Hammond v Hammond
[2013] NZHC 2545
•30 September 2013
NOTE: ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO 11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE COURT/LEGISLATION/RESTRICTIONS-ON-PUBLICATIONS.
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV 2013-404-001236
[2013] NZHC 2545
BETWEEN G E HAMMOND
Appellant
AND
A J HAMMOND
Respondent
| Hearing: | 16 July 2013 |
Appearances: | Appellant in Person J M Irving for the Respondent |
Judgment: | 30 September 2013 |
JUDGMENT OF GILBERT J
This judgment was delivered by me on 30 September 2013 at 4.30 pm Pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date:
G E HAMMOND v A J HAMMOND [2013] NZHC 2545 [30 September 2013]
Introduction
[1] Mr Hammond1 appeals against the decision of Judge J G Adams given on 8 February 2013 in the Family Court at Auckland:
(a)refusing to make orders allowing him care or contact with his daughters, Geraldine and Lisa, now aged 16 and 12 respectively;
(b)refusing to direct that the parties and the children attend counselling to facilitate such care or contact; and
(c)refusing to make an order directing an end to Lisa’s home schooling education.
[2] Mr Hammond also makes an informal application for judicial review of the decision on numerous grounds.2
[3] Mr Hammond no longer pursues his appeal in respect of Geraldine given that she is now 16.
[4] Apart from one meeting in 2010, Mr Hammond has not seen Lisa since the parties ceased living together in 2008. Mr Hammond accepts the Judge’s finding that both girls are “enmeshed” with their mother and alienated from him. Ms Cobcroft, lawyer for the children, confirms that both girls are adamantly opposed to having any contact with him. Lisa said that she would feel scared, frightened and ‘really unsafe’ if she had to have contact with him.
[5] In these circumstances, Mr Hammond abandoned his attempt to disturb the current care arrangements for Lisa. However, he feels aggrieved that it took as long as it did for his application to be heard in the Family Court. He considers that the delay contributed to the alienation of his daughters from him. He is hopeful that in
1 This is not the appellant’s real name. Pseudonyms have been used for the appellant, the respondent and their children throughout this judgment to comply with ss 11B to 11D of the Family Courts Act 1980 because the judgment refers to persons under the age of 18 years.
2 Mr Hammond did not file a formal application for judicial review. However, his claim was incorporated in his “detailed points of appeal and statement of claim seeking judicial review” dated 23 April 2013, filed in accordance with a direction made by Cooper J on 9 April 2013.
time they will appreciate the efforts he has made to contribute to their upbringing as a loving father. This is part of his motivation for pursuing his appeal and application for judicial review.
Relief now sought
[6] Mr Hammond now seeks the following relief:3
(a)A declaration against the Family Court for abetting the alienation by delaying for 26 months before hearing his application seeking contact with his children.
(b)An order substituting the order made in the Family Court directing the parties and Lisa to attend therapy at the shared cost of the parties, with an order that Lisa will remain in the day to day care of Mrs Hammond as long as there is compliance with the direction.
(c)An order requiring Mrs Hammond to enter into a bond of $1,000 to ensure compliance with the Court’s orders.
(d)An order requiring Mrs Hammond to comply with s 16(5) of the Care of Children Act 2004 which requires that in exercising (or continuing to exercise) the duties, powers, rights and responsibilities of a guardian in relation to a child, a guardian of the child must act jointly (in particular, by consulting wherever practicable with the aim of securing agreement) with any other guardians of the child.
(e)Orders addressing those aspects of Mr Hammond’s application on guardianship matters which the learned Judge ignored, being his application for costs against Mrs Hammond for failing to prosecute her application to strike out his application to have contact with his children; his application for directions to enable him to open
3 The lack of any formal pleading has created the difficulty that the precise form of relief sought by Mr Hammond has changed over time. The relief I have set out in this paragraph of the judgment is taken from the submissions filed by Mr Hammond on the day of the hearing.
KiwiSaver accounts for the children; and his application for an order requiring the resumption of orthodontic treatment for both children.
[7] Mr Hammond also sought an order for the cessation of home schooling for Lisa. This was resolved by Mrs Hammond giving an undertaking to the Court that Lisa will attend a State school from the beginning of 2014.
Alleged procedural and factual errors
[8] Mr Hammond presented detailed submissions criticising various aspects of the process followed in the Family Court and challenging the validity of a number of the Judge’s factual findings. For the reasons which follow, I do not consider that any of these alleged errors are relevant to the issues I have to decide on this appeal now that Mr Hammond has narrowed the scope of relief he seeks. In saying this, I do not intend any criticism of Mr Hammond. On the contrary, in my view, his decision to abandon his attempt to disturb the current care and contact arrangements is a sensible one in all of the circumstances and reflects well on him.
Alleged pre-determination
[9] Mr Hