Green v Blue
[2025] NZHC 1872
•9 July 2025
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,
PLEASE SEE https://www.justice.govt.nz/family/family-court/after-the-family- court/restrictions-on-publishing-information/
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CIV-2023-419-000241
[2025] NZHC 1872
UNDER the High Court Rules 2016, s 143 of the Care of Children Act 2004, and ss 124 and 130 of the District Court Act 2016 IN THE MATTER OF
an appeal from a decision of Judge Blair in the Family Court at Hamilton dated
27 July 2023
BETWEEN
[GREEN]
Appellant
AND
[BLUE]
Respondent
Hearing: 10 December 2024; 27 February 2025 (via telephone);
Further material filed: 22 January 2025; 11 February 2025; 24
February 2025; 26 February 2025; 13 March 2025; 21 March
2025; 9 April 2025; 14 April 2025; 16 April 2025; 1 May 2025; 2
May 2025; 19 May 2025; 20 May 2025; and 26 May 2025Appearances:
B Hayes for the Appellant
B Westenra for the Respondent S Nepe as Lawyer for Child
Judgment:
9 July 2025
JUDGMENT OF WALKER J
This judgment was delivered by me on 09 July 2025 at 4 pm Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
Solicitors/Counsel:
B Hayes, Barrister, Hamilton
Wills Westenra Limited, Whangārei
[GREEN] v [BLUE] [2025] NZHC 1872 [9 July 2025]
TABLE OF CONTENTS
Introduction [1]
Background [8]
Course of the appeal [26]
Overview of appeal [35]
The further evidence adduced on appeal [40]
Affidavit October 2024 [51]
Further application to adduce more evidence [59] Application to adduce further evidence after the appeal hearing [64] Lawyer for the Child [71]
Family Court decision under appeal [74]
Approach to appeal [85]
Grounds of appeal [88]
Statutory framework [90]
Analysis [96]
Protection of child’s safety, welfare and best interests [97]
Process challenges [135]
A change in circumstances warranting intervention? [144]
Costs order relating to common bundle preparation [146]
Result [147]
Costs [148]
Introduction
[1]This is an appeal of a Parenting Order made by the Family Court in Hamilton.
[2] Jeremy is a seven-year-old with a diagnosis of autism spectrum disorder (ASD), the severity of which is yet to be determined.1 His parents separated before he was born. The relationship between them is fractious. They live in different areas of New Zealand; approximately 300 kilometres apart. Complex care proceedings have been on foot in the Family Court since November 2017. There is a protection order in place against the respondent (Jeremy’s father, Mr Blue) in favour of the appellant (Jeremy’s mother, Ms Green).
[3] On 27 July 2023, Judge D A Blair made a final Parenting Order under s 48 of the Care of Children Act 2004 (COCA).2 That order broadly determined that:
(a)Ms Green provides day-to-day care for Jeremy; and
(b)Mr Blue is to have contact with him at certain times and locations and under certain conditions, the most important of which is monitoring by Jeremy’s paternal grandmother (Ms Brown).
[4] The contact was structured in a formal, graduated manner, increasing both in frequency and length as time went on. This solution was carefully designed to cater for Jeremy’s high needs and mitigate transition challenges. The design was central to the Judge’s rationale, the importance of which I return to later in this judgment.
[5] According to the Parenting Order, Jeremy was to spend a five-night block of time with his father from Saturday 4 January 2025 until the following Thursday at 4 pm, unless the parents agreed otherwise. This contact period was still to be monitored by Ms Brown who is also a registered social worker and supervisor for a team of social workers providing clinical practice supervision. There is no designated place for this contact to take place and it was clearly the wish of Jeremy’s father that
1 The names in this judgment are fictionalised to protect the family’s privacy. The fictionalised names are those chosen by Johnstone J in an interlocutory judgment dated 20 December 2023. See [Green] v [Blue] [2023] NZHC 3787.
2 [Green] v [Blue] [2023] NZFC 7933 [decision under appeal].
this take place with his (Mr Blue’s) whānau at his home. As stated, this is some distance from Jeremy’s home with his mother.
[6] This was to be a step up from the existing contact arrangements in which, for various reasons, Jeremy has spent no more than one night per contact visit in his father’s care, save for a couple of isolated occasions in September and October 2024 when he stayed for up to three nights.
[7] Ms Green appeals this Parenting Order. Originally, she filed appeals against two decisions of the Family Court: the first being the final Parenting Order and the second being in respect of an application for a protection order against Ms Brown. The second application was dismissed by Judge Blair at the same time as he made the Parenting Order. The appeal of that decision has been discontinued.
Background
[8] In his decision dismissing various interlocutory applications filed by Ms Green, Johnstone J helpfully set out an overview of the background. I adopt that overview.3
[9] Ms Green applied to the Family Court without notice for a Parenting Order on 15 November 2017, when Jeremy was a newborn. An interim Parenting Order was made the same day providing for Ms Green to have day-to-day care of Jeremy, and for Mr Blue to have contact with Jeremy under the supervision of a person approved by the Family Court.
[10] In August 2018, the interim Parenting Order was varied by consent to allow Mr Blue’s contact to be supervised by a family member. By then Mr Blue had left the town in which Jeremy lived.
[11] On 2 May 2019, Judge Blair made a new interim Parenting Order under which Mr Blue was to have contact every third weekend, near Jeremy’s hometown and under the supervision of Ms Brown.
3 [Green] v [Blue], above n 1, at [6]–[16].
[12] Over the next four years, the interactions between Ms Green and Mr Blue became increasingly conflict ridden. They struggled to co-operate over the parenting and care arrangements for Jeremy. There were significant delays in progressing consideration of a final Parenting Order and associated contact arrangements. The reasons for those delays need not be set out here but provide the backdrop to the Judge’s approach to the issues.
[13] Given Jeremy’s ASD, Ms Green is concerned to ensure that anyone having care of Jeremy follows his routines to the letter because he is attached to them and can become very unsettled by change. This is an understandable concern. Ms Green has opposed Jeremy travelling any real distance under any contact arrangements with Mr Blue throughout this period.
[14] Ms Green expresses concerns about Mr Blue’s background of alcohol abuse and possible other drug use. Ms Green is worried that those issues may re-emerge and affect Jeremy. Those concerns were exacerbated after Mr Blue suffered a serious medical event in December 2020 during a contact visit and was hospitalised.
[15] Ms Green has no confidence in Ms Brown’s management of Mr Blue’s contact with Jeremy. My perception is that Ms Green views Ms Brown as conflicted in loyalties, with a tendency to minimise the care concerns and lacking insight into Jeremy’s high needs. On the other hand, Mr Blue and Ms Brown distrust Ms Green’s motivations. They see her as fixated on limiting contact to exclude Mr Blue’s side of the family from Jeremy’s life.
[16] I pause to interpolate that neither perspective serves Jeremy’s interests. It is apparent that a reset of the relationship is imperative.
[17]A judicial settlement conference in December 2021 did not resolve matters.
[18] On 9 December 2022, Mr Blue applied without notice to vary and enforce the interim Parenting Order because he had not had contact with Jeremy for more than three months following a (confidential) report of concern being made about him in
relation to his care of Jeremy.4 An interim variation was granted directing that Mr Blue was to have supervised contact with Jeremy in a specified location every fourth weekend at designated hours and supervised by Ms Brown. Those arrangements were to apply from 21 January 2023.
[19] On 20 January 2023, Ms Green filed a without notice application for a protection order against Ms Brown and a variation seeking to remove her as supervisor.
[20] After further procedural issues had been addressed and directions made, Judge Blair heard the applications bearing on the care arrangements for Jeremy between 4 and 10 July 2023. Notably, between the time of making those directions and the fixture in the Family Court, the High Court dismissed a without notice application by Ms Green for stay of the Family Court hearing and (for lack of jurisdiction) an appeal by Ms Green about directions made in the lead up to the Family Court hearing.5
[21] Ms Green was self-represented by that stage after having multiple counsel over the seven-year period of proceedings. While a difficult task, a review of the transcript shows that she conducted reasonably effective cross-examination. Some assistance was derived from the appointment of counsel to assist, Mr Gubb, who conducted cross-examination of Mr Blue on behalf of Ms Green.
