was placed in his day-to-day care. Judge de Jong directed an urgent hearing on two day’s notice. On 1 September 2010 Judge Clarkson heard submissions from all parties and made an interim order that D be immediately placed in the day-to-day care of Mr C. The Judge also ordered that D’s contact with Ms S be supervised.
[4] In her appeal Ms S asserts that:
(a) The two working days notice of the hearing was inadequate;
(b)The Judge failed to observe the principles of natural justice by determining the matter without allowing the appellant the opportunity
to test Ms Bailey’s evidence or give evidence that might have either refuted or, at least, put in context, some of the adverse inferences drawn by her;
(c) The Judge failed to undertake the required safety assessment under s
60 Care of Children Act 2004 (CoCA);
(d)The Judge failed to make a proper assessment of D’s welfare and best interests under s 5 by focusing only on s 5(e) (safety) and not considering s 5(b) (continuity of care arrangements).
[5] A general appeal such as this is to be determined in accordance with the approach set out in Austin Nichols & Co Inc v Stichting Lodestar.1 It is for the appellant to persuade this Court that the Judge was wrong in her decision and, if so, it is for this Court to consider the matter afresh and reach its own conclusions on the merits.
[6] There was no argument between counsel as to the principles that ought to govern changes to care arrangements in the context of an interim situation (and appeals from interim orders). In Fletcher v McMillan Hammond J said:2
The only applicable principle of law is that the best interests of the child are paramount. That said, an interim custody order raises its own kind of difficulties…In the vast majority of cases it is preferable to advance the merit hearing timeously with the parties being encouraged to co-operate or at least live with an informal arrangement pending the merit hearing should such be required…The Court’s function on an interlocutory application is a limited one. It is to decide what is to be done pending a full investigation and hearing. Unsurprisingly, in this context, appellate courts have seen the preservation of the status quo as being of real significance. Assuming that there has been a state of affairs with respect to the child which can properly be described as a status quo, or something like it, such should not be disturbed unless the welfare of that child, using that term in its largest sense as covering physical, mental or moral matters, is distinctly put at risk. And some appellate authorities indicate that such intercession should only be undertaken on convincing proof.
(emphasis added)
1 [2008] 2 NZLR 141
2 AP136/95, 11 March 1996
[36] Interim custody orders are most usually made where there is a state of sudden volatility...
[37] At short notice then, and often on slight facts, the Court may be asked to intervene; and all then that the Court can do by interim order, until the parents reach their own accord, or the Court is able to make a complete and considered review of what the child’s welfare requires, is to give the child a measure of stability. That usually means confiding the child to the child’s most familiar and reliable caregiver, and then provisionally…
[41] The Court’s discretion is wide…but interim orders, like final orders, can and ought only to be made when that is called for to safeguard or promote the welfare of the child…
[45] The ultimate question, whenever the Court is asked to intervene by interim order, is whether there is a distinct need to be answered, to safeguard and preferably promote the child’s wellbeing, which simply cannot be postponed…
Procedural unfairness – breach of natural justice
[8] The principles of natural justice, affirmed in New Zealand by s 27 New Zealand Bill of Rights Act 1990, require that a person affected by a decision-making process be given reasonable notice of the case against him or her, and a reasonable opportunity to be heard. The purpose of such rights is to enable a person to respond to allegations being made against him or her. Of course, if the substance of the allegation is already known there will be no unfairness. Even if the allegation does take the person by surprise there is still no unfairness in process if he or she could not have responded to the allegation in any event. Further, as Ms Soljan, for Ms S, accepted, in the circumstances of this case where the safety of a child is in issue the interests of the child take precedence.
[9] Ms Soljan accepted that the issues raised in the psychologist’s report warranted an urgent response from the Family Court. Her complaint was that the time allowed was just too short. In particular, the hearing proceeded on only two days notice and was very limited. The psychologist’s report was only released on the working day immediately before the conference and there was no indication before
the conference that D’s day-to-day care would be in issue. In addition to the lack of
3 HC Auckland CIV-2003-404-000653, 21 May 2004
notice, there was no allowance made for the parties to respond (for example by way of a critique) to the psychologist’s report. The evidence itself was untested and the Court declined to accept evidence from the respondent’s sister and brother-in-law regarding the respondent’s (and his parent’s) care of D. This last complaint was not pursued in oral argument and Ms Wagner, lawyer for the child, pointed out that the evidence was in the form of a letter, not an affidavit, and did not address the central issue at the hearing which was the appellant’s continuing drug use.
[10] In considering the amount of notice given to the parties and, indeed, the amount of time allocated for the hearing I take into account the reality of available time in the Family Court. The hearing was allocated by Judge de Jong at a conference on 30 August 2010. Ms Wagner advised me (without challenge) that Judge de Jong had been advised by court staff at that conference that there was, in fact, no time available at all in the Family Court for the rest of this year. The date and time allocated by Judge de Jong was allocated in the expectation that he would hear it on a day that had been allocated to him to complete reserved judgments.
