Denning v Roberts

[2024] NZHC 188

ANONYMISED JUDGMENT FOR PUBLICATION

NOTE: ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE

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ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF THE PARTIES AND THE CHILDREN.

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2023-409-515

[2024] NZHC 188

UNDER

the Care of Children Act 2004

IN THE MATTER

of an application for leave to appeal a Family Court judgment

BETWEEN

DENNING

Appellant

AND

ROBERTS

Respondent

Hearing:	9 February 2024
Appearances:	Denning (Appellant) in person, by audio Roberts (Respondent) in person
Judgment:	15 February 2024

JUDGMENT OF OSBORNE J

The names of the parties have been anonymised in the published judgment to Denning v Roberts

This judgment was delivered by me on 15 February 2024 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

DENNING v ROBERTS [2024] NZHC 188 [15 February 2024]

[1]    The appellant and the respondent were formerly married. In this judgment I refer to “appellant” although she is strictly speaking an applicant for leave to appeal until the point is reached that leave to appeal is granted. The parties have a five year old daughter (“Kate” in this judgment — not her real name). On 11 August 2023 the Family Court made a number of orders (“the judgment”1) in relation to Kate, principally that she have an operation removing her tonsils and adenoids (“the operation”).

[2]    The appellant opposed the making of the orders and now seeks leave to appeal the judgment. This Court directed that submissions be presented on both the leave application and on the substantive appeal at the one hearing, which has now occurred.

The judgment

[3]    Judge Hambleton identified that Kate’s father (the respondent here) had applied under s 46R of the Care of Children Act 2004 (the Act) for an order enabling Kate to have her tonsils and adenoids removed.

[4]The Judge referred to the evidence relating to Kate’s condition:

(a)The respondent’s affidavit evidence, identifying the impact of Kate’s enlarged tonsils upon her eating and sleeping, and causing her to snore, and the respondent’s attempts to resolve the matter out of court before making his application. The appellant had told the respondent she did not consent to surgery for Kate while a Court of Appeal decision was pending, and in particular did not consent to Kate receiving medical treatment “through the public system CDHB other [than for] accident and emergency”. A subsequent request that the appellant consent to surgery on a private basis was met with a similar response.

(b)A letter from an otolaryngologist, Melanie Souter, dated 2 May 2023 supporting the operation. Dr Souter’s report refers to an examination of Kate and her findings, including that Kate has very large grade 4

1      [Roberts] v [Denning] [2023] NZFC 8969.

tonsils meeting in the midline — Dr Souter expresses “no doubt that she has sleep disordered breathing and likely obstructive sleep apnoea. Her recommendation was for an adenotonsillectomy.

(c)A second otolaryngologist’s opinion (of Justine Bradley), dated 29 June 2023, was obtained after the appellant wanted a second opinion. Dr Bradley examined Kate. She found that Kate was breathing quite well through her nose which was clear anteriorly but that her tonsils were grade 4 and very prominent. She agreed with Dr Souter that Kate would benefit from an adenotonsillectomy.

[5]    The Judge also referred to the report received from Mr G P Tyrrell, as lawyer for the child. Mr Tyrrell reported having met Kate and found she had an age- appropriate understanding that there is an issue with her tonsils. Mr Tyrrell submitted that surgery is primarily an adult decision based on the best possible medical advice and that, given the clear medical advice, it is entirely appropriate that the operation occurs. Mr Tyrrell supported the application including the consequential orders.

[6]    The Judge noted that the respondent elected not to file submissions for the hearing, having indicated to the Judge that there was nothing he could say in addition to the medical evidence that had been provided.

[7]    The appellant had filed written submissions, the Judge noting the following points of those submissions:

(a)the appellant believed she had been obstructed by not being able to produce medical evidence;

(b)the medical evidence filed relies on the respondent’s allegations;

(c)the appellant referred to (two) online medical articles;

(d)the respondent had not produced records from a general practitioner to evidence that surgery for Kate is a last resort;

(e)the parties ought to have been cross-examined;

(f)the appellant referred to two case law authorities; and

(g)the matter is not urgent.

