GLE v MMW
[2021] NZHC 1862
•22 July 2021
NOTE: PURSUANT TO 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,
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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 1862
UNDER the High Court Rules 2016 and the Care of Children Act 2004 IN THE MATTER OF
an appeal against a decision of Judge Coyle in the Family Court dated 8 June 2021
BETWEEN
GLE
Appellant
AND
MMW
Respondent
On papers Counsel:
G J Haszard for appellant D J Eades for respondent
J A Douglas, lawyer for child
Judgment:
22 July 2021
JUDGMENT OF TOOGOOD J
[Application for stay of Family Court orders]
This judgment was delivered by me on 22 July 2021 at 3.00pm, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
Solicitors:
Lee Jack, Tauranga for appellant
Lance Lawson/Beachside Legal, Mount Maunganui for respondent John Douglas, Tauranga lawyer for child
GLE v MMW [2021] NZHC 1862 [22 July 2021]
Introduction [1]
Background facts [7]
Judge Coyle’s reasons for his decision [9]
Post-judgment events [20]
The applicable principles [21]
The mother’s position [25]
Mr Warwick Hansen’s opinions [30]
Ms Sue Lightfoot’s opinions [33]
The father’s position [34]
Submissions for the mother in support of the stay application [35]
Submissions for the father in opposition [36]
Mr Douglas’s report and submissions as lawyer for the child [39]
Discussion [41]
Conclusions [48]
Order [51]
Costs [52]
Introduction
[1] On 8 June 2021, Judge Coyle made orders in the Family Court in the following terms:1
(a)I make a Final Parenting Order in relation to [O], born [in December 2007], in the following terms:
(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 [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.
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.
(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 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].
[2] A practical issue arose in terms of the orders requiring contact every second Sunday, which created a possibly inadvertent conflict between the contact orders and O’s commitments to playing football in Auckland every second Sunday. Sensibly, the parties mitigated the difficulties by agreeing that contact should occur on Saturdays to enable O to travel to Auckland with his team when required.
[3] On 1 July 2021, the mother filed a notice of appeal against the orders and made a without notice application for a stay of the orders pending the hearing of the appeal. Affidavits from the mother and a psychologist, Mr Warwick Hansen, were filed in support of the stay application. Counsel for the father was served on a “Pickwick” basis.
[4] The stay is opposed by the father who has filed an affidavit in opposition and I have received focused written submissions from counsel for both parents and from Mr Douglas, lawyer for the child.
[5] The appeal has been set down for a one-day hearing in this Court on 10 August 2021. Ms Sue Lightfoot, a highly experienced child psychologist who reported to the Family Court under s 133 of the Care of Children Act 2004 (the COCA or the Act), has been requested to provide an updated report. A timetable order for the filing of submissions on the appeal has been made.
[6] In terms of Judge Coyle’s orders as amended by the parties informally, three unsuccessful attempts were made to establish contact. Two further contacts between O and his father are due to take place before the hearing of the appeal, on 24 July 2021 and 7 August 2021.
2 Lawyer for the child in the Family Court proceeding.
Background facts
[7] To explain my reasons for the determination on this application, it is necessary to describe the background facts and Judge Coyle’s reasons for a decision given in what the Judge said is “a very difficult case” and one he decided by “the narrowest of margins”.3 I take the facts from Judge Coyle’s judgment and the affidavits filed by the parties; they do not appear to be in dispute. What will be at issue in the appeal is whether, on the largely-agreed facts and in the light of post-judgment experience, Judge Coyle’s finely balanced decision should be upheld.
[8] The background facts as found by the Family Court Judge were conveniently summarised in the judgment in a passage which I replicate, with appropriate amendments to preserve anonymity:4
[1] [O] was born [in] December 2007 and is therefore nearly 13 and a half years old. He has no relationship with his father … at all. That is what [O] and his mother … want.