[22] Judge Blair issued his reserved decision on 27 July 20236 in which he made a Parenting Order providing:
(a)Mr Blue’s contact with Jeremy is to be monitored by Ms Brown. Monitoring does not require continual presence but oversight and personal involvement at appropriate intervals during any contact period so as to ensure contact is proceeding satisfactorily.
4 A subsequent social worker review found no concern. However, Mr Blue says that following the contact weekend of 27 and 28 August 2022 there was no further contact with Jeremy for the balance of that year.
5 [Green] v The Family Court at Te Awamutu [2023] NZHC 1740.
6 [Decision under appeal], above n 2.
(b)In August 2023, the contact was to be on the first weekend of the month at designated hours during Saturday and Sunday (but not overnight) and based either in [redacted] or [redacted] at Mr Blue’s election.
(c)In September 2023, the contact was to be on the first weekend of the month from 9.30 am on Saturday to 11 am on Sunday and based either in [redacted] or [redacted] at Mr Blue’s election.
(d)Thereafter, weekend contact was to be over the first weekend of every calendar month from 9.30 am on Saturday (in one case from 5 pm on Friday) to 1 pm on Sunday and based anywhere within a 45-minute drive of [redacted].
(e)In the summer holiday of January 2024, the weekend contact was to extend to two nights but without restriction as to where contact was based.
(f)More extended contact comprising three nights was provided for in the April, July and September/October 2024 school term holidays without restriction as to where contact was based.
(g)From January 2025 a five-night holiday block with Mr Blue in each January summer holiday and each school term holiday without restriction as to where contact is based.
[23] The Parenting Order makes provision for other contact by virtual means such as Facebook messenger, WhatsApp message communications or a brief screen call. Other guidance is included in the Parenting Order such as the direction that Mr Blue is to be mindful of Ms Green’s description of Jeremy’s current routines, including as to bedtime and diet. Additionally, if Jeremy becomes inconsolably distressed during any contact period with his father, Mr Blue is to not unreasonably withhold Jeremy’s early return to his mother.
[24] The Parenting Order stipulates that all contact is required to proceed unless Ms Green has provided, in advance of contact, a doctor’s certificate advising that Jeremy is too unwell to leave his mother’s home for contact with his father. If Jeremy is only moderately unwell, contact proceeds and it falls upon Mr Blue with the assistance of Ms Brown to meet Jeremy’s needs even if in less than optimal health.
[25] There are other stipulations in the Parenting Order restricting Mr Blue’s consumption of alcohol or illegal and non-prescription drugs inside 72 hours of contact commencing, and not permitting Jeremy to be exposed to anyone who is intoxicated or possessing, consuming or under the influence of illegal or non-prescription drugs.
Course of the appeal
[26] The hearing of this appeal was delayed for various reasons. The appeal has been beset by applications for leave to adduce further evidence. Ms Green also applied for a stay of the Parenting Order pending this appeal, which was declined by Johnstone J.7 After that judgment there were yet further applications by Ms Green to adduce further evidence, some of which has been updating (and therefore admissible) but the remainder simply repeating earlier concerns.
[27] Whata J issued a minute dated 6 November 2024 recording agreement that the most efficient way to proceed was to allow the most recent tranche of evidence in with leave afforded to Mr Blue to file further evidence in response.8 To enable time for that, the allocated fixture date in November was vacated and adjourned to the hearing on 10 December.
[28] The appeal also took an unusual course post-hearing which requires some explanation. The backdrop to the hearing on 10 December 2024 suggested urgency in view of the next scheduled block of contact time between Jeremy and his father on 4 January 2025.
[29]On 20 December 2024 I issued a minute to the parties as follows:9
7 [Green] v [Blue], above n 1.
8 [Green] v [Blue] HC Hamilton CIV-2023-419-241, 6 November 2024.
9 [Green] v [Blue] HC Hamilton CIV-2023-419-241, 20 December 2024.
[2] Ms [Green] raises serious concerns about [Jeremy]’s welfare and regression since the decision of the Family Court. However, there is no cogent, in-depth and independent assessment from a psychologist or psychiatrist. Rather, the affidavits are underpinned by a high degree of self- reporting. I do not overlook the recent and very short letter from a consultant psychiatrist, Dr Loy, indicating that [Jeremy] is currently experiencing severe emotional and behavioural dysregulation and has started medication.
[3] I must be driven by a child-centred approach, as mandated in the Care of Children Act 2004 (COCA). The factual conflicts in the updating material currently before me are not matters I can resolve as an appellate Court. Nor are they all central to the required decision making.
[4] There is authority that a change in circumstances bears on the wide breadth of orders which an appellate court is able to make in this jurisdiction.
[5] In my view, whether there has been a change in circumstances arising from [Jeremy]’s condition which necessitates a different approach (and impact on this appeal including possible referral back to the Family Court) must be informed by an expert in the field of ASD who has carried out an independent and in-depth assessment of [Jeremy].
[6] Lest it be misunderstood, the interim view expressed in this minute is not to be construed as an acceptance that there is any causative relationship between the contact which has occurred to date and the reported emergence of more severe traits associated with ASD. It does not reflect adversely on [Jeremy]’s father and grandmother who are clearly committed to [Jeremy] and to maintaining their loving engagement with him.
[7] I am satisfied that I have jurisdiction to direct provision of a psychological report, relying on this Court’s inherent powers to make such a direction where essential for the proper disposition of the appeal. I do so by looking at s 133 of COCA by analogy. I must be satisfied the cumulative requirements under s 133(3) are met — namely that such a report is the best source of relevant information; there will not be undue delay, and any delay will not have an unacceptable effect on the child. The overarching consideration is the welfare and best interests of [Jeremy].
[8]I expect all parties to cooperate and engage with the report writer.
[9] Without forming any view on the substantive appeal itself, I consider it appropriate to pause the current contact programme set out in the Parenting Order under appeal, for a short period pending receipt of the report. This view is also supported by the fact that the carefully graduated scheme designed by the Family Court Judge has not in fact occurred as directed for various reasons. No fault is attributed to either party. But this of itself means there is an impactful different environment.
(Footnotes omitted.)
[30] I made interim orders directing appointment of a psychologist with experience in children with autism to prepare a report under s 133 of COCA covering stipulated matters. I directed that, pending receipt of the report or further direction of the Court,
the scheduled five-night holiday stay commencing 4 January 2025 would not take place and instead would revert to the “earlier in time” contact arrangements in the Parenting Order.
[31] A telephone conference was held on 27 February 2025 to discuss progress as to provision of such report and the short-term pause to the contact schedule.10
[32] At that conference all parties agreed that a s 133 report would be useful given the absence of specialist reports. Some delay had arisen however in terms of engaging a report writer. I invited counsel to address the Court on the implications of delay and whether it was appropriate to proceed to issue judgment on the appeal or defer judgment pending receipt of the report. At that stage a report was expected by the end of May 2025. Given the parties were in agreement about the usefulness of such a report, a psychologist was engaged on provision that the report be returned within the indicated period. On receipt of the report counsel were to be given an opportunity to file further written submissions on both the matters raised in it and the extent to which, if any, it is appropriate for an appellate court to consider such material.11
[33]On this basis, issue of judgment on the appeal was deferred.
[34] Regrettably, the report is not available despite effort by the appointed psychologist to obtain the necessary informed consents from both parties. While Mr Blue provided such consent, Ms Green did not. I have not permitted exploration of the reasons why this is so. I observe only that this means that an expert independent assessment is not available to the Court despite the Court’s best endeavours to close a perceived information gap in Jeremy’s best interests.
Overview of appeal
[35] Ms Green brings this appeal on grounds that the Judge erred in his approach to and application of key provisions of COCA and in his assessment of the evidence;
10 [Green] v [Blue] HC Hamilton CIV-2023-419-241, 27 February 2025. (Minute of Walker J recording the telephone conference).
11 I also directed that should counsel consider it imperative that there be a further hearing after receipt of the report than effort would be made to accommodate such request.
breached natural justice through procedural error and relied on inadequate and outdated information.12 The focus of Ms Green’s challenge relates to the unsupervised nature of the contact by Jeremy’s father and relatedly Jeremy’s safety when in his care. She asks this Court to quash the Parenting Order regarding contact by Jeremy’s father and substitute an order that he have monthly supervised contact at a supervised contact centre in designated places close to Jeremy’s home. This would be a reversion to the early days of contact when Jeremy was very young.