[11] Whilst two working days notice is very short for some of the important issues that needed to be addressed, it was not impossibly short and was certainly the best that could be done given the time constraints in the Family Court at that stage. I therefore do not accept any procedural unfairness in relation to the amount of notice given.
[12] The second complaint of procedural unfairness was that the appellant was not given the opportunity to address important aspects of Ms Bailey’s report which had clearly influenced her in reaching conclusions adverse to the appellant. The first of these was her conclusion about Ms S’s engagement in the investigation into the possibility of sexual abuse. Ms Bailey said that:
Mother showed an inability to cope with the possibility that [D] could have been sexually abused. Mother needed to transfer the responsibility of assessment and coping to others. She attributes this to her own historical abuse. Whilst this may be correct it would still leave [D] isolated and unsupported if there was any possibility of her being sexually abused.
[13] Ms Soljan said that the appellant had been specifically requested by CYFS
not to interfere in the investigation. This fact is recorded in a social worker’s report
23 November 2010 which, obviously, was unavailable to the Judge at the September hearing but made available to me at the appeal hearing. Ms Soljan submitted that, had Ms S been given the opportunity to explain what had been requested of her in relation to the investigation, it might have put her attitude to it into context and avoided the inference that she was unable to cope with it. This was, however, a straightforward piece of factual information that could easily have been put before the Judge in the form of an affidavit within the time available. So I do not see that the short notice or way the hearing was conducted prejudiced the appellant in this regard.
[14] Ms Soljan also submitted that the appellant should have been able to adduce evidence as to D’s progress at school. This, she submitted, would have shown that D enjoyed a good level of care from her mother and was settled and performing well at school. However, it seems clear that there was evidence already on the Court file about D’s schooling. In an affidavit sworn 18 February 2010 Ms S referred to D as making steady progress at school. She annexed to that affidavit D’s 2009 school report which was positive. In addition, Ms Bailey specifically referred to D’s school situation, recording that her work was a good average, that D seemed happy, followed rules, was not argumentative and rarely in trouble. Ms Soljan did not suggest that the Ms S would have been in a position to give evidence that went significantly beyond this information, if at all. As a result, I do not accept that this is a legitimate ground of complaint.
[15] Ms Soljan next argued that Ms S should have been given an opportunity to test the psychologist’s evidence. There were two particular aspects of the evidence that she submitted warranted careful attention. The first was the psychologist’s evidence that D did not trust her mother:
If D was to remain in the primary care of her mother, she is living with a parent in whom she does not have implicit trust and who she does not wish to meet her basic dependency needs…
[16] Ms Bailey’s conclusion on this point was accepted and relied on by the Judge who referred specifically to the lack of trust that D apparently had in her mother.
Ms Soljan was critical of Ms Bailey’s conclusion, saying that Ms Bailey had not identified the basis for her conclusion nor the nature of the psychological assessment undertaken to reach it. In her written submissions she suggested that it would have been appropriate to have allowed Ms S time to obtain a critique of the report.
[17] However, it is clear from the report that Ms Bailey’s conclusions were drawn
from what D had said in her interview:
If she had a problem and had to thrust [sic] someone in the family to help her she would trust granddad, nana, aunty, uncle and Dad. When I asked about Mum she was very hesitant and replied “Um sometimes. Yes when she’s not angry but no when she is angry I wouldn’t”. What makes Mum angry is her talking to Dad on the phone or if she’s naughty. She thought Mum got angry lots…
[18] I accept that the psychologist’s report on this point is one that Ms S might justifiably wish to explore further and will be able to do so at a later hearing. But in the context of an urgent interim hearing, (and mindful of the time constraints that I have referred to) there was simply insufficient time for that. The report contained sufficient information for the Judge to accept that Ms Bailey had a reasonable basis for her opinion. The Judge did not err in accepting that opinion without allowing further time for Ms S to obtain a formal response.
[19] Ms Soljan also submitted that the psychologist’s report was, on the face of it, incomplete in relation to the safety assessment and that was an area that should have been able to be explored further. This is certainly a reasonable point. At the outset of her report Ms Bailey recorded that one of the assessments she was to undertake was the likely risk factors in the care of either parent. However, when she reached the point in her report of actually considering the risk factors in the care of either parent she referred only to Ms S. There was no reference whatsoever to any issues connected with Mr C, even though there were current allegations before the Court of physical and sexual abuse. This matter is, however, one which is better considered in relation to the next ground of appeal, the Judge’s failure to undertake a s 60 assessment.
[20] I conclude that, apart from the issue of the s 60 safety assessment, there was no unfairness in the way this hearing proceeded.