[2] [O’s] parents lived together for 10 years, separating in October 2016. From the outset [the mother] placed barriers to [the father’s] attempts to have a relationship with [O] following their separation. It is well-known that delay is the ally of a parent seeking to negatively influence a child’s relationship with the other parent, and in this case the delays that occurred have directly informed the issues that I need to resolve in the context of this hearing. Some of those delays were systemic. For example, before [the father] could file his application for a Parenting Order, he was required to complete a Parenting Through Separation programme and FDR. I accept his evidence that there was a consequent and substantial wait time before he could attend the Parenting Through Separation course, and then file his applications.
[3] Secondly, those working with this family following their separation clearly failed to recognise this case for what it was; that is, a case in which there was a real potential for [O] to lose his relationship with his father because of [O’s] mother’s influence. Instead, those working with [O], including [his mother], embarked upon a process in which [O] (who at separation was nine) solely directed his relationship with his father. That is, if [O] said he did not want to see his father; that was entirely supported by [his mother] and by the counsellors working with [O]. At no stage does it appear that anyone gave any consideration to [O] being only a nine year old, and recognising that whilst his views were important, ultimately it was the adults who should be making decisions about his care and contact arrangements. No one appear [sic] to recognise that this is a case in which [O] was steadily being alienated by [his mother].
3 MMW v GLE, above n 1, at [36], [37].
4 Footnotes omitted.
[4] Then, once an application was filed in Court, it again appears that none of those involved in this case appeared to recognise that [O] was becoming alienated from his father. The Court eventually directed a s 133 report, and as is clear from that report by Ms Lightfoot, [O] is now entirely alienated from his father.
Judge Coyle’s reasons for his decision
[9] The Judge recognised that O’s “welfare and best interests … in his … particular circumstances” must be the first and paramount consideration in the proceeding,5 and that he was required to consider the relevant principles set out in s 5 of the Act. Consistently with the requirements of s 6, the Judge acknowledged that he was obliged to take O’s expressed views into account. He said:6
[7] … [O] has been represented throughout these proceedings by Ms Bromiley and has been clear in his views throughout that he wants to have no contact with his father at all. He has expressed identical views to Ms Lightfoot, the s 133 report writer, and in a judicial interview with him prior to the hearing, [O] was quite clear to me that he wants no contact with his father at all. Given [O’s] age and maturity I need to give significant weight to [O’s] views. [O’s] views are not, however, automatically determinative of the outcome. For I still need to be satisfied that giving effect to [O’s] views is in his welfare and best interests. …
[8] [O’s] views are also before the Court through email communications from a counsellor working with [the father, the mother and O], and [Ms Maree Webster, a therapist], and through a letter from Mr Hansen, a clinical psychologist who had been seeing [O] in accordance with the recommendations of [a doctor]. [O] was quite clear to both of them that he did not want any contact with his father, and it appears that Ms Webster adopted the view that it would be counter to good practice and therapeutically abusive of [O] to try and work in restoring the relationship between [O] and [his father], when [O] had such clear views.
[10] Addressing the principles set out in s 5 of the Act, the Judge made the following findings:
(a)There was no evidence before the Court to justify a finding that the father had in any way harmed or abused O.
(b)O’s psychological safety is distinctly at risk in the care of his mother because:
5 Care of Children Act 2004, s 4.
6 MMW v GLE, above n 1 (footnotes omitted).
(i)the mother has an entrenched hatred of the father and has consistently refused to consult with him as a guardian; and
(ii)she is dismissive of the father’s assertions that he loves O and believes that his sole motivation in continuing to seek a relationship with O is so that his parents can have a relationship with their grandson.
(c)The mother’s view of the father is devoid of reality and is simply symptomatic of her absolute hatred for and antipathy towards him.
(d)Contrary to the mother’s views, the father (who has remarried) clearly loves O deeply and is distraught at the lack of relationship.