[8]The Judge then turned to her application of s 46R:

[14]   Section 46R provides the Court with jurisdiction to determine guardianship disputes. The Court has a discretion to make an order it thinks appropriate. Section 46R is subject to ss 4, 5 and 6 of the Care of Children Act 2004. Section 4 requires that [Kate’s] welfare and best interests are the paramount consideration. Section 5 sets out the principles that must be addressed when determining what is in her best interests and welfare. Section 6 requires her views must be taken into account.

[15]   I have already addressed the concern as to [the appellant] not being able to produce medical evidence and that the medical evidence relies on [the respondent’s] allegations. I cannot place any weight on the two online medical articles referred to, as the authors of those articles are not available for cross-examination, nor have they had any involvement in [Kate’s] case.

[16]   The concern that [the respondent] has not produced records from a general practitioner is not of significant concern to me. First of all, if there were a need to produce those records there was nothing stopping [the appellant]from doing so. Second of all, we have two specialist medical opinions which say that this treatment is required. I am not sure that it would assist in making this decision for either party to be cross-examined. It is clear that they have a disagreement but there is independent medical evidence provided which supports the need for treatment.

[17]     The two case law authorities provided are not on point. One relates to costs arising from a police prosecution and the other relates to a recall of a judgment.

[18]    The observation that the matter is not urgent does not appear to me to be focussed on [Kate’s] needs. It is clear from the evidence provided from [the respondent] that this has been an issue for [Kate] for some time. It is causing health-related concerns for her. Those are detrimental to her welfare and wellbeing. A child-focussed approach would want this issue resolved for [Kate] as soon as possible. I am satisfied that the medical evidence supports the necessity for surgery and that both surgeons, as I said, recommended surgery after examination of [Kate].

[19]    It is plainly contrary to her welfare and best interests to leave this matter unattended when it is to her detriment and can be relatively easily addressed. The repeated focus on procedural steps in these proceedings is a theme of these proceedings where there seems to be a desire to bind children into a web of litigation, particularly applications of an interlocutory basis, rather than find and maintain a child-focussed approach. The initial and repeated reference to this matter awaiting resolution until decisions were released in the High

Courts is an illustrated example. It does not matter whose care this child is in and what may or may not happen with the substantive court orders. It is clear from the medical reports that this child is suffering due to a health issue for which she needs surgery. As the High Court has observed, and my deep sadness is that it seems to continue, [the appellant’s ]obsession with process has proven to be a distraction from the real issue which is the child’s wellbeing.

[9]The Judge then made the following orders and directions:

[20]I make the following orders and directions:

(a)      Pursuant to s 46R I make an order that [Kate] is to have her tonsils and adenoids removed.

(b)      [The respondent] is authorised to take any and all steps necessary to ensure the surgery occurs;

(c)      [The respondent] has sole authority and right to make any consequential guardianship decision, including, but not limited to, follow-up treatment, follow-up appointments and reviews, applying for philanthropic support and/or paying privately for the operation;

(d)      [The respondent] is to advise [the appellant] 24 hours in advance of the surgery date that it is occurring and then to provide an update 24 hours’ post-surgery, and daily for seven days following surgery, as to [Kate’s] wellbeing and recovery;

(e)      [The respondent] should also update [the appellant] as to any follow-up treatment reviews and forward any medical notes to mother;

(f)      I observe that the obtaining of the second medical report was out of a concern from [the appellant] there was insufficient medical evidence, and I also note that [the appellant] wanted that report and would have engaged it herself. I therefore make a costs order against [the appellant] in the sum of $199 being the cost of the second opinion obtained and that sum is payable to [the respondent]; and

(g)      Otherwise, there shall be no other order for costs between the parties. [The respondent] is self-represented and has not incurred legal costs with respect to this matter, and there shall be no costs contribution order as between the parties towards the cost of Lawyer for Child in this part of these proceedings.

Grounds of appeal

[10]   The appellant asserts the Family Court decision was wrong in fact, law and process, and led to a miscarriage of justice.

[11]The appellant identified the following grounds of appeal:

(a)         The Respondent is not entitled to costs being self represented. In any event they did not make an application.