Safety assessment under ss 59-61
[21] Where there have been allegations of violence (including sexual abuse) against a child ss 59-61 require the Court to, first, determine whether the alleged violence occurred and, if so, make a predictive assessment under as to whether, notwithstanding the violence, the child would be safe with the violent party.
[22] In this case there were allegations of physical discipline by the respondent in the form of him hitting her with a jandal. Ms Bailey’s report also referred to a statement by D that Ms S sometimes hit her for no reason. The concerns about sexual abuse had arisen from statements made by D to her babysitter and behaviour observed by the babysitter. Clearly, a s 60 assessment should have been undertaken. Ms Soljan submitted that the Judge had failed to undertake the required assessment. Ms Wagner accepted that a s 60 assessment had not been undertaken, and during argument, Ms Riddell, for Mr C, also accepted that the assessment had not been undertaken.
[23] The Judge did not make mention of the allegations of hitting. She did refer to the allegations of sexual abuse without making any specific finding or considering the question of D’s safety:
[7] Not long after the social worker’s report was released, the mother reported sexual abuse allegations that related to behaviour that [D] had demonstrated to a babysitter and which implicated her father. Because of that [the respondent’s] contact with [D] was immediately ceased. He did that voluntarily. The matter has been subject to the evidential videos and the investigation was continued after consultation with the Child Youth & Family Services by Ms Bailey on behalf of the Court.
[8] Both the Child Youth & Family Services and Ms Bailey found nothing to substantiate any concerns around sexual abuse between [D] and her father and Child Youth & Family Services endorsed [D] immediately recommencing her relationship with her father. [The appellant] resisted that and indicated that she was not prepared to have father resume his contact even supervised, until Ms Bailey’s report was released. Ms Bailey’s report was released last Friday and raises much more serious concerns about the effect of mother’s drug use on this young child’s development.
[24] Mr C had admitted to Ms Bailey that he had smacked D with a jandal. There was, therefore sufficient material for the Judge to have made an affirmative finding
on that allegation. The sexual abuse allegations are more complicated. CYFS were notified of this allegation following statements made to and behaviour observed by D’s babysitter. D was interviewed at school, though the record of that interview was not fully in evidence before me. In May the Specialist Services Unit advised the social worker that it was a police matter and that the child protection process would be followed. An evidential video was requested. That was not completed, however, for reasons which are not fully explained though it appears to have been because D did not appear to understand why she was there and was adamant that, apart from seeing sex on her father’s computer, nothing else had happened. At that point the Special Services Unit, the social worker and Ms Wagner agreed that any further work in terms of interviewing D would be undertaken by Ms Bailey and incorporated into the report she was preparing for the Court. If concerns arose in the course of Ms Bailey’s investigations then CYFS would take further action.
[25] There was a meeting on 27 July 2010 between the social worker, her supervisor, Ms Soljan, Ms Blank (for the respondent) and Ms Wagner. Ms Wagner addressed me on this meeting, relaying to me a file note that she had made during the meeting. Ms Soljan did not object to her doing this. Ms Wagner said that, although there was no representation from the police or Special Services Unit, those entities had input into the meeting via the social workers and the message conveyed by the social workers was clearly in support of a resumption of contact between D and Mr C without any conditions. It is clear from [7] and [8] of the Judge’s decision that the Judge understood this to be the correct position.
[26] Ms Soljan, however, pointed to one part of the 23 November 2010 social worker’s report which the Judge did not, of course, have. This part of the report recorded a recommendation by the Special Services Unit that D resume contact with her father subject to such contact being supervised by a family member and no overnight visits. This, Ms Soljan submitted, was an important piece of information that would affect any s 60 assessment.
[27] I explored this issue in some detail with counsel; indeed, this was the reason that Ms Wagner obtained and relayed to me her file note of the meeting 27 July
2010. In Ms Wagner’s file note she recorded advice from a Special Services Unit
psychologist (conveyed by CYFS) that the limits on contact previously suggested by Special Services Unit should not have been made. There was no explanation as to why they were originally made, nor the reason for the view being expressed that they should not have been made. However, it seems clear that the Specialist Services Unit had changed its view and that, as at 30 August 2010, the position was that CYFS and Ms Bailey had both reached the view that there was no basis for concern about sexual abuse. That fact did not obviate the need for a s 60 assessment. However, it is clear that, even with the benefit of the 23 November report there would have been insufficient evidence to make an affirmative finding that sexual abuse had occurred and no reason to think that D would be unsafe with her father in this respect.
[28] In relation to the allegation that Ms S had hit D, the only evidence seemed to be the report of D’s statement to that effect. There was no response by Ms S to the allegation. On the information available the Judge could not have made a finding either way as to whether Ms S had hit D. However, even if the Judge was not satisfied on the evidence that Ms S had hit D she should, nevertheless, have considered whether D would be safe with Ms S.