(e)The mother was unable to contain her hatred of the father in the Court environment, leading the Judge to conclude that O was similarly exposed through his mother’s demeanour to her entirely negative attitudes and beliefs about the father, which meant that O’s psychological well-being was distinctly harmed when in his mother’s care.
(f)O has been only in the care of his mother, particularly during the four years following separation in October 2016 when O was aged nine.
(g)As to the principle in s 5(e) of the Act that O should have a relationship with both of his parents and with his wider family group, the mother is English and has no family in New Zealand at all; her father’s previous visits to New Zealand for around three months each year, during which O would spend time with his maternal grandfather, have ceased due to COVID-19 restrictions.
(h)Although the father’s parents and siblings are alive and well, O has no relationship at all with his paternal family which also includes his half-
sister (the father’s daughter from his new relationship) and the father’s stepchildren.
(i)The mother and O are entirely enmeshed in each other’s lives and have no significant relationships outside of their relationship.
[11] The Judge noted that the father had not always been physically and/or emotionally available to O during the period in which he and O’s mother lived together, particularly towards the end. When the father left the relationship, he did not spend any time with O explaining why he was leaving and what his relationship with O would look like following his parents’ separation. Instead, he simply left with no communication with O at all.
[12] The Judge endorsed the view of Ms Lightfoot that there is fault by both parents in creating the present circumstances. The Judge said that, despite the father’s attempts after the separation to agree on arrangements for his contact with O, the mother chose to acquiesce in O’s views that there should be no contact. This is despite her being able to challenge O’s views in other respects. Ms Lightfoot said O has become alienated from his father and his refusal to have contact with his father has been supported and enabled by his mother. That meant he had developed a sense of entitlement about contact with his father. Ms Lightfoot was concerned that O would take this sense of entitlement into all of his relationships, including his intimate relationships, as a result of his inability to navigate a situation in which his will was directly challenged and to find a compromise resolution.
[13] The Judge said he believed that the mother was incapable of supporting the relationship in the way Ms Lightfoot advocated and said he would be surprised if she had the capacity to wholeheartedly support and implement contact orders made by the Court.
[14] The Judge was concerned that the loss of the potential for a relationship with his father would be significant for O because:
(a)if the mother should become incapable of parenting O, then his father provides the only care option for him, and
(b)he would lose his relationship with his half-sister and his paternal grandparents who are essential aspects of O’s identity and of who he is.7
[15] The Judge said also that giving effect to O’s views had the potential to reinforce his negativity towards his father and he was concerned that if O was forced to see his father, he would simply run away, although Ms Lightfoot had expressed some scepticism as to whether that would in fact occur.8 The Judge said some form of enforcement action might be required if the Court made an order for contact and that would involve O in further litigation and further conflict.
[16] Ms Lightfoot recommended continuing counselling for O and his parents, but the Judge noted that counselling between the parents and separate counselling and therapy for O had occurred and had been entirely unsuccessful. That was partly because the mother had refused to move from her position of reinforcing O’s right to make his own decision about contact. A psychologist working with O had been unable to make any progress changing his mind.
[17] Judge Coyle said that, during the judicial interview conducted in connection with the hearing, he explained to O that, if the Court made an order, it needed to be complied with and, if it was not, there would be consequences, not for him but for his mother. He took O through those consequences in terms of the remedies set out in s 68 of the Act for breach of a parenting order, referring to the possibility of his mother being prosecuted and, for continuing breaches, held in contempt of court which may result in his mother being imprisoned because of decisions made by O.
7 Section 5(e) of the Act provides that “a child should continue to have a relationship with both his or her parents, and that a child’s relationship with his or her family group, whanau, hapū, or iwi should be preserved and strengthened”. Section 5(f) provides that “a child’s identity … should be preserved and strengthened”.
8 Ms Lightfoot has been expressly requested to report on these views in light of post-judgment events.
[18] Nevertheless, O made it clear to the Judge, as he had to the lawyer for the child, that he would not comply with any contact order that was made.