(b)        No LFC was appointed yet “G Tyrrell” filed memorandum, submissions and attended the hearing.

(c)         The Respondent did not file submissions or give them orally. When this has occurred the Court has directed a formal proof hearing and denied the Appellant rights to participate and speak. The Court did not apply the same consistency to the Respondent.

(d)        The Appellant requested cross examination and the Court did not direct this.

(e)         The Court ignored/disregarded the Appellant case law that was raised as precedent of principles that is not limited to one piece of legislation.

(f)          The Court ignored/disregarded the Appellant profession literature that was referred to as counter intuitive. The Court stated the writers were not in Court to be cross examined, yet the writers of the Respondent evidence were neither and the Court accepted and relied on it.

(g)        The Court in previous minutes and decisions predetermined the final outcome by its recorded statements.

(h)        The Court refused the Appellant obtaining a second opinion to adduce as evidence.

(i)          The Court ignored/disregarded the Respondent prior inconsistent statement and evidence that I raised.

(j)          The Court served document on Lawyer to Assist and Oranga Tamariki with no evidence of their appointment/party and their briefs.

(k)        The Court did not hear the Appellant cross application.

[12]   The appellant seeks the quashing of the Family Court orders as they relate to surgery and the quashing of the Family Court decision on “costs”.

Approach on appeal

Leave to appeal

[13]   The application to the Family Court for resolution of a guardianship dispute relating to Kate was made under s 46R of the Act. As such, pursuant to s 143(2) of the Act, a party to the proceeding may appeal only with the leave of this Court.

[14]I adopt the principles identified by Toogood J in SFB v JEBH:2

(a)In allowing appeals of decisions under s 46R of the Act to proceed only with the leave of the Court, Parliament must have intended that some, but not all, decisions under the section that resolve disputes between guardians should be subject to appellate review. By imposing the leave requirement, Parliament understood that there was a need for finality and that not all challenges would warrant granting leave.

(b)However, because there is no further right of appeal against a decision under s 46R decision, beyond an appeal in this Court, the Court will generally be more willing to grant leave.

(c)Where the decision reached by the Family Court has long term implications for the welfare of a child, leave will be more readily granted.

(d)A decision whether to grant leave must be based on the first and paramount consideration of the welfare and best interests of the child. In general, bearing that consideration in mind, the Court will need to be satisfied that the issue is sufficiently important to be subject to an appeal notwithstanding: (i) the nature of the decision; (ii) the need for stability to be brought to the life of the child and (iii) the inevitable cost and delay inherent in appellate review.

(e)Leave will more readily be granted where there is a discernible serious issue to be determined. Accordingly, disputes that involve “important matters affecting the child” are more likely to justify granting leave. Where and how the child is to be educated is one such matter.

(f)If the party seeking leave identifies a seriously arguable material error of law or fact, then it is likely that leave will be granted.

(Citations omitted)

Approach on a substantive appeal

[15]   The approach to be taken on an appeal under s 143 of the Act was appropriately summarised by Jagose J in ARG v BKL,3 where his Honour explained:

[5]    The Act’s s 143 entitles any party to proceedings under the Act in the Family Court (or child to whom the proceeding relates) to appeal to this Court against the Family Court's final determination of the proceeding.

[6]     The appeal is a general appeal, in which ARG bears the onus of satisfying me I should differ from the Family Court’s decision. I am only justified in interfering with that decision if I consider the decision is wrong — in other words, the Judge erred.

2      SFB v JEBH [2015] NZHC 2897 at [8].

3      ARG v BKL [2019] NZHC 1514.

[7]   I then am to come to my own assessment of the merits of the case afresh, without deference to the Family Court (save for some caution in differing on witness credibility, when I have not had the advantage of observing the witnesses). I may rely on the Family Court’s reasons in reaching my own conclusions, but the weight I give those reasons is a matter for me.