[29] However, I am satisfied that, even if the s 60 assessment had been undertaken the outcome would have been the same. This is because Ms Bailey’s report contains sufficient information about D’s relationship with her father and grandparents to be satisfied of her safety with them on an interim basis. Conversely, the fact that Ms S had admitted to ongoing drug use would, in itself, have given cause for concern about D’s safety, even in an interim situation.
Best interests assessment under s 5
[30] In making an assessment as to what is in the best interests of a child the Judge is required to examine each of the s 5 principles to see if they are relevant and, if they are, take them into account along with other relevant matters.4 Ms Soljan submitted that the Judge had simply directed her attention to s 5(e) which deals with
the child’s safety and, as a result, overlooked the relevance and importance of s 5(b)
4 Kacem v Bashir [2010] NZSC 112
which relates to continuity of care. This aspect was highly relevant because D had been in her mother’s day-to-day care for her whole life. Further, Ms Soljan pointed out that even if there were safety issues attributable to Ms S’s drug use these were chronic rather than acute and the drastic step of reversing such longstanding care arrangements should not have been taken until a full hearing could have been arranged.
[31] Ms Soljan is right that this is not an acute case in the sense of upheaval within the family or some particular event. However, both parents had reported strong oppositional behaviour and tantrums by D. The behaviour observed by the babysitter was very troubling, not as evidence of sexual abuse, but as evidence of other emotional difficulties. In one sense it might be said that D is not in obvious immediate physical danger from her mother’s parenting style and drug use. On the other, however, it is evident from Ms Bailey’s report that, in Ms Bailey’s view, D is showing signs of emotional neglect and abuse as a consequence of the relationship with her mother:
Difficulties that [D] shows that are associated with a child who has been emotionally abused or neglected include her emotional stress at times, of being oppositional, anti-social. Sexualised behaviours are also sometimes associated with emotional abuse or neglect.
A protective factor for D will have been the very strong positive impact she has always received from father and her paternal grandparents. Her attachment with them all should be secure and positive. Her strong will and personality will also have helped as will her good reports from school.
D presents as a child who is able to function competently at school but has serious behaviour and social difficulties at home. Some therapeutic assistance is strongly indicated as being necessary to assist D deal with the issues that are troubling her.
Mother presents as having been emotionally unavailable and lacking in responsiveness to D. This is a trait that is associated with drug use. D presents as being emotionally ambivalent about her mother in whom she does not have implicit trust.
At this time there is no supportive information to collaborate [sic] or to
support the babysitter’s reports regarding D’s sexualised behaviour.
[32] Evidence of emotional neglect, coupled with Ms S’s ongoing drug use did, in my judgment, justify treating D’s situation creating a distinct risk to D’s safety with Ms S. The issue of Ms S’s drug use has been raised in the Family Court previously,
with clear warnings that if drug use continued, the care arrangements would be reviewed. These previous warnings have generally been connected to a safety assessment in the physical sense. However, the gist of Ms Bailey’s report is that the emotional consequences for D from Ms S’s drug use are now becoming apparent and are serious. In relation to D’s proposed care arrangements the psychologist considered that:
If [D] was to remain in the primary care of her mother, she is living with a parent in whom she does not have implicit trust and who she does not wish to meet her basic dependency needs. She is closely emotionally tied to here mother because of her historical primary care by mother.
[D] is unlikely to be able to develop her potential if she is not able to put her complete trust for her wellbeing in the parent who has her primary care. [D] needs to have no concerns about any issues except being a child who feels secure and able to have reliability and consistency. In my opinion mother is not able to meet these needs as not only does [D] have concerns about her mother’s care of her but mother is also admitting to continuing use of a Class A drug that she is dependent upon when her stress levels are high.
[33] There will, of course, need to be a final hearing at which these issues will be explored in detail. But that will not occur until some time in 2011. Given D’s emotional state I do not consider that her safety can be assured by being in the day- to-day care of her mother. The interim order regarding day-to-day care should remain.
[34] I take a different view regarding contact arrangements. D presently sees Ms S once a week for one hour in a supervised setting. In a recent interview with Ms Wagner, D expressed a desire to have more time with her mother and to see her mother at her mother’s place. I do not detect from Ms Bailey’s report concerns about D’s immediate physical safety with D and consider that unsupervised contact should be permitted and for longer periods. Contact for four hours twice a week would provide more continuity for D with her mother in a familiar environment.
Result
[35] The appeal is dismissed except to the extent that the order regarding contact is varied pending a hearing in respect of final orders. There will be unsupervised contact between D and Ms S for four hours twice a week. Parties are to confer as to
the days and times of contact. If parties require further directions they should return
to the Family Court.
P Courtney J
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