[36] Additionally, Ms Green has filed considerable further evidence about what she says has been the impact on Jeremy of the increasing contact and his inability to cope with it. She attests to Jeremy’s regression since implementation of the Parenting Order, development of obsessive-compulsive traits and oppositional defiance on occasions, along with debilitating physical symptoms which saw him hospitalised on more than one occasion.
[37] I pause to note that it was this information which led to me seeking an expert report. So far as the appeal hearing was concerned, there was no meaningful up-to-date assessment of Jeremy by a psychiatrist or psychologist before the Court.13
[38] Mr Blue opposes the appeal. He says that the Judge undertook a full and thorough assessment of Jeremy’s safety; there is no basis on which to quash the Parenting Order; and to do so would be a backward step for Jeremy. He and Ms Brown remain committed to connecting with Jeremy and sharing their culture.
[39] Ms Nepe, then Lawyer for the Child, also supports the Family Court decision. She submits that the Judge gave careful consideration to Jeremy’s safety, adopting a staggered approach to best meet Jeremy’s high needs and that substituting more restrictive contact would be a regressive approach.
12 This brief overview does not do justice to the multiple particularised grounds of appeal which I turn to later in this judgment.
13 See paragraph [34] above.
The further evidence adduced on appeal
[40] It is not possible to summarise all the further evidence adduced on appeal here. Nor is it necessary. I set out the key points only.
[41] Ms Green deposes that the first overnight contact between Jeremy and his father occurred only in October 2023 after an earlier contact (scheduled for the first weekend of September) was cancelled by Ms Brown.14 This meant a gap of 62 days from usual contact before overnight contact was introduced, along with a change in venue. She suggests that Jeremy began to regress significantly after this overnight contact.
[42] Ms Green maintains that she has tried to communicate Jeremy’s behavioural issues to Mr Blue and Ms Brown, including by provision of “instructions” for contact detailing how to deal with the regressive behaviours, how to avoid overloading Jeremy and how to deal with obsessive compulsive behaviours. However, this has not improved the situation.
[43] The overnight contact scheduled in November 2023 was cut short when Ms Brown returned Jeremy to his mother in the evening (without him staying overnight) because he was distressed. The precise sequence of events is contested by Ms Brown and Mr Blue. What is agreed is that Jeremy had visited the doctor that morning with Ms Green, complaining of a sore throat, and had been prescribed antibiotics and Pamol for pain relief. At handover, Ms Green instructed Ms Brown about Jeremy’s state of unwellness. She deposes that when he returned, Jeremy was unsettled, extremely distressed, complaining about his sore throat and crying. In her view he had been overwhelmed by the activities of the day with his father and grandmother. Ms Green describes the day as “way too much for Jeremy” in one contact.
14 Affidavit of Ms Green in support of further application to adduce further evidence and interlocutory application for stay of orders, affirmed 27 November 2023.
[44] Ms Brown filed an affidavit responding to Ms Green.15 She deposes that the overnight contact in October 2023 was a “lovely visit” and Jeremy enjoyed himself. She disputes the suggestion that she was not sufficiently attentive to Jeremy’s sore throat during the November visit and has a different perspective on the events leading to Jeremy not staying overnight on that occasion.
[45] Ms Brown also describes the next contact visit in December 2023. She deposes that it was uneventful. Jeremy was happy to stay the night and slept through. He engaged with his father building huts and playing hide and seek. They returned Jeremy to his mother at 1 pm the next day. She did, however, witness an episode of dysregulation on handover back to Ms Green when Jeremy wanted to open the wrapped Christmas presents they gave her to take home for him. Transitioning from one carer to another in contact situations is commonly fraught and needs careful management.
[46] However, around this time, Ms Green reported to Ms Brown that Jeremy had regressed severely, was suffering hallucinations, delusions and having disturbed thoughts. She suggested to Ms Brown that she and Mr Blue refrain from asking Jeremy any questions in video calls to avoid overwhelming him. Several video calls were missed over the Christmas period.
[47] The January 2024 contact visit was scheduled to be from Saturday 6 January to Monday 8 January, but did not take place as Ms Brown was unwell.
[48] Ms Brown deposes that the visit in February 2024 went well with no issues. According to Ms Brown, Jeremy asked to stay another night.
[49] Mr Blue also filed a short affidavit in response to Ms Green but largely defers to his mother’s evidence. He deposes that they had some “wonderful visits” over the past few months, Jeremy wants his attention more, has “really enjoyed himself”, and they have developed a “close bond” with each other.16
15 Affidavit of Ms Brown in response to affidavit of Ms Green (affirmed 27 November 2023), sworn 19 March 2024.
16 Affidavit of Mr Blue in response to affidavit of Ms Green (affirmed 27 November 2023), sworn 19 March 2024.
[50] Ms Brown also describes the March 2024 visit as having gone well with Jeremy asking again to say another night. She acknowledges that video calls after this visit were challenging as Jeremy was often hiding or would not engage.
Affidavit October 2024
[51] This affidavit of Ms Green annexes affidavits filed in July 2024 and September 2024 in the Family Court, in support of an application for leave to vary the Parenting Order and seeking suspension of contact. That hearing has not yet taken place. A submissions-only hearing had been scheduled but was rescheduled and I am told is now taking place on 5 August 2025.17
[52] Ms Green describes Jeremy’s condition as worsening with heightened anxiety since starting overnight contact with his father and grandmother. The litany of specific complaints are too many to recount in this judgment. She deposes that Jeremy has complained to her about the way his father treats him, that his father and grandmother argue in front of him causing him anxiety, and feed him unhealthy foods. She explains that Jeremy has complained of physically abusive behaviour by his father when his grandmother is not present, including being pushed and his father lying on top of him, not squashing him but making him feel trapped and frightened. According to Ms Green, Jeremy has voiced to her that it is getting to “dangerous levels”.
[53] In response Ms Brown, who clearly takes the lead in managing the relationship with Jeremy, contends that these are untruths, or have been taken out of context or exaggerated.18 She fervently denies that there has been a worsening of Jeremy’s behaviour “due to” the overnight contact with her. However, she deposes to noticing a change in Jeremy’s behaviour in the October 2024 school holiday visit (Saturday 5 October to Tuesday 8 October), describing him as more aggressive and voicing anger. She notes that he wants to be on his father’s phone constantly and if they take it from him, he gets angry.
17 This is outside the two-year period since the making of the Parenting Order and as such, no leave is required. See Care of Children Act 2004, s 139A.
18 Affidavit of Ms Brown in response to affidavit of Ms Green (affirmed 29 October 2024), sworn 19 November 2024.
[54] Ms Green also gave evidence about an episode of severe constipation suffered by Jeremy prior to and during a contact period in September 2024, which led to him being hospitalised on his return to her. She describes Jeremy’s behaviour at the hospital as aggressive, agitated and argumentative.
[55] Ms Green further deposes that the frequent cancellation of contact at the behest of Mr Blue and Ms Brown, including all school holiday contacts before October 2024, has meant that the gradual transitioning envisaged by the Judge has not taken place. The implicit suggestion is that this has exacerbated the deleterious impact on Jeremy.
[56] An appellate court is not able to resolve conflicts in evidence and some of these sorts of differences of opinion or perspective between day-to-day carers and contact parents may not be unusual. Indeed, a child may suppress emotion or anxiety in the presence of the nonday-to-day carer or in less familiar environments and reserve the most extreme behaviours for the custodial parent.
[57] The essence of Ms Green’s further evidence is that Jeremy is not coping well with the increased contact with his father and grandmother, and his behaviour has worsened to such an extent that she sought intervention from the Mental Health Crisis team in November 2024.
[58] It is apparent, assuming these reports are accurate, that Jeremy needs urgent assessment by an independent expert witness to consider a basis for the source of these behaviours. As noted above at [34], regrettably, such an assessment is not currently available to the Court.19
Further application to adduce more evidence
[59] The slew of further affidavit evidence did not stop there. Five days before the hearing, Ms Green filed another application for leave to adduce further evidence. This included a letter from Dr Jik Loy, a consultant child psychiatrist, dated 27 November 2024. Mr Blue consented to the production of the letter but not to the further affidavit from Ms Green which was said to provide the Court with an
19 For completeness I record that Ms Green deposes that a psychological assessment was scheduled to take place on 21 November 2023 but, due to illness, had to be rescheduled.
update on Jeremy’s behaviour following a contact visit with the respondent from Friday 1 November to Sunday 3 November 2024.