[8]   Sections 4 to 6 of the Act relevantly provide:

4     Child’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.

…

(Citations omitted)

Particular considerations in relation to a child

[16]   In proceedings involving the guardianship of a child, the welfare and best interests of the child in their circumstances must be the first and paramount consideration.4

[17]   Any person considering the welfare and best interests of the child in their particular circumstances must take into account:

4      Care of Children Act 2004, s 4(1)(b).

(a)the principle that decisions affecting the child should be made and implemented within a timeframe that is appropriate to the child’s sense of time; and

(b)the principles in s 5 of the Act.

[18]   In proceedings involving the guardianship of a child, the child must be given reasonable opportunities to express views on matters affecting the child and any views that the child expresses must be taken into account.5

The “costs” decision

[19]The Judge ordered the appellant to pay the respondent “costs” in the sum of

$199 representing the cost of the second opinion obtained at his cost by the respondent. By its nature that was, strictly speaking, a disbursement order rather than an order relating to any (legal) costs incurred by a party.

[20]   The appellant invokes the principle that a respondent who is self-represented is not entitled to costs.

[21]   The appellant misunderstands the principle. A lay litigant is entitled to reasonable disbursements in the discretion of the court.6 The respondent had for the time being met personally the costs of both medical professionals. Given that he was absorbing costs in relation to the first opinion and that the second opinion was obtained because the appellant wanted there to be a record, the Judge’s exercise of discretion in ordering the appellant to pay the disbursement for the second opinion was plainly a reasonable exercise of the Judge’s discretion. There is no reasonably arguable error in that regard.

[22]   When I explained to the appellant the distinction that arises in the “costs” context between costs strictly so called and disbursements, she responded that the rule against awarding costs to lay litigants must still be applied as the Family Court elected

5      Section 6.

6      McGechan on Procedure HRPt 14.10(2), citing Re Collier (a bankrupt) [1996] 2 NZLR 438 (CA) at 441–442. See also Mac Motors Ltd v Butch Petfoods Ltd [2019] NZCA 148.

to issue its order as a “Costs Order”. Contrary to that submission, the correct outcome here turns on the substance and true nature of the order, not upon particular wording used.

[23]Leave to appeal in relation to the disbursement order will be refused.

Substantive grounds of appeal

[24]   The appellant did not expressly identify as a ground of appeal that the Family Court erred in finding that it would be plainly contrary to the welfare and best interests of Kate for the proposed operation to not proceed. Nor did the appellant in her written submissions filed for this hearing expressly identify such an error.

[25]   That said, the appellant’s expressed grounds focused on matters of evidence and of procedure. As those matters, if established, could affect the validity of the judgment, I will consider the substance of the decision once I have reviewed the evidential and procedural grounds identified by the appellant.

Procedural grounds of appeal

Submissions presented by lawyer for child

[26]   The appellant says the Family Court erred in receiving a memorandum and submissions from Mr Tyrrell when he had not been appointed lawyer for child.

[27]   There is no specific procedure laid down in s 7 of the Act for the appointment of a lawyer to “represent the child in proceedings”. It is clear from the Family Court file that the Family Court recognised Mr Tyrrell as lawyer for the child on applications of one party or the other through 2022 and 2023. The Court’s Minutes record Mr Tyrrell as having that status. It is clear that in relation to the operation application the Court treated Mr Tyrrell as having that status. It would have been a departure from appropriate practice, given the nature of the issue, not to have lawyer for child involved. Had an issue been raised as to Mr Tyrrell’s “non-appointment” the Court inevitably would have confirmed he was so appointed.

[28]   The Family Court did not err in treating Mr Tyrrell as lawyer for the child and hearing from him.

[29]   Even had there been a procedural error (which I do not find), it would become relevant only if it caused the Court to err in its substantive assessment. For the reasons contained elsewhere in this judgment, I find no such error.

Service of documents on lawyer assisting the Court and Oranga Tamariki

[30]   The appellant says the Court disregarded the rule of law by serving documents on lawyer to assist the Court and on Oranga Tamariki “with no evidence of their appointment/party and their briefs”. She has not particularised what documents were served on the identified person/organisation.

