G v M
[2021] NZHC 2066
•10 August 2021
NOTE: PURSUANT TO S 182 OF THE FAMILY VIOLENCE ACT 2018 AND S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE
FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE
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IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE
CIV-2021-470-77
[2021] NZHC 2066
UNDER the Care of Children Act 2004 BETWEEN
E L G
Appellant
AND
M W M
Respondent
Hearing: 10 August 2021 Counsel:
G J Haszard for appellant (on instructions from L Jack) D J Eades for respondent
J A Douglas for child
Judgment:
10 August 2021
ORAL JUDGMENT OF KATZ J
Solicitors: Lee Jack, Tauranga
Lance Lawson, Tauranga
Counsel: G J Haszard, Barrister, Tauranga
J A Douglas, Strand Chambers, Tauranga
G v M [2021] NZHC 2066 [10 August 2021]
[1] This is an appeal from a decision of Judge S J Coyle, in the Family Court at Tauranga, under the Care of Children Act 2004 (“the Act”).
Background
[2] The parties lived together for 10 years, until separating in 2016. They have one son, “O”. Following his parents’ separation, O lived with the appellant (his mother). He currently has no relationship with the respondent (his father). The father applied for a parenting order that would enable him to have contact with O. The mother opposed that application.
[3] Following a contested hearing, Judge Coyle made a final parenting order in the following terms:1
(i)[O] is in the day-to-day care of [his mother].
(ii)[O] is to have contact with his father as follows:
(1)Every second Sunday from 12 noon to 1.30 pm commencing Sunday, 13 June 2021 with the changeover to be at [a specified location].
(2)From 1 August 2021 every second Sunday from 10 am to 4 pm with the changeover to be at the same place.
(3)From the weekend of 3 September 2021 from after school Friday until Sunday 3 pm with the changeover on the Sunday to be at the same place … and thereafter every second weekend from after school Friday until Sunday afternoon.
(4)From 12 noon on 23 December in odd numbered years through until 12 noon on 26 December in even numbered years with the changeover to be at the same place. In even numbered years, from 2 pm on Christmas Day through until 3 pm on 30 December.
(b)Any application for variation or any application for admonishment is in the first instance to be referred to me for consideration.
(c)I would ask that Ms Bromiley2 meet with [O] to discuss this decision with him and the reasons why and the Court’s clear expectation that
[O] will comply, and that if he does not, that there may be subsequent
1 MMW v GLE [2021] NZFC 5151 at [40]. The names of the parties and the child are anonymised in the citation and in this judgment.
2 Lawyer for Child in the Family Court proceeding.
consequences as discussed with [O]. Ms Bromiley’s appointment is therefore terminated in 21 days’ time so as to give her time to meet with [O].
(footnote added)
[4] Following the making of these orders, three attempts were made to establish contact between O and his father. These were unsuccessful and no doubt traumatic for all involved including, in particular, O. On all three occasions when O was meant to have contact he was upset and verbally abusive towards his father and ran away. On the third occasion he hit his father before doing so. There is nothing to suggest that the father was in any way at fault on any of these occasions. His reported responses were restrained.
Stay application
[5] On 1 July 2021, the mother filed an appeal against Judge Coyle’s decision. She also applied for a stay of the Family Court orders pending the hearing of the appeal. The stay application was heard on a Pickwick basis.3 Toogood J granted a stay up until the date of the hearing of the appeal (i.e. today).4
The parties’ current position
[6] In the lead up to today’s hearing both parties have reflected carefully on the best way forward, with the benefit of a comprehensive and helpful updated s 133 report prepared by Ms Lightfoot, a registered psychologist.5 That report takes into account the failed contact attempts following the Family Court hearing.
[7] Ms Lightfoot canvasses various ways forward, but ultimately appears to be most supportive of a therapeutic approach to re-establishing contact between O and his father. This would require a variation of the current orders. Ms Lightfoot notes, however, that such an approach can only be successful with the support of both parents.
3 That is, an ex parte application at which the respondent is present. See Pickwick International Inc (GB) Ltd v Multiple Sound Distributors Ltd [1972] 1 WLR 1213 (Ch).
4 GLE v MMW [2021] NZHC 1862 at [51].
5 The Court may order specified reports under s 133 of the Care of Children Act 2004.
[8] Fortunately, it now appears that both parents agree that a therapeutic approach aimed at restoring the relationship between O and his father is the best way forwards. Such an approach would involve O working more gradually towards re-establishing a relationship with his father, with all parties (O, his mother, and his father) undertaking counselling either together or separately, towards that aim. Ms Lightfoot has made a number of recommendations as to how best to maximise the prospects of a therapeutic intervention approach succeeding. Amongst other things, she advises that a therapeutic intervention approach in these types of difficult cases is significantly enhanced by the oversight of the Court.