[60] I declined the application for leave to produce a further affidavit on the basis it was too late and prejudiced Mr Blue but permitted Ms Green to produce the letter from Dr Loy. The confirmation from Dr Loy that Jeremy has recently developed “severe emotional and behavioural dysregulation” for which he has just started medications is an important piece of information for the support and management of Jeremy and must be taken on board by anyone charged with his care.
[61] This ruling was not to minimise Ms Green’s concerns but to refocus the appeal on the essential question — whether the Family Court Judge erred when he made the Parenting Order in question.
[62] The consequence of the various applications for leave to adduce further evidence meant that it was extremely difficult to clearly identify what material is before the Court on this appeal.
[63] The allocated hearing was to be a two-day fixture to determine both the substantive appeal in this proceeding and the appeal against Judge Blair’s judgment in relation to the protection order. After the second appeal was withdrawn the hearing time was reduced to a half-day despite the voluminous material and transcript presented.
Application to adduce further evidence after the appeal hearing
[64]On 9 April 2025 Ms Green applied for leave to file further evidence:20
(a)in support of a without notice application to vary the final Parenting Order; and
(b)to rebut previous evidence filed by Mr Blue.
20 The application was made in reliance on r 20.16 of the High Court Rules 2016.
[65] At that time Ms Green was expecting a letter of support from a psychologist engaged outside the court system. She expected that letter would diagnose Jeremy with both attention deficit hyperactivity disorder (ADHD) and autism, which would amount to a clear material change of circumstances.
[66] Ms Green also asked this Court to vary the Parenting Order without notice on an interim basis, again reducing overnight contact with his father and limiting that one-night stay to an area close to his mother until the appeal is determined. The basis for approaching this Court was said to be the lack of urgent hearing time in the Family Court.
[67] By minute dated 15 April 2025, I declined to hear an application for variation.21 I was not satisfied that this Court had any jurisdiction since it is acting in its appellate capacity, and the proper forum was to apply in the Family Court for leave to vary the final Parenting Order rather than try to skirt around s 139A of COCA. I explained that the course I took over the Christmas period was driven by exigency over the period in which the Courts closed.
[68] With respect to the application to adduce yet further evidence, counsel for Mr Blue contends that Ms Green should not be granted leave some 20 months after the appeal was originally lodged and when the Court provided an opportunity for an independent expert witness to provide evidence. I accept this submission. If more evidence were permitted, there would need to be an opportunity to respond leading to further delay. More delay is contrary to the interests of Jeremy.
[69] On 26 May 2025, Ms Green made another application to adduce further evidence on appeal to include documents filed in the Family Court proceedings and to respond to assertions made by counsel for Mr Blue opposing the last application to adduce further material.
[70] I am not satisfied that the material is fresh. Nor is it critical to the issues on appeal. It raises serious allegations against a Judge of the Family Court and ignored
21 [Green] v [Blue] HC Hamilton CIV-2023-419-241, dated 15 April 2025.
my direction that there was to be no more evidence filed in relation to this appeal. I have put it to one side.
Lawyer for Child
[71] Jeremy was represented at the Family Court hearing and at the appeal hearing by Lawyer for Child, Ms Nepe. Ms Nepe provided a report to the Family Court dated 29 June 2023, summarising her attendance during a contact visit Jeremy had with his father. However, she confirmed that she had not interviewed Jeremy again prior to the appeal hearing and explained that Jeremy’s current circumstances are more appropriately addressed in the Family Court proceedings.22 I observe that Ms Green’s reports of Jeremy’s comments to her and the language he uses appear inconsistent with the Judge’s view that Jeremy would not be able to communicate his point of view. This apparent discrepancy is but one of a constellation of factors which makes decision-making in this case extremely difficult.
[72] Ms Green has expressed disquiet about the lack of contact between Ms Nepe and Jeremy. She has filed a complaint. At a chambers list hearing, Jagose J observed that a change to Lawyer for the Child at such a late stage risked prejudice to the child’s best interests and directed that Ms Green’s concerns could be expressed on the appeal to the extent relevant.23
[73] I formed the view that this is not a matter which can or should be dealt with on an appeal. There are other mechanisms to pursue such issues and I considered that continuity of representation remains critical. I therefore declined to deal with Ms Green’s concerns save in respect of the ground of appeal that there is insufficient information before the Court about Jeremy’s wishes.
Family Court decision under appeal
[74] There were several pre-hearing conferences before the hearing in the Family Court, to focus the parties’ attention on the issues and to rule on admissibility of
22 I expect that Jeremy’s views obtained through Lawyer for Child will be important in respect of any application made in the Family Court to vary the Parenting Order and trust that Lawyer for Child will be appointed in that process.
23 [Green] v [Blue] HC Hamilton CIV-2023-419-241, dated 11 September 2024.
evidence. Ms Green takes issue with those rulings but has not specifically appealed them. Instead, she challenges them under the guise of a breach of natural justice ground of appeal.
[75] Judge Blair carefully explained the decision-making parameters, namely that the decision for Jeremy would:24
(a)ensure his overall welfare and best interests will be kept at the forefront;
(b)consider evidence about Jeremy’s particular needs;
(c)address the principles of s 5 of COCA;
(d)address Ms Green’s safety allegations and concerns raised against Mr Blue and consider s 5A of COCA given the existence of a protection order in favour of Ms Green against Mr Blue; and
(e)determine Jeremy’s ongoing care and contact structure.
[76] The Judge noted his optimism that because of the decision the parties would resolve their differences and show they could modify arrangements to grow with Jeremy, alongside the emergence of further insights into his challenges and needs.25 If not, (subject to s 139A of COCA) the parties had the ability to bring further proceedings in respect of Jeremy two years from the date of his decision or earlier with leave.26
[77] He first summarised the information before him in respect of Jeremy’s daily routines, schooling, and interactions. Regarding Jeremy’s views pertaining to care and contact arrangements, the Judge outlined the report prepared by Lawyer for Child, Ms Nepe, following her attendance at a contact visit with Jeremy’s father. The Judge noted that at Jeremy’s young age and taking into account his diagnosis along with his
24 [Decision under appeal], above n 2, at [19].
25 At [20].
26 At [18].
developing verbal skills, the Court could not (at that time) expect to have direct verbal instructions expressed by Jeremy. He was not interviewed by the Judge for this reason.
[78] Next, the Judge turned to the legal framework before narrating the procedural history. He noted Ms Green’s lack of engagement with the psychologist originally appointed to prepare a s 133 psychological report for Jeremy.27 He described how, on 23 December 2021, Judge G S Collin directed that a s 133 report be obtained and a referral to a child psychologist was made.28 Following ongoing resistance from Ms Green, the direction was reiterated on 1 June 2022. By August 2022, a psychologist was appointed but experienced difficulties contacting Ms Green and gaining her consent to the assessment process. Judge Blair explained that finally, in the lead up to the Family Court hearing, it became apparent that the s 133 report would not be filed. On 28 June 2023, he therefore cancelled the direction for the report.29
[79] Based on the information before him, the Judge summarised the allegations and concerns of the parties and Mr Blue’s circumstances, in particular his background of alcohol abuse and other drug use. He noted Mr Blue’s self-advised updated position that he had not drunk alcohol since an instance of pancreatis in December 2020, and did not use cannabis or any other illegal or non-prescription drugs. The Judge assessed that Mr Blue had a “fragility about him both in a medical sense and in relation to his addiction issues” and likely carried “an anguish about seeing so little of his son”.30
[80] The Judge also referred to a two-location (dual author) s 132 report31 directed on 14 February 2019, which noted no care or protection concerns relating to Jeremy’s mother, Ms Green, but likely concerns if he was left in the unsupervised care of his father given the issues pertaining to Mr Blue at the time. Both authors of the report
27 Care of Children Act 2014, s 133.
28 Relatedly, on 31 May 2022, Ms Green made without notice application for recusal of Judge Collin. The further evidence which Ms Green wished to adduce following appeal (application dated 26 May 2025) included details of her application seeking recusal of the Judge. As discussed above at [69]–[70], this material was not fresh and I declined to admit it.