[19] In determining that there should be contact between O and his father on the terms outlined in the orders, the Judge reiterated to O that if he sabotaged the orders the Court made, the consequences would be likely to be borne by his mother and that it was for O to choose whether his mother may potentially be “punished” because of decisions he chose to make.
Post-judgment events
[20] The affidavits filed in relation to the stay application establish that the three attempts at contact in terms of Judge Coyle’s orders have been highly unsatisfactory experiences for O and for his parents. On all three occasions when O was meant to be having contact with his father, he was upset and verbally abusive towards his father and ran away. On the third occasion, he hit his father before doing so. Nothing in the evidence indicates that the father was at fault on any of those occasions and his reported responses were restrained.
The applicable principles
[21] The parties agree on the principles to be applied by the Court in an application for a stay of an order made by the Family Court under the COCA. The application is brought under r 20.10(2)(a) and (c) of the High Court Rules 2016, the applicant carrying the burden of establishing why the party holding judgment should not be entitled to act upon it and, where necessary, enforce it.9 That starting point, however, must be weighed against a legitimate need to preserve the pre-judgment position in case the appeal is successful.10
[22] In the end, the Court is required to give a decision which, in the Court’s assessment, provides a just outcome bearing in mind the respective rights and interests of the parties.
9 Brook Valley Community Group Inc v Brook Waimarama Sanctuary Trust [2017] NZCA 377 at [10].
10 NXP Holdings Ltd v Winc Australia Pty Ltd [2019] NZHC 3463 at [45].
[23] Special considerations apply, however, where the judgment appealed from is a parenting order under the COCA. As s 4(1) of the Act provides, the welfare and best interests of the child must be the first and paramount consideration in any proceeding involving the provision of day-to-day care for, or contact with, a child. In WAH v WTW,11 the Court of Appeal endorsed the principles expressed in Crosby v Crosby,12 which in turn substantially endorsed the principles listed by the Family Court Judge in that case. The principles are:
(a)The High Court has power to entertain an application for a stay of proceedings in respect of an appeal against a judgment of the Family Court.
(b)The overriding consideration in such an application is the welfare of the child or children.
(c)Whether or not the appeal will be rendered nugatory if a stay is refused will be a highly relevant consideration.
(d)The arguments in favour of a stay will be stronger if the decision under appeal has the effect of significantly changing the status quo.
(e)The Court will have regard to any evidence of lack of good faith in the filing of an appeal and an application for stay as a consequence.
(f)The reluctance of the High Court on appeal to interfere with findings of credibility, and the disposal of an appeal largely or entirely on the evidence heard in the Family Court, decrease the prospects of successful appeal and hence weaken the arguments in favour of a stay. This principle, however, is qualified in that there may be other reasons, such as developments since the initial hearing, which could influence
11 WAH v WTW [2010] NZCA 344 at [20]–[23].
12 Crosby v Crosby HC Auckland AP124-SW01, 21 December 2001 at [29].
the outcome of the appeal. In any event, an appellate judge would give anxious consideration afresh to all relevant factors.13
[24] On behalf of the father, Mr Eades argues that other cases decided in the Family Court or in this Court about stay applications do not offer much (if any) assistance in the present proceeding, given that this case is unique. It might be said that every case involving issues over the care of children is unique, in the sense that the circumstances of the family engaged in the dispute are unlikely to be replicated in their entirety.
The mother’s position
[25]In her affidavit filed in support of the stay application, the mother asserts:
(a)Judge Coyle’s perception of her as a mother to O is not correct; the relationship between O and his father was affected before the separation in October 2016.
(b)O’s father simply disappeared following the separation, having had no communication with O at all and subsequently making no contact with him until much later when he attended some of his sports events at which there was little interaction between them.
(c)O’s father was pre-occupied with his new partner, with whom he had started living in January 2017 and purchased a home in August 2017.