[31]   As it is, no lawyer assisting the Court nor Oranga Tamariki sought to be heard at the August 2023 hearing. Any incorrect service of documents (and it is not established that there was any) cannot have had any impact whatsoever on the conduct of the August 2023 hearing or the matters then determined. The Judge dealt with the application based on the evidence and the submissions received from the parties and Mr Tyrrell.

Failure to proceed as a formal proof

[32]   The appellant says the Family Court ought to have directed a formal proof hearing as the respondent did not file written submissions or make oral submissions.

[33]   Contrary to the appellant’s position, it would have been inappropriate for the Court to deal with the guardianship dispute over Kate’s operation on a formal proof basis. It was the respondent who had applied for resolution of that dispute. Whether or not he presented submissions before or at the August 2023 hearing was a matter for him. The hearing of the application correctly took place on an opposed basis.

Refusal of cross-examination

[34]   The appellant refers to her request to be permitted to cross-examine (implicitly the respondent) and the Court did not direct cross-examination.

[35]   Some background is required from the Family Court file to deal with this ground.

[36]   Initially, when the appellant had not filed a notice of response, the Family Court directed the respondent’s application to proceed by way of formal proof. When the appellant filed a notice of response on 13 June 2023 the matter came to be reviewed in court on 26 June 2023. Judge Hambleton heard from the parties and changed the direction to one for a submissions-only hearing, recording:

[3] Then I turn to the first urgent application which is for a s 46 order authorising that [Kate] has a tonsillectomy. I can see reviewing the documents filed for today that [the appellant] filed an affidavit which addresses other things her evidence in support of her notice of response that is accepted for filing. The hearing that has now been allocated will be move from being a formal proof hearing to a submissions-only hearing and any submissions must be filed no later than five working days before the date of hearing. [The appellant] objects to there being sufficient medical evidence before the Court in support of the surgery being medically necessary. I have referred to the medical evidence filed today. The certificate provided by [the respondent] does include information given by [the respondent] to the clinician and that is a concern [the appellant] has, but [the appellant] seems to be of the view that the decision for the treatment has been made only on the basis of what [the respondent] told the clinician.

[ 4]      I read that medical certificate as providing the doctor’s clinical assessment of [Kate] as a patient and necessity.

[5]        A way forward to resolve this, and I am grateful to [the respondent] for agreeing with this way forward, is that he will obtain a second opinion and file an affidavit attaching that. That is to be filed within 21 days.

[6]        The submissions-only hearing will proceed on the date allocated which is 11 August 2023.

[37]   Accordingly, the hearing of the application was to proceed as a submissions- only hearing. That direction was implicitly made under r 416ZG Family Court Rules 2002.

[38]Rule 416ZG provides:

416ZG Submissions-only hearings

(1)A Judge may direct that a hearing be a submissions-only hearing if he or she is satisfied that some or all of the issues in dispute can be determined by a hearing conducted in accordance with subclause (2).

(2)At a submissions-only hearing,—

(a)the matters must be decided on the basis only of submissions (written or oral) by the parties, any lawyer for the child, and any lawyer appointed to assist the court; and

(b)no witnesses may be called; and

(c)no cross-examination of the parties may be conducted (and therefore nothing in rule 169 applies).

(3)If, at the end of a submissions-only hearing, all the matters in dispute have not been determined, the Judge may do any of the relevant things referred to in rule 175D(2) and may also do anything referred to in rule 416Z(2).

[39]   The direction for a submissions-only hearing was clearly an appropriate course having regard to the fact that the appellant was not intending herself to file any competing evidence. Accordingly, once the determination was made that there be a submissions-only hearing, it followed there could be no cross-examination. It was an appropriate procedural decision.

Evidential grounds of appeal

The Court’s “disregard of case law”

[40]The appellant informed me the cases in question were Prescott v Police7 and

AJD v SED.8

[41]In the judgment, the Judge referred to the appellant’s reference to these cases:

[12] … she relies on two case law authorities although neither are related to guardianship disputes…

[42]The Judge then continued:

[17] The two case law authorities provided are not on point. One relates to costs arising from a police prosecution and the other relates to a recall of judgment.