29 [Decision under appeal], above n 2, at [114]. Ms Green had, at an urgent conference discussion about the issue, indicated her intention at that point to engage with the psychologist. However, the concern about further delay and the impact on the right of Jeremy to have a result regarding his care and contact arrangements within his timeframe (and the need for the parties to have resolution) resulted in the cancellation of the report such that the hearing could proceed on the date allocated.
30 At [189].
31 Care of Children Act 2014, s 132.
gave evidence at the hearing and were cross-examined.32 Relevantly, the Judge considered that “reality” was required around the section of the report pertaining to Mr Blue and his home environment and the evidence given. He noted that it was now “four years old” and the information obtained (largely from a visit to the home and discussions with relevant people) was somewhat isolated from the fuller assessment given by the other social worker.33
[81] The Judge referenced a report titled “Parenting Plans for Special Needs Children: Applying A Risk-Assessment Model” by Pickar and Kaufman.34 This report contains a section on autistic children and sets out factors for consideration in care arrangements for a child with disability, most likely to provide protection from harm. Recognising that Ms Green was Jeremy’s primary caregiver, the Judge synthesised some relevant factors (for Jeremy) from the report and applied them to Mr Blue in the “contact context”.35 In doing so, he particularly noted the need for vigilant supervision with the child’s functional capabilities; a positive match between parent and child temperaments enabling the parent to tolerate and manage child behaviours; and the ability of the parents to implement consistent structures and routines.
[82] Pragmatically, the Judge noted the impossibility of exactly replicating Jeremy’s arrangements when with his mother.36 He recorded that Mr Blue and Ms Brown were yet to experience any temperamental changes by Jeremy, but that inevitably they would do so if they moved to overnight contact.
[83] In respect of the relevant principles specified in s 5 of COCA the Judge concluded:
(a)Jeremy is not at risk of physical violence from either parent and that Mr Blue’s conviction of common assault arising from an incident in
32 One social worker wrote the section pertaining to Mr Blue and his home environment, the other social worker summarised care or protection records relevant to the parties and assessed Ms Green’s physical home environment.
33 [Decision under appeal], above n 2, at [197].
34 Family Court Review Volume 53 No 1 January 2015, at 113–133 (Australian).
35 [Decision under appeal] at [208]–[209].
36 At [209(b)].
August 2017 with Ms Green, does not translate into a risk that he might be violent to Jeremy himself. 37
(b)Ms Brown provides a significant layer of overall safety for Jeremy, in a situation where Mr Blue remains in a “fragile state” of long-term recovery and abstinence from drugs and alcohol. 38
(c)While Jeremy’s needs require a structured routine and primary home base, Mr Blue should be afforded the chance to make more of a contribution within the confines of a clear and continued schedule to which Jeremy can become accustomed to and understand. 39
(d)In Jeremy’s particular circumstances his cultural identity should be preserved and strengthened. His iwi connections (he is Māori on his father’s side) can be developed through time spent with his father and (paternal) grandmother. However, it cannot be achieved by a “cookie cutter” approach (by virtue of giving blocks of holiday contact only) as this would unduly challenge Jeremy and limit its benefit.40
[84] While determining that Jeremy would stay in the day-to-day care of Ms Green, these conclusions were reflected in the order made, with the Judge commenting that it was incumbent on Ms Green to ensure Jeremy sees his father as directed and that obstacles were not placed in the way.41
Approach to appeal
[85]This appeal is a general appeal under s 143 of COCA.
[86] As a general appeal, it is by way of rehearing.42 It is an appeal from an evaluative assessment of what is in the best interests of Jeremy, taking into account
37 At [211]–[212].
38 At [216] and [218].
39 At [220] and [223].
40 At [229]
41 At [233].
42 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
the applicable statutory principles in play.43 The onus is on an appellant to identify the respects in which the judgments under appeal are said to be in error and to persuade the appellate court to reach a different view. I may only interfere with the decision if I find it to be wrong. An appellate court will not intervene if no such error is identified.44
[87] Materially, the weight to be given to a Family Court decision is a matter for this Court, taking into account any advantages enjoyed by the Family Court and its specialist jurisdiction including its assessment of witnesses.45
Grounds of appeal
[88] The grounds of appeal in the second amended notice of appeal are wide-ranging and diffuse. I summarise them under the following heads:
(a)Safety, welfare and best interests of the child (ss 4, 5(a) and 5A of COCA).
(b)Breach of natural justice.
(c)Miscarriage of justice.
(d)Failure to take into account mandatory relevant considerations.
[89] Each category pleads multiple alleged inter-related errors which I describe in the analysis section of this judgment.
Statutory framework
[90]The COCA statutory framework provides for the decision-making at issue.
[91]Section 3 sets out the Act’s purpose in these terms:
3 Purpose of this Act
43 Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1.
44 Green v Green [2016] NZCA 486, [2017] 2 NZLR 321 at [30].
45 ARG v BKL [2019] NZHC 1514 at [5]–[7].
(1)The purpose of this Act is to—
(a)Promote children’s welfare and best interests, and facilitate their development, by helping to ensure that appropriate
arrangements are in place for their guardianship and care; and
(b)recognise certain rights of children.
(2)To that end, this Act—
(a)defines and regulates—
(i)parents’ duties, powers, rights, and responsibilities as guardians of their children:
(ii)parents’ powers to appoint guardians:
(iii)courts’ powers in relation to the guardianship and care of children:
(b)acknowledges the role that other family members may have in the care of children:
(c)respects children’s views and, in certain cases, recognises their consents (or refusals to consent) to medical procedures:
(d)encourages agreed arrangements for, and provides for the resolution of disputes about, the care of children:
(e)makes provision for enforcing orders internationally:
(f)implements in New Zealand law the Hague Convention on the Civil Aspects of International Child Abduction:
(g)reforms and replaces the Guardianship Act 1968 (including the Guardianship Amendment Act 1991).
[92] Section 4 provides that the welfare and best interests of the child in their particular circumstances must be the first and paramount consideration in any proceedings involving the role of providing day-to-day care for, or contact with, a child.46 The provisions direct that the Court must take into account any of relevant principles specified in s 5 in determining what serves the child’s welfare and best interests in his or her particular circumstances.47 This includes the conduct of the person who is seeking to have a role in bringing up the child to the extent that the
46 Care of Children Act 2004, s 4(1).
47 Section 4(2)(a)(ii).
conduct is relevant to the child’s welfare and best interests.48 Any other matters may be taken into account which are relevant to the child’s welfare and best interests.49
[93]Section 5 provides:
5 Principles relating to child’s welfare and best interests
The principles relating to a child’s welfare and best interests are that—
(a)a child’s safety must be protected and, in particular, a child must be protected from all forms of violence (as defined in sections 9(2), 10, and 11 of the Family Violence Act 2018) from all persons, including members of the child’s family, family group, whānau, hapū, and iwi:
(b)a child’s care, development, and upbringing should be primarily the responsibility of his or her parents and guardians:
(c)a child’s care, development, and upbringing should be facilitated by ongoing consultation and co-operation between his or her parents, guardians, and any other person having a role in his or her care under a parenting or guardianship order:
(d)a child should have continuity in his or her care, development, and upbringing:
(e)a child should continue to have a relationship with both of his or her parents, and that a child’s relationship with his or her family group, whānau, hapū, or iwi should be preserved and strengthened:
(f)a child’s identity (including, without limitation, his or her culture, language, and religious denomination and practice) should be preserved and strengthened:
(g)a child must be given reasonable opportunities to participate in any decision affecting them.
[94] The Court’s approach, when considering the s 5 principles, was considered by the Supreme Court in Kacem v Bashir.50 I adopt the Supreme Court’s summary of the primary principles to emerge from that case as follows:
48 Section 4(2)(b).
49 Section 4(4)(b).
50 Kacem v Bashir, above n 43, at [18].
(a)The welfare and best interests of the child is the first and paramount consideration.
(b)The Court must take into account, in a case-specific way, the s 5 principles that are relevant. The principles are not ranked and no one principle has greater weight than another.
(c)The focus must be on the particular child in his or her particular circumstances with no presumption of what the welfare and best interests require.
(d)The s 5 principles are not exhaustive of matters that may be relevant to the welfare and best interests of the child involved.