(d)Contrary to the Family Court Judge’s scathing criticism of her, she has tried to facilitate a relationship between O and his father in correspondence between their respective lawyers. The family dispute resolution in May 2018 produced some agreements to assist the father and son relationship in the future and Ms Webster provided therapy but, given O’s adamant views, Ms Webster ceased offering counselling.
13 An approach subsequently articulated by the Supreme Court in Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [32] per Elias CJ, citing Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].
(e)O was extremely upset after meeting the Family Court Judge on the day of the hearing – “he was beside himself” – and reported that the Judge had told him that if he granted contact and O did not go, the mother would go to jail. O told her that the Judge also talked about the mother going to hell if he did not have contact with his father.
(f)Since being told of the Court’s decision, O goes through stages of being very upset and crying. While he is usually happy, very focused at school and spends a lot of time with his friends and has a lot of extra- curricular activities, he is now often asking to have the day off school and has received counselling from time to time when he has left the classroom to do so. O claims that he is unable to concentrate on his schoolwork and complains of a sore tummy, that he is feeling sick, and is having difficulty sleeping.
[26] The mother described the events surrounding the first two attempts at contact in accordance with the Family Court’s orders. She says that she:
… managed to force [O] to go to the contact with [his father]. [O] was very upset and very worried about [her] going to jail. When we got to the meeting place and [O] saw his father, [O] burst into tears and ran around the corner. I managed to get him to [his father] with [O] sobbing. I told [him] to have a lovely time and left him crying.
[27] O ran away and eventually met his mother at the meeting point an hour later very upset. The mother alleged that the father asked her what she was going to do about “this” and that it was her responsibility that O had run away. She said that O had told her that he was beside himself crying and saying he had a sore stomach and had vomited. She says O said he had told his father he hated him and asked why he was making him do this.
[28] The same thing occurred at the time of the second contact on 26 June 2021, when O ran away and would not return to the meeting point until his mother was due to collect him an hour and a half after he had been dropped off. The mother said the father told her that, as O had run away, she should tell him he was not allowed to play
soccer the next day and that was her decision rather than his father’s because O already hated him enough.
[29]The mother summarised her current position in these terms:
30.In summary, [O] is adamant that he does not want any contact with his father currently. I hope in the future that he does. He has been forced against his will to have contact with his father despite his views. [O] is 13 and a half years old. His psychologist Warrick [sic] Hansen has said that he is about 14 to 15 years old in terms of his age maturity.
31.The order that was made by Judge Coyle from my perspective is not in [O’s] best interest. He has gone from a happy teenager doing well at school and his sports to now having difficulties with his schooling, concentration, physical reactions, crying, sore tummy’s [sic], vomiting, taking time out of the classroom.
Mr Warwick Hansen’s opinions
[30] Warwick Hansen is a registered psychologist who specialises in “Relationship Therapy, Interpersonal Violence, Trauma, Traumatic Brain Injury and Alcohol & Drug Issues”. He says he works with age groups from 16 to 70 years of age. Mr Hansen had two meetings with O prior to the Family Court hearing and has had two meetings with him since Judge Coyle issued his decision. Mr Hansen says that in the initial two meetings, O was adamant that he wanted no contact with his father at all “currently”. He said that when he suggested to O at the second meeting that he would eventually want to meet with his father, O agreed “but in his own time and on his own terms”. He said that O’s main objection to having contact with his father currently was “the way he and his mother had been treated by his father” as well as the father’s disconnection with him over the years. O said he remembered “loud voices, abusive language and behaviour” towards his mother and himself but not physical violence. Mr Hansen said he was satisfied that O’s view of the current situation and his relationship with his father is “independent” of his mother’s opinions.
[31] Mr Hansen met O after the first attempt at contact on 12 June 2021. He reported the same effect on O as recounted by O’s mother and added that O sees his father’s sudden interest in his sports as “weird”.