[9] Given the significant progress that had been made prior to this morning’s hearing, I stood the matter down to enable further discussions to take place between all involved. Those discussions were productive and have resulted in the parties agreeing proposed interim orders. Those orders are supported by Lawyer for Child. I have reviewed them and am satisfied that they are in O’s best interests. I accordingly propose to allow the appeal, by consent, and substitute the new interim parenting orders that the parties have agreed.
[10] I commend the parties and their counsel on the constructive approach they have taken to resolution of this very difficult case. It is clearly in O’s best interests that his parents present a united front going forwards, and I encourage them to continue with the constructive approach that was evident today.
Is there jurisdiction to make an interim parenting order?
[11] I note that my decision to allow the appeal is made in light of events subsequent to the Family Court hearing, and with the benefit of an updated s 133 report from Ms Lightfoot. No criticism of Judge Coyle is intended. It is necessary, however, to engage with one comment by the Judge that I believe to be in error. He stated in his judgment that “I have made a final order as that is what the Act requires”.6 The Judge cites s 49C(2) of the Act as authority for that proposition.
6 MMW v GLE [2021] NZFC 5151 at [39].
[12] Under r 20.19 of the High Court Rules 2016 this Court, in its appellate jurisdiction, is entitled to “make any decision it thinks should have been made” by the lower Court. Obviously, I cannot make an interim parenting order, even by consent, if such an order would have been beyond the jurisdiction of the Family Court. I accept the submission of all three counsel this morning, however, that the Family Court did have jurisdiction to make an interim parenting order. It follows that this Court also has jurisdiction to make such an order on appeal. In particular, s 49 of the Act provides for the making of interim parenting orders at any time before an application for a parenting order is finally determined in court if the Judge is “satisfied that an interim order serves the welfare and best interests of the child better than a final order”. In my view it was therefore open to the Judge to defer making a final parenting order and to instead make an interim parenting order.
[13] I note that this interpretation of the relevant provisions is consistent with the views of the learned authors of Brookers Family Law – Child Law who state, when discussing the criteria for determining whether an interim order is better than a final order, that:7
Another situation where an interim order may be preferred is when a contact order is made in favour of a parent who has not had significant contact for some time, so that the effect of contact on the child can be monitored and assessed.
[14] That is precisely the situation here. Both parties, Lawyer for Child, and Ms Lightfoot are all agreed that ongoing court monitoring and supervision would be helpful while contact is (hopefully) re-established. That is best achieved through the making of an interim parenting order.
Result
[15] Against this background I allow the appeal, discharge the final parenting order made in the Family Court, and substitute the following interim parenting order, by consent:
(a)That O continue in the day-to-day care of his mother.
7 Amy Bayliss and others Brookers Family Law – Child Law (online looseleaf ed, Thomson Reuters) at [CC49.03].
(b)That the mother and the father agree to jointly engage Mr Warwick Hansen to provide therapeutic counselling to assist with the re-establishment of contact between the father and O, with the costs of the counselling to be shared equally between the parties.
(c)That the mother and the father agree to attending one-on-one sessions with Mr Hansen, joint sessions with Mr Hansen, sessions with O either jointly or separately and O attend separate sessions with Mr Hansen as recommended by Mr Hansen.
(d)The goal of the counselling is to be, without limiting Mr Hansen’s professional approach to the counselling:
(i)reunification between O and the father; and
(ii)promoting coping mechanisms for O under stress.
(e)Mr Hansen is to have access to the Family Court file, including the affidavits of both parties and the judgment of his Honour Judge Coyle.
(f)That a period of six months will be provided for the parties to undertake therapeutic counselling with Mr Hansen.
(g)That the matter is to be scheduled for a Judicial Conference of 30 minute duration in the Family Court at Tauranga not less than three months from the date of interim order, for Mr Hansen to provide an update to the Court on the therapeutic counselling and for consideration of orders to be made following the six month interim period. The parties are to file a memorandum and Lawyer for Child to provide an updating report three days prior to the Judicial Conference.
(h)That Mr Douglas, as Lawyer for Child, has leave to bring the matter back before the Family Court with 48 hours’ notice.
(i)In addition to the therapeutic counselling, that an order for s 46G communication counselling is made.
(j)That the mother and the father are the joint guardians of O and notwithstanding O is in the day-to-day care of the mother, the mother will ensure that the father is included in any guardianship decisions with respect to O.
(k)the father will ensure that he requests with O’s current school, or any other school that O attends in the future, to be included in all communications regarding O.
(l)the father to be listed at O’s school as a next of kin, together with the mother.
(m)the mother to send photos to the father of O, with O’s knowledge.
(n)the father and the mother will communicate regarding attendance at parent/teacher interviews for O. In the event that one parent is unable to attend the parent/teacher interview the attending parent will ensure the non-attending parent is provided with an update by e-mail within seven working days of the parent/teacher interview summarising what was discussed at the parent/teacher interview.
(o)The proceedings are referred back to the Family Court.
Katz J
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