(e)The ultimate objective is to determine the outcome that would best serve the welfare and bests interests of the particular child in his or her particular circumstances. In making that determination, the s 5 principles must each be examined to see if they are relevant, and if they are, they must be taken into account along with any other relevant matters.
[95] Section 6 mandates that in these types of proceedings, the child must be given a reasonable opportunity to express their views on matters affecting them and any views that the child does express, either directly or through a representative, must be taken into account. Practical realities may make this a complex exercise, particularly with a child of Jeremy’s age in the environment where he is potentially subject to influences on his views.
Analysis
[96] I deal with the grounds of appeal in turn. As they are inter-related, I group the pleaded grounds by reference to the key s 5 principle — protection of the child’s safety.
Protection of child’s safety, welfare and best interests
[97] Mr Hayes, on behalf of Ms Green, submits that the Judge failed to properly assess Jeremy’s safety by finding that Ms Brown was a suitable person to monitor Mr Blue’s contact and in not making an explicit safety assessment of Jeremy’s father.51
[98] Mr Hayes submits that Kacem stands for two particularly relevant propositions in this appeal. First, that the individual principles in s 5 of COCA may have a greater or lesser significance in the decision-making process depending on the circumstances of an individual case. Secondly, that if (then) principle s 5(e) (now principle 5(a)) concerning the child’s safety is engaged, it is likely to have decisive weight, not because of any presumptive legal weighting but because of the crucial importance of protecting a child’s safety.
[99] Mr Hayes’ submission is anchored in the express requirement under s 5(a), that a child’s safety must be protected. In contrast, the principles in s 5(b) to (f) refer to should rather than must.
[100] Also relevant to the safety assessment is s 5A(2) of COCA, which provides that when taking into account the principle in s 5(a), the court must have regard to the existence of a protection order, the circumstances in which that order was made and any written reasons given by the Judge making the order.
[101] Under the first limb of the safety grounds advanced, Mr Hayes contends that Ms Brown has previously minimised, or denied or failed to report serious safety incidents on contact and therefore cannot be trusted to monitor contact in a way that ensures Jeremy’s safety.
[102] Ms Green has consistently challenged the suitability of Ms Brown, first in her role as supervisor of contact and now to monitor contact.52 After analysing the
51 Ground 1(a) and (b) of Second Amended Notice of Appeal dated 30 November 2023.
52 The Family Court had already determined on 2 May 2019 that Ms Brown is an appropriate person to supervise contact. [Green] v [Blue] [2019] NZFC 3318 at [9].
conflicting evidence about alleged incidents at contact visits or handovers, the Judge concluded:53
[218] In my assessment Ms [Brown]features as a significant layer of overall safety for [Jeremy]. Ms [Brown] has impressed the Court with her devotion to her mokopuna and the part played by her in ensuring contact has been able to proceed. Any suggestion by Ms [Green] that Ms [Brown] has a problematic criminal offending or Oranga Tamariki background rendering her an unsafe paternal whanau member for [Jeremy] is not accepted. As will be apparent from the tandem Family Violence Act 2018 decision regarding Ms [Green’s] application for a protection order against Ms [Brown], that application has not been made out and is dismissed. Ms [Green’s] accusations that Ms [Brown] has drug and alcohol issues are rejected.
[103] The Judge’s advantage from seeing and hearing the witness evidence cannot be underestimated. I find no basis on which to re-evaluate that evidence differently, nor do I find any error in the Judge’s assessment of the evidence as to the suitability of Ms Brown. It is apparent that where Ms Green’s narrative of events and perceptions conflicted with that of Ms Brown, the Judge preferred Ms Brown’s testimony. I am not prepared to interfere with that assessment. I therefore reject this ground of appeal.
[104] For the sake of completeness, I also reject the submission that the Judge disregarded previous directions that if it was found that incidents of family violence had occurred, Ms Brown was to be disqualified as supervisor of contact. The submission does not accurately capture the matter as recorded in the minute of the Judge S Otene, dated 15 January 2020. Rather, Judge Otene was summarising substantive matters falling for determination on the then current applications before the Family Court, one of which was “whether there had been any occurrences since 2 May 2019 as to disqualify Ms [Brown] as a contact supervisor”.54
[105] I further reject the submission that the Judge fell into error by failing to take into account that a protection order breach was established during a contact changeover under Ms Brown’s supervision, on 21 July 2019 at a McDonald’s carpark. The Judge referred to this incident and was satisfied that Ms Brown was inside the
53 [Decision under appeal], above n 2.
54 [Blue] v [Green] FC Te Awamutu FAM-2017-072-84, dated 15 January 2020. Minute of Judge S Otene following a submissions only hearing in respect of evidence relating to application to vary contact conditions as to supervision and venue.
premises with Jeremy when the incident occurred outside and played no part in encouraging Mr Blue’s behaviour. 55
[106] The second limb of the safety grounds advanced is the contention that the Judge did not adequately or properly assess the risk associated with Mr Blue.
[107] Mr Hayes submits that reliance on two s 132 reports by social workers was misplaced because the reports did not comply with brief of directions given by the Family Court on 14 February 2019.56 Further, the reports, dated April 2019, were out of date by the time of the hearing. (Ms Green’s application for updated reports prior to the hearing was declined by the Judge.57)
[108] Only a single, global s 132 report was prepared but comprised two separate report parts by two different social workers given the geographical separation between Ms Green and Mr Blue. Both parts recorded the terms of the brief on the first page of the report which included, as relevant, instruction to:58
(a)Set out the details and history of any criminal records for the parties, their partners and any other person living in the home.
(b)Set out the detail and history of any Family Violence Incident Reports that record any of the parties as victim, offender or complainant.
(c)Set out the detail and history of all notifications to the Ministry for Children — Oranga Tamariki including the outcome of any assessment or investigation.
(d)Assess the home environment of the respective parties. This includes partners and any other adult living in the home that may be present when the child is present in the home.
55 [Decision under appeal], above n 2, at [156].
56 [Green] v [Blue] FC Te Awamutu FAM-2017-072-84, dated 14 February 2019. (Minute of Judge S Otene).
57 [Green] v [Blue] FC Te Awamutu FAM-2017-072-84, dated 16 June 2023. (Minute of Judge D A Blair).
58 Judge Otene’s direction on 14 February 2019 was to provide a s 132 report “on the brief set out at paragraph 12 of [Lawyer for the Child’s] memorandum of 13 February 2019.”
(e)Assess whether there are any care and protection and/or risk issues for the child in the care of, or having contact with, the parties in regard to
(a) to (d) above.
[109] The report prepared in relation to Mr Blue did not refer to Criminal and Family Violence histories but noted that requests for these had been made and would be filed with the Court once processed. On 27 May 2019, Oranga Tamariki supplemented the social work report with the criminal and family violence history for Mr Blue and Ms Brown. Mr Blue’s conviction history was up to 15 March 2018 and noted the common assault conviction and two active charges— refusal to give blood specimen and careless driving.
[110] It is correct that the s 132 report was not a complete report and did not assess the impact of the criminal history records when they became available. But it is also clear that the primary purpose of the report from the social workers’ perspective was to assess the suitability of the home environment; one of the stated recommendations also being to give consideration to a psychological report of Jeremy.
[111] I am satisfied that the Judge was provided with complete criminal and traffic conviction histories at time of the hearing. He confirmed as much in his judgment.59 I am also satisfied that he was as well placed as the social workers to make his own assessment of the relevance in terms of Jeremy’s safety, and did so after hearing the views of the social workers upon presentation with the updating information.
[112] The updated list of Mr Blue’s convictions (capturing the most recent offending) was put to one of the social workers on cross-examination. The exchange with the Judge was as follows:
Court:2019. Five months home detention refusing to give blood specimen. Offence date 31 January 2019.
Witness:Oh it’s 2019 so I’m, I’m not sure what Mr [Blue’s] done with regard to his alcoholism since that date, it was four years ago so he may have progressed since then. I don’t know but with regard to the report and the information in the police history there would be concerns for [Jeremy] if Mr [Blue] was
59 At [176]–[177].
continuing to drink alcohol, or he wasn’t supervised by somebody like – if he wasn’t supervised by somebody at that time.