[32] He said that O told him he was not ready for these meetings with his father yet but that he had not ruled out contact with his father in the years to come. He wants any contact to be on his own terms rather than being forced into a situation and threatened with the incarceration of his mother if he does not abide by the Court decision. Mr Hansen considered that the Judge’s threat that O’s mother would go to prison if he did not go to the ordered contact was an unfair burden to place on him as it would introduce both fear and guilt into the relationship between O and his mother and deepen the rift between father and son, as well as deepening the trauma that is the outcome from the first meeting. Mr Hansen said his main concern is that “an already fractured relationship between father and son will be dealt serious damage by these forced liaisons”.
Ms Sue Lightfoot’s opinions
[33] I do not have the benefit of a report from Ms Lightfoot addressing the post- judgment issues over contact; she is not due to report to the Court until 6 August 2021, ahead of the appeal hearing. I consider, however, that Judge Coyle would have summarised reliably Ms Lightfoot’s views up to and including the hearing. In addition to the evidence I have mentioned already, she told the Court:
· O’s view that his father has abused him is simply a fictional construct by O to justify his refusal to have a relationship with his father.
· Not having a relationship with his father will be psychologically harmful to O, both in terms of his short- and long-term psychological development.
· O’s mother is, in every respect other than O’s refusal to have contact with his father, able to challenge to O’s views; for example, getting him to school when he does not want to go there.
· O and his mother have a shared negativity about O’s father, primarily communicated by conversations between O and his mother about past occasions in respect of which O had a very negative memory and that,
whether they are intended to be negative or not, those discussions have “a layered negative effect”.
· O has a sense of entitlement, enabled by the mother, which is concerning regarding his long-term psychological well-being. He will take that sense of entitlement into all of his relationships, including his intimate relationships. If O has not learned to navigate a situation in which his will is directly challenged and to find a compromised resolution, he will have great difficulty in sustaining long-term intimate relationships.
· The mother needs to change the way in which she parents O. At the age of 13, the child appears to be in control and that will pose difficulties when he is aged 15 and 16.
· If the Court decided that O should have contact with his father, the mother would need to be clear with O that she believes 100 per cent that such contact is best for him and that it must occur; that she unequivocally supports O’s relationship with his father; and that there would be consequences for O if contact is not supported by him or is undermined by him.
· The situation requires continued counselling for O and his parents.
The father’s position
[34] Focusing on the stay rather than the merits of the appeal, the father emphasises that he has attempted repeatedly to have contact with O since the separation. He says he has been denied because all arrangements prior to the decision under appeal were conditional on O’s willingness to meet him. His principal concern is that granting a stay will reinforce O’s and his mother’s refusal to comply with the Court’s orders. He is very concerned about the long-term effects of O being able to control the situation, and of what he sees as continuing psychological abuse of O by his mother.
Submissions for the mother in support of the stay application
[35]Ms Haszard submits that:
(a)The orders requiring contact, while intended to address the Court’s concerns of long-term psychological harm to O, appear to be causing significant distress to O.
(b)It is accepted that the appeal will not be rendered nugatory if a stay is refused.
(c)While the orders for contact appear to be relatively minimal, they represent a significant change for O which is having a profound effect on him. If a stay is not granted, he will be subject to the orders for contact on at least two further occasions before the hearing of the appeal.
(d)The change in the status quo is significant.
(e)There is only a short timeframe prior to the hearing of the appeal, a factor which favours a stay.
(f)The Court, on hearing the appeal, will have an opportunity to consider substantive arguments in respect of the appeal against a determination made by “the narrowest of margins” and the Court would have the benefit of an updating report under s 133 of the Act about the effect the orders have had, and likely will have, on O.
(g)The appeal has merit in that it raises, among other things, important issues in terms of the balance between psychological harm to O arising from contact versus no contact. It is not a frivolous attempt to undermine the orders made.