[43]   The appellant says the Judge erred in disregarding the case law because it was raised as “precedent of principles that [are] not limited to one piece of legislation”.

7      Prescott v Police [2022] NZCA 16.

8      AJD v SED [2014] NZHC 18.

[44]   The issue before the Family Court — whether it was in the welfare and best interests of Kate to have the operation — could not have been informed by any principles identified in the two cases the appellant referred to, for the reasons the Judge articulated. The Judge did not err in that assessment.

The Court’s disregard of medical articles

[45]   The appellant referred the Court to two articles dealing with medical matters she had obtained online. In relation to that, the Judge recorded:

[15] … I cannot place any weight on the two online medical articles referred to, as the authors of those articles are not available for cross-examination, nor have they had any involvement in [Kate’s] case.

[46]   The appellant has provided me with copies of the two articles referred to. They are general education articles dealing with tonsillectomy and adenoidectomy including as to common indications for the operations and risks involved in the operations. Neither was a substitute for the reports referring to the clinical examination and conclusions completed by the otolaryngologists Melanie Souter and Justine Bradley. Their reports were before the Court. General medical articles of the nature produced by the appellant did nothing to undermine the reliability of the two experts’ conclusions either as to the recommendation that an operation take place or the appropriateness of then listing Kate for the operation.

Lack of consistency of treatment of evidence

[47]   The appellant submitted the Judge’s refusal to allow her to cross-examine was in breach of the requirement of r 13(1) of the Rules which provided that a practice that is not consistent with the Rules of a family law Act must not be followed in the Court. That, she says, is because the Judge placed weight on the respondent’s medical reports without cross-examination yet refused to place reliance on the appellant’s online articles in part because the authors were not cross-examined.

[48] For the reasons set out at [46] above, the Judge was entitled to rely on the medical reports in preference to seeking to reach conclusions in relation to Kate by reference to online articles. That applies regardless of whether cross-examination took place. In other words, the Judge’s reference to a lack of cross-examination on the

online articles, to the extent it ignored the consequences of having a submissions-only hearing, was immaterial to the correct outcome of the application.

Predetermination of outcome

[49]   The appellant says the Court “in previous Minutes and decisions predetermined the final outcome by its recorded statements”. In her submissions the appellant referred to one minute “dated 4 July 2023” in which the Judge recorded that: “I read that medical certificate [of Dr Souter] as providing the doctor’s clinical assessment of [Kate] as a patient and necessity”. (The Minute is in fact dated 26 June 2023).

[50]   At that point, as the earlier section of the Judge’s Minute indicates, the Judge was discussing the application in relation to Kate’s operation. The Judge recorded that the appellant asserted there was insufficient medical evidence before the Court in support of the operation being medically necessary. The Judge recorded that the appellant appeared to be of the view that the decision for treatment had been made only on the basis of what the respondent told the clinician. It was in response to that that the Judge made the observation in the Minute as to how her Honour read the medical certificate.

[51]   Nothing in the Minute reflects any sense of predetermination. The Judge was providing her reading of one piece of evidence — Dr Souter’s certificate — at the time. This was a prelude to the observation that immediately followed in the Minute, as to the fact the respondent had agreed to obtain a second opinion in any event.

[52]   Clearly, the Judge was not predetermining the outcome of the application at that point. The very purpose of the discussion was to have further evidence obtained to inform the ultimate hearing more fully.

Court’s “rejection of an opportunity for the appellant to obtain a second opinion”

[53]   The appellant recorded in her written submissions that the respondent had not given her contact with the children at all in 2023, “in contravention of an order under the Act”. She says the Court would have had to enforce her right of contact to allow

her to obtain a second opinion. She says the Court completely ignored that situation and “instead permitted the respondent to provide a second letter”.

[54]   One answer to this ground of appeal lies in the nature of the two medical reports received in relation to Kate, rather than in who commissioned those reports. The nub of the appellant’s concerns when the Judge was case managing the operation application towards a hearing was the appellant’s view that the initial report may have been based on the respondent’s reports to the clinicians rather than upon the clinicians’ clinical assessment. In fact, when the reports are fairly read it is clear that, notwithstanding the respondent’s provision of his understanding of the history to the clinicians, they each performed clinical assessments and gave their opinions based on those assessments. There were no grounds on which to question independent clinical assessments. The Judge did not err in relying on those assessments as the evidence before the Court.

