F v Police HC Nelson CRI-2007-442-24

[2008] NZHC 159

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI-2007-442-24

F

Applicant

v

NEW ZEALAND POLICE

Respondent

Hearing:         19 February 2008

Appearances: Mr F   in person

C P Stevenson for Respondent

Judgment:      20 February 2008 at 3.00 pm

In accordance with r540(4) I direct the Registrar to endorse this judgment with a delivery time of 3pm on the 20th day of February 2008.

JUDGMENT OF MACKENZIE J

[1]      This is an appeal against a condition of bail imposed in the District Court at Nelson when bail was granted to Mr F   on 4 December 2007.  Mr F   faced two charges of assaulting his 11-year old son.  He had elected trial by jury and was

remanded for a pre-depositions hearing.

F V NEW ZEALAND POLICE JUDGMENT HC NEL CRI-2007-442-24 20 February 2008

[2]      Certain conditions of bail were sought by the police, one of which was a condition that Mr F   not associate with or contact his son.   It is that condition which is the subject of this appeal.

[3]      The allegations against Mr F   relate to a period when the son was living with the appellant in Nelson.  The appellant apparently now faces additional charges to those which were before the Judge when bail was granted.  There are five charges of assault, two charges of leaving a child under the age of 14 without supervision, all relating to the appellant’s 11-year old son.  There is another charge of male assaults female relating to a former flatmate of the appellant.  Counsel for the Crown advises that the allegations relate to a period between May and November 2007 when the son was living with the appellant in Nelson.  It is alleged that the appellant assaulted the son with a stick, with a wooden spoon, and by punching, and that at times has left the boy on his own without adult supervision.

[4]      The boy is no longer living with Mr F  , but is currently living with his mother and her new partner.  The exact status of that care arrangement is not clear, but Mr F   advised me that there is no formal agreement, or Family Court order, for the arrangements.  CYFS is apparently involved in respect of the boy’s welfare, having been involved by the boy’s school as a consequence of his behaviour at school.

[5]      A condition to ensure that a defendant not interfere with a complainant is one of the categories of condition which is able to be imposed under s 31 of the Bail Act

2000.  The imposition of such a condition is common-place.  In this case, however, I consider that particular care is required before such a condition is imposed.   The effect of the condition would be to prevent all contact between father and son for the lengthy period, potentially of the order of one year, before trial.  Under s 4 of the Care of Children Act 2004, the welfare and best interests of the child must be the first and paramount consideration in any proceedings involving contact with a child. The welfare and best interests of the particular child in his or her particular circumstances   must   be   considered.      That   fundamental   principle   as   to   the paramountcy  of  the  welfare  and  best  interests  of  the  child  is  not  limited  to proceedings under that Act.  Underlying s 5 of that Act is a principle that children

should have a continuing relationship with both parents.   That principle is given effect by s 52 which provides that, in making a parenting order, the Court must consider provision for a parent, who does not have a role of providing day-to-day care, to have contact with the child.

[6]      I consider  that  regard  must  be  had  to  that  principle  when  considering  a condition of bail which would impact upon contact between parent and child.  There must be a weighing of these family law considerations against the concerns to which the imposition of a non-contact condition under s 31 of the Bail Act is directed.

[7]      The notes of the Judge’s decision indicate that no such balancing exercise was conducted in this case.  I must according approach that issue de novo.  There are two aspects, relevant to s 31, which require consideration.  The first is the protection of the integrity of the trial process, and the second is the possibility of further offending against the son while on bail.

[8]      On the material before me, I do not consider that the requirements of the trial process in relation to the charges against Mr  F    are sufficient to justify the cessation of contact between Mr F   and his son for the lengthy period which would be involved.  The paramountcy of the best interests of the child must be given effect.   The principle that contact between parent and child should not be unduly impeded must take precedence over the requirements of the trial process.

[9]      As  to  the  possibility  of  further  offending  against  the  child,  there  is  no indication in the Judge’s decision that considerations of that sort were raised as a reason for the imposition of the non-contact condition.  If there are concerns as to the child’s safety if there is contact with his father, then those concerns would be better addressed by proceedings under the Care of Children Act than by conditions of bail. The processes available under that Act, and the specialist processes of the Family Court, provide a better mechanism for addressing such concerns, if they arise, than the jurisdiction of the District Court as to bail.

[10]     For these reasons, the appeal is allowed and the condition prohibiting contact between the appellant and his son is deleted.

“A D MacKenzie J”

Solicitors:           Mr F   in person

C P Stevenson for Respondent