[113] In relation to expressed concerns for Jeremy in Mr Blue’s care, the social worker acknowledged on cross examination that such concerns would increase if Mr Blue was on active charges which had not been disclosed to her at the time. However, in relation to the updated (negligible) criminal history of Ms Brown, the social worker confirmed to the Judge that it would not have altered her assessment.
[114] The updating information available at the time of the hearing also recorded a number of reported family harm incidents at the home of Ms Brown and Mr Blue. In relation to the most recent occurrences in 2016, the social worker stated that if she had that information before visiting the family home, she would have asked about them. The incidents were put to Ms Brown, who explained that they involved a partner of another of Ms Brown’s children and was properly dealt with. The Judge was satisfied that Ms Brown had acted appropriately to ensure those issues stopped.60
[115] Relatedly, a s 131A report was also provided to the Court in March 2023.61 That report noted two reports of concern made to Oranga Tamariki, dated December 2021 and September 2022, relating to Jeremy whilst in the care of his father. In both instances, social worker assessment did not find any abuse. In one instance, an evidential interview protocol was completed but Jeremy made no disclosures about the alleged incident.
[116] I am satisfied that the gaps in information in the s 132 report were addressed at the hearing by the Judge and social workers, therefore Mr Hayes’ sufficiency challenge is not accepted. Further, the fact that the updated criminal history and family harm incident reports were not provided to Ms Green (who was self-represented at the hearing and deposes that she did not receive the full criminal
60 [Decision under appeal], above n 2, at [196].
61 Under s 131A of the Act a Registrar may on their own initiative request the Chief Executive of Oranga Tamariki to provide brief written advice on the nature and extent of any involvement with the parties for the purpose of expediting an application for, among other things, a parenting order.
conviction report), does not mean that the Judge was unaware of the additional history.
The record says otherwise.62
[117] However, Jeremy’s age and developmental stage, the issues in this case and the volatile nature of alcoholism generally, mean that the age of the s 132 report is troubling.
[118] I have considered whether the age of the reports on which the Family Court relied undermined their cogency and reliability to such an extent that they led to an erroneous conclusion. From a common sense perspective, the care needs and wellbeing of a child of Jeremy’s age will not be static. Up-to-date information is important. At first blush, the period between the s 132 social worker reports and the hearing mean that the better course would have been to direct updated reports. However, when seen against the backdrop of all that had occurred in this proceeding and the reasons for the information gaps, the course taken by the Judge is not only explicable but the only appropriate response. I find no error in his assessment and conclusion.
[119] Mr Hayes submits that there was insufficient evidence about Mr Blue’s medical condition associated with his alcoholism and the risk of relapse. He notes that Mr Blue had not complied with earlier directions requiring alcohol/drug testing. Those directions were made by Judge Collin on 7 September 2021.63 They included that Mr Blue fully disclose his current medical situation though a GP or specialist and:
Provide a fingernail test for alcohol and drugs for a 12 month period. This is to be provided by 30 October. The result is to be sent from the testing agency directly to [counsel] who is to file it attached to a memorandum addressed to the Court.
If Mr [Blue] declines to comply the Court may draw an inference. If there is any issue regarding the reliability of the test this can be the subject of expert evidence.
[120] Mr Blue’s explanation for failing to comply with these directions was that his lawyer made enquiries of a Court approved drug testing agency, which advised it does
62 Ms Green says that she did not have the opportunity to cross-examine Mr Blue on the basis of the updated information but that would have served little point.
63 [Green] v [Blue] FC Te Awamutu FAM-2017-072-84, 7 September 2021 at [4].
not undertake such testing due to the absence of established testing standards and a proficiency testing programme providing external oversight. He expressed concern about the risk of infection given he works outside. He deposed that he was willing to undertake a hair strand drug test but, at that time (October 2021), needed to wait for sufficient hair growth given he shaves his head. Neither explanation is particularly cogent.
[121] The Judge was however alive to the practical risk of relapse and the risk this would present to “unsupervised contact”. He found there was no evidential basis for ongoing concerns about Mr Blue’s perceived illegal drug use despite his lack of transparency with his mother about prior drug use.64 He concluded that Mr Blue is not “out of the woods” with his recovery and that it would be naïve to think that a risk of relapse might not then present a risk to Jeremy.65
[122] The Judge examined Ms Green’s allegations about Mr Blue dating from 2017, and which led to a final protection order in her favour on 15 November 2017.66 He noted that Mr Blue was convicted of common assault (on 12 August 2017) against Ms Green and sentenced to supervision for one year.67
[123] In respect of her description of being “kidnapped” following Ms Brown’s refusal of her request to turn the car around (to take her back home) when on a visit to Mr Blue in late 2017, the Judge essentially said that this was an “inflammatory” overstatement given the evidence that Ms Green was considering a reconciliation a few months later.68
[124] Ms Green made other allegations about drug use by Mr Blue and Ms Brown during supervised contact visits. The Judge determined that Ms Green had no basis whatsoever to make such allegations against Ms Brown and no evidential basis to make the same assertions against Mr Blue.69
64 [Decision under appeal], above n 2, at [215].
65 At [216].
66 At [119].
67 At [128].
68 At [122].
69 At [129].
[125] There is no doubt that contact between Ms Green and Mr Blue was volatile in the period from March 2018 to at least December 2018. Some talk of reconciliation and a possible move to Whangārei marred by abusive texting from Mr Blue. Mr Blue explains this was due to his relapse into alcoholism despite his rehabilitative efforts.
[126] The Judge recounted other incidents described by Ms Green in alarming terms and denied by Ms Bell in similarly emphatic terms. The divergence in the respective narratives is palpable. As noted above at [103], where Ms Green’s narrative of events and perceptions conflicted with that of Ms Brown, the Judge preferred Ms Brown’s testimony.70
[127] The Judge recorded Mr Blue’s conviction for breach of the protection order in July 2019, which consisted of holding a phone in a filming manner and staring at Ms Green at a contact changeover location. He considered that this conviction, along with Mr Blue’s earlier conviction of common assault arising from the August 2017 incident with Ms Green, does not translate into a risk that Mr Blue might be violent to Jeremy himself.71
[128] Having recognised the risk of relapse by Mr Blue, the Judge was satisfied that monitoring by Ms Brown mitigated that risk sufficiently, but that Mr Blue’s risk factors will be reflected in his ongoing time with Jeremy.72 The fact that Mr Blue has maintained his distance from Ms Green for the past four years was material in the Judge’s consideration.
[129] Although pleaded under the separate head of breach of natural justice, three sub-grounds of appeal bear on the safety assessment and so I deal with them under this head.73 The nub of these grounds is a challenge to pre-trial rulings as to admissibility of evidence in the guise of natural justice concerns.74
70 Illustratively at [154] where the Judge said “Ms [Green’s] allegation that Ms Brown had intentionally locked her in the car cannot be made out. There is a significant conflict between Ms [Green’s] affidavit advice… with the concession at the hearing about not having seen any locking occur.”
71 At [212].
72 At [216].
73 Ground 2(e), (i) and (l) of Second Amended Notice of Appeal dated 30 November 2023.74 These rulings are recorded in the minute of Judge D A Blair dated 16 June 2023. See [Green] v [Blue] FC Te Awamutu FAM-2017-072-84, dated 16 June 2023.
[130] First, Mr Hayes submits that the Judge did not allow Ms Green to obtain affidavits from doctors treating Mr Blue at the time of his hospitalisation in 2020 when on a contact visit with Jeremy. This was dealt with in a pre-trial conference less than one month before the scheduled substantive hearing. The Judge recorded Ms Green’s concern about a lack of medical records relating to Mr Blue’s previous hospital admission and her wish to have medical personnel attend. The Judge directed this was not practicable having regard to the timeframe and the lack of formal application for witness summons. However, he recommended that Mr Blue’s counsel make an urgent request for further medical notes and place those into evidence. He recorded that if the Court is left with a lack of information and questions around the hospital admission, that could potentially be adverse to Mr Blue in the assessment of safety factors.75
[131] Second, Ms Green sought to require attendance of another witness at the hearing, which the Judge also refused on the basis that the witness statement previously supplied had no evidential value, the witness was now hostile to Ms Green’s case and there would not be a “late summonsing” of such person.76 I note that the statement previously supplied was not made on oath and on condition that it not be shown to Mr Blue or Ms Brown.