(h)The mother allowed time before filing her appeal to see whether O could abide by the orders; she refers to Mr Hansen’s professional concerns about O’s welfare.
Submissions for the father in opposition
[36] In opposing the stay, Mr Eades acknowledges that the three attempted contacts have been unsuccessful. Nevertheless, he submits that Mr Hansen is not sufficiently qualified to present reliable opinion evidence about the desirability of continuing to force O to have contact with his father pending the hearing of the appeal, suggesting that his evidence “needs to be treated with extreme caution, or alternatively outright ignored”. He says:
(a)O knew that whatever he said to Mr Hansen would be placed before the Court and that O was using Mr Hansen as a vehicle for expressing his views post-judgment.
(b)Mr Hansen is not a psychologist experienced in addressing the issues raised by the proceeding.
(c)Mr Hansen is not a child psychologist.
(d)Mr Hansen’s view that O’s reluctance to see his father was uninfluenced by O’s mother was formed prior to the hearing and prior to reading Ms Lightfoot’s report.
(e)Mr Hansen appears to be a partisan witness supporting the mother’s position.
[37] Mr Eades submits that a key piece of Ms Lightfoot’s evidence at the hearing was that, for a parenting order to work, it would need the sanction of the Court. In this case, the Court determined that an order for contact was in O’s long-term interests and while that position could be challenged on appeal, there is no new evidence justifying such a challenge. Mr Eades emphasises that granting a stay on the basis that O is opposed to the order may send a strong signal to O that whether the parenting
order is appropriate or not depends entirely on whether he agrees with it. That would not only undermine the authority of the Family Court in O’s eyes, but also the authority of any subsequent court decision. Entering a stay at this stage would empower O to make all future decisions about contact until the COCA no longer applies.
[38] Approaching the matter on a balance of convenience basis, Mr Eades submits that significant harm will be done if the Court gives way to O’s wishes at this stage, contrary to the considered views of the Family Court Judge, whereas requiring him to have contact on the next two occasions before the hearing of the appeal will not have a dramatic effect on the outcome of the proceeding. The current arrangement did not alter the status quo irreversibly.
Mr Douglas’s report and submissions as lawyer for the child
[39] Mr Douglas interviewed O in private on 20 July 2021. O is doing well in his schooling and enjoys a range of sporting activities, including competitive football. Mr Douglas found O to be a very engaging, thoughtful, and articulate 13-year-old, mature for his age. He says O is very determined that he is not going to see his father under any circumstances; he might reconsider his position when he is 18 or 19 years of age, but not now. Mr Douglas said it was clear that the three attempted contact visits were very distressing for O. He said he would have great concerns for O’s emotional and physical health if he is forced to have further contact with his father.
[40] Mr Douglas submits that, given the possibility that Ms Lightfoot might now consider that the effects of continued forced contact may be more detrimental to O in the short term than the long-term effects upon him of having no contact with his father, it would not be appropriate for the next two contact visits due on 24 July and 7 August 2021 to go ahead.
Discussion
[41] Difficult circumstances have been created by the father’s legitimate wish to have contact with his son and O’s apparently implacable refusal to have such contact, a position which his mother has made no apparent attempt to change. Nevertheless,
the Court must make an assessment that treats the welfare and best interests of the child, in the short period to the hearing of the appeal, as the paramount consideration.
[42] Addressing the Crosby v Crosby factors endorsed by the Court of Appeal, I find:
(a)The mother’s appeal will not be rendered nugatory by the refusal of a stay.
(b)The decision under appeal changed the status quo of no contact significantly but an early appeal hearing tends to mitigate any short- term detrimental effects of that change.
(c)There is no doubt that the mother intends to pursue her appeal earnestly and the stay application is not merely a device to delay giving effect to the Family Court’s judgment.
(d)Judge Coyle’s decision was founded in part, but significantly, on his observations of the mother as a witness. I must give due weight to his views that the overt hostility she displayed towards the father and Ms Lightfoot (who expressed firm views about the desirability of O having contact with his father) during the hearing meant that:
(i)the mother would have conveyed to O, not only by her words but by her demeanour, her firm belief that contact with his father would be inappropriate for him; and
(ii)the mother would not easily be persuaded to endorse the Court’s findings as to what would be in O’s best long-term interests and to encourage O to have contact with his father.
[43] Notwithstanding the mother’s scepticism and the father’s contribution to O’s complete disengagement from him, the Judge found the father’s professed love for his son to be genuine. There is no evidence that further contact in terms of the orders
would be negative experiences, were it not for O’s hostile attitude in which he is supported by his mother.
[44] I have given careful consideration, therefore, to Mr Eades’ submission that entering a stay at this point would be interpreted by O as approving, or at least not punishing, his wilful refusal to comply with the Court’s orders. And the granting of a stay would appear to endorse the mother’s position that O should not be forced to have contact with his father against his will. It does the mother no credit that, despite the clear indications of Ms Lightfoot that O’s long-term interests in his psychological development must be founded upon a different parenting approach by her, including the positive reinforcement of contact, there is no evidence that the mother has made any effort to encourage such contact. It does not weigh much in her favour that she has physically facilitated contact without giving O the encouragement that was so clearly necessary for there to be any prospect that the mandated contact would be less than traumatic for him.
[45] That said, I acknowledge that the mother has created a single-parent family environment in which O appears to be thriving.
[46] The Family Court orders for contact were predicated on a view that short-term difficulties were trumped by the longer-term benefits of contact, but the question for determination in this judgment is what should happen over the next three weeks. In a case involving an application for a stay where the status quo has been significantly altered by the judgment under appeal, and there is only a short delay until the hearing of the appeal, there is a strong argument in favour of granting a stay pending a thorough review of the Family Court’s decision by this Court on appeal. That argument is strengthened by acknowledging that Judge Coyle reached his decision in what he said is a very difficult case by “the narrowest of margins”.
[47] I must accept that it is highly probable that, going by O’s record of past behaviour, attempts at further contact will most likely result in failure and no contact will occur. O has made it clear that he will continue to disregard the Court’s directions notwithstanding the warning by the Judge, directly to him, of the direst of
consequences should he not comply with the Court’s views as to what was best for him.
Conclusions
[48] By refusing to accept the Family Court’s reasoning and comply with the contact orders, O and his mother are primarily responsible for the distress that has been caused and would be caused by attempts to force contact over the short period to an appeal hearing where all of these issues can be more thoroughly addressed with the benefit of Ms Lightfoot’s reconsidered opinion. Despite the strongest disapproval of the position taken by O and his mother, I have decided it would not be right to regard the interests of the child as being best served by the Court asserting its authority and requiring compliance with the Family Court’s orders.
[49] One of the issues likely to be at the forefront of the Court’s consideration on the appeal is the extent to which the Court should force a 13 and a half-year-old boy, said by both Mr Hansen and Mr Douglas to be mature for his age, into contact with his estranged father against his will, no matter how ill-judged his opinion may be in terms of long-term detriment.
[50] I will stay the Family Court’s orders up to the date of hearing only. After receiving Ms Lightfoot’s updated report and hearing from all counsel, the judge who hears the appeal will be better placed than I am at present to make a determination about continuing the stay pending delivery of the Court’s judgment.
Order
[51] I order that the orders at [40] of the Family Court’s judgment shall be stayed until the commencement of the hearing of the appeal by this Court.
Costs
[52] Notwithstanding the outcome, I regard the father’s opposition to the stay to have been principled and justifiable. The mother has succeeded in her application only because of O’s refusal to abide by the Family Court’s orders and her failure to actively
encourage him to comply. If costs are in issue, it would take some circumstance that is not presently known to me to persuade me that costs should not lie where they fall.
Toogood J
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