[55]   The respondent was entitled (particularly having regard to the clinical assessments) to have the application brought on for prompt hearing without waiting for any separate contact issues before the Family Court to be resolved. As it is, it is apparent from a review of issues between the parties in relation to contact with Kate that there has not been a finding that the respondent was contravening the contact orders in place in 2023 — it appears the appellant was taking a stand in relation to the way in which the changeover of the child was operating. Nothing in the information provided on this appeal supports the appellant’s suggestion that she was herself unable to arrange a second opinion by reason of the respondent unlawfully keeping her out of contact with Kate. The Judge took the only practical course open to her by accepting the respondent’s offer to himself obtain a second opinion.

The otolaryngologist’s opinions “based on respondent’s allegations”

[56]   The appellant challenges the reliability of the conclusions reached by the two specialists on the basis that they were informed by the respondent’s subjective views, as reported to each specialist when he took Kate to see them. The appellant suggests conclusions drawn from such physical features as “large tonsils at the consult on the day” could have been indicative not of a need for surgery but related to a condition

such as a cold. The appellant referred to the absence of evidence that the specialists had access to the medical history that Kate’s GP would hold.

[57]   Despite these submissions, the best evidence before the Judge (and still) is that of the two specialists. Predictably and responsibly, they each refer to the history provided by Kate’s father (who is the primary carer of Kate and had been so through 2023). But in each case, and with their examinations at least six weeks apart, the otolaryngologist reaches a clear recommendation based on Kate’s physical presentation — consistently including tonsils of grade 4, identified as “meeting in the midline” and “very prominent”. Whether or not the appellant could have found a way to resume contact with Kate to enable her to arrange her own consultation, she could in any event have presented independent evidence from any other appropriate specialist to critique Dr Souter’s and Dr Bradley’s conclusions drawn from their stated examination findings — she did not do so. Similarly, and as the Judge observed, the appellant did not produce the GP’s records in relation to Kate, as she could have if they contained relevant material. It was not for the Family Court (or this) to speculate that the GP’s records may have contained some contra-indications.

The respondent’s “previous conflicting and inconsistent evidence”

[58]   The appellant says the respondent was estopped from making the operation application having filed (himself or through a lawyer) affidavits (25 January 2021 and 7 January 2022). At these times Kate had been in the care of the appellant. The appellant relies on statements made in the respondent’s evidence as to Kate not sleeping well or having trouble sleeping, and the cause being the appellant’s approach to Kate’s care.

[59]   The appellant’s submission misses the point that what is in the welfare and best interests of the child at any time may alter, or a new issue arise, or new information (such as fresh medical advice) emerge. Once the Court determined it was in Kate’s welfare and best interests to have the operation, it is beside the point to refer to positions taken by the parties previously in relation to other aspects of Kate’s welfare and interests. The welfare and best interests of the child in relation to the possibility of an operation, informed by the up-to-date information, had to prevail.

Standing back

[60]   Nothing in the numerous grounds raised by the appellant, either individually or collectively, cuts across the correctness of the Judgment. The evidence before the Court clearly established that an operation to remove Kate’s tonsils and adenoids was called for and should be scheduled.

Leave

[61]   Notwithstanding these conclusions but given that the appeal related to guardianship issues and in particular medical issues, leave is granted to bring the appeal in relation to all issues other than the costs issue.

Outcome

[62]I dismiss the appeal.

[63]   The stay of the Family Court Judgment ordered by this Court on 16 October 2023 is rescinded.

Costs

[64]   Normally an order that the appellant pay the costs and disbursements of this proceeding would follow. As it happens the respondent has represented himself and incurred no disbursements. Accordingly, there will be no order as to costs and disbursements.

Osborne J

Copy to:

Denning, Christchurch (Appellant in person) Roberts, Christchurch (Respondent in person)