[132] There is no discernible basis to challenge either of these pre-trial directions and I dismiss these grounds of appeal.
[133] Finally, Mr Hayes refers to evidence filed by Ms Green on 15 June 2023, which was not admitted into evidence. This evidence was said to include Facebook posts by Mr Blue. The evidence required leave because it was outside the timetabling directions made by the Court. The Judge declined leave on the basis the affidavit sought to reanalyse past progression of the proceedings, frame the legal issues for hearing, supplement past accusations or concerns, set out legal argument, present hearsay commentary and opinion, and challenge a previous Court direction for a s 133 report.77
75 At [10].
76 At [11].
77 At [7].
[134] There are no cogent grounds advanced to support the submission that the proposed evidence is relevant, probative and ought not have been excluded. Nor is the issue squarely before the Court. I dismiss this ground of appeal.
Process challenges
[135] Mr Hayes submits that Ms Green did not have the opportunity to obtain legal representation or advice for the hearing because lawyers were not prepared to take on a case with such a long history. She claims that this was raised at a conference before Judge Blair on 27 June 2024, and refers to the minute issued by the Judge on 28 June 2024.78 I reject this submission. I am not persuaded that there was any miscarriage of justice. First, Ms Green has had more than seven different legal counsel representing her over the course of these legal proceedings. There is no explanation in the evidence as to why those engagements ceased.
[136] Secondly, there is no mention in that minute of a request by Ms Green for adjournment due to a lack of legal counsel. The focus of the conference (and minute) is on the absence of a s 133 report. The conference was convened when the Judge learned that a s 133 report would not be available because of a “lack of consent” or engagement by Ms Green, hindering assessment of Jeremy. The Judge was concerned whether the hearing should continue in the absence of such a report.
[137] Mr Blue’s counsel wanted to ensure the hearing proceeded. Ms Green sought an adjournment and indicated she would engage with the s 133 report writer after all. The minute recording the telephone conference is instructive and I reproduce the material parts:
[7] A s 133 psychological report was first directed on 23 December 2021, now one and a half years ago. Psychologist Ms Dunne was appointed but quickly declined the referral as a result of Ms [Green’s] response. It was noted in paragraph 47 of my interlocutory decision dated 21 March 2023, Ms [Green] had emailed Ms Dunne telling Ms Duune [sic] she would to [sic] summons her into the High Court upon Judicial Review “if you take one step in attempting to prepare a s 133 report based on contact proposals.”
[8] On 1 June 2022 the direction for the s 133 report was reconfirmed and Dr Calvert was appointed. By August 2022 Dr Calvert was already experiencing difficulties making contact with Ms [Green]. Going into 2023 it
78 [Green] v [Blue] FC Hamilton FAM-2017-072-84, dated 28 June 2023.
is my understanding Dr Calvert was able to see Mr [Blue] and [Jeremy] together during a contact visit.
[9] For present purposes I had given preliminary consideration to whether Dr Calvert should be summonsed to appear at the hearing next week regardless of whether she felt able to write a report. This would be given Dr Calvert might have some level of information available about her meeting with Mr [Blue] and [Jeremy]. However, without any in depth analysis of [Jeremy], there could be a superficiality in that limited observational information from one visit and a reluctance by the psychologist to express any expert opinion. With reference to s 25(1) Evidence Act 2006 an opinion by an expert is admissible if the fact-finder is likely to obtain substantial help from the opinion in understanding other evidence in the proceeding or in ascertaining any fact that is of consequence to the determination of the proceeding. In my assessment what Dr Calvert might be able to offer if summonsed to hearing given the limitations upon what she has been able to do, would not be likely to provide the Court with substantial help.
[138] As a result, there was no individualised assessment of Jeremy and the Judge had to resort to academic writings on the subject of children on the autism spectrum.79 Neither was Jeremy interviewed. I considered afresh whether an interview with Jeremy would be appropriate but, like the Family Court Judge, I felt that at his age and with his complex needs, any interview ought to be carried out by a specialist to minimise the risk of traumatising Jeremy. While this is a matter for the Family Court, I would like to see some way in which Jeremy’s voice, not filtered through either parent, could be heard in a manner appropriate to his age and diagnosis.
[139] While the lack of individualised assessment was unfortunate, the reasons for it were explained in the judgment. Ms Green must take responsibility for that, and I agree with the Family Court Judge that the time had come for a decision.
[140] Mr Hayes highlights Ms Green’s claims that she was denied fair opportunity to cross-examine Ms Brown due to the time limit set by minute of Judge Blair on 3 July 202380 and that at the hearing the Judge continually and unfairly interrupted her cross-examination of one of the social workers.81
[141] In his minute, the Judge explained that Rule 416ZF of the Family Court Rules 2002 limits cross-examination time in COCA hearings but that in a long cause
79 [Decision under appeal], above n 2, at [21].
80 [Green] v [Blue] FC Te Awamutu FAM-2017-072-84, dated 3 July 2023.
81 Ground 3(h) and (k) of Second Amended Notice of Appeal dated 30 November 2023.
fixture such as this case, those limitations are not relevant and need to be extended. He then went on to set cross-examination times that balanced “providing reasonable cross-examination time” versus “running the risk of too much time being spent and the hearing not concluding within available time.” Instead of 40 minutes per witness cross-examined, he allocated three hours — a substantial increase.
[142] In respect of Ms Green’s assertions of unfair interruption, I have reviewed the Notes of Evidence and find no error or unfairness. His interruptions related, in the main, to clarifications aimed at enabling the witness to refer to the correct reports when in making their response, along with various warnings to Ms Green in regard to refraining from giving evidence through cross-examination.
[143]Accordingly, I dismiss these grounds of appeal.
A change in circumstances warranting intervention?
[144] Relatedly, I had concerns about whether there had been a change in circumstances since the Parenting Order was made by Judge Blair. This relates to the assertions by Ms Green that Jeremy is not able to cope with increased contact. That prompted my proposal to obtain a specialist report. I consider that this Court may make any order it considers should have been made in the Family Court based on the evidence before this Court. This must be the case because the welfare of the child is the paramount consideration under the Act. I take comfort from the observations of Heath J in Henderson v Morgan (No 3) [Relocation] in this regard.82 However, in the absence of corroborated or independent evidence, I have, after much reflection, decided that this is not the appropriate forum to attempt to tailor a different contact regime on inadequate evidence and in the absence of error in the judgment under appeal. Rather, that must be for the Family Court on the application for leave to vary or subsequent application to vary.
[145] In sum, I find no identified error in the Judge’s decision. On the contrary, the Judge recognised the principle in s 5(e) of COCA requiring that decisions should promote that a child has continuing relationships with both parents and their
82 Henderson v Morgan (No 3) [Relocation] [2013] NZHC 1957 at [12].
whānau/family groups. This implicitly recognises the United Nations Convention on Rights of the Child.83 Further, the Judge acknowledged the importance of Ms Brown’s role in ensuring a meaningful and safe experience when it comes to Jeremy’s paternal visits. Having myself assessed the merits of the case, I am not satisfied that this Court should come to a different decision to that reached by the Judge. On the contrary, I agree with his careful assessment.
Costs order relating to common bundle preparation
[146] In conjunction with the Parenting Order, the Judge directed Ms Green to pay half the fee for the common bundle presented in Court.84 Mr Hayes submits that she has no means to do so. There is no detailed evidence about means. I am not aware of Ms Green’s legal aid status. Accordingly, I defer this question until issues of costs arise in relation to this appeal.
Result
[147]It follows that the appeal is dismissed.
Costs
[148] I did not hear the parties on costs. If the position on costs is not agreed, memoranda may be filed within 20 working days of this judgment, with replies within a further 10 working days. Memoranda should be no longer than five pages. I will deal with costs questions which might arise on the papers but urge the parties to resolve these matters by agreement to enable focus on Jeremy’s care and well-being and support mechanisms for Ms Green, who shoulders the primary responsibility for Jeremy’s care.
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Walker J
83 United Nations Convention on the Rights of the Child 1577 UNTS 3, arts 7 and 18. (Opened for signature 20 November 1989, entered into force 2 September 1990. New Zealand ratified the Convention on the Rights of the Child on 6 April 1993.)
84 [Decision under appeal], above n 2, at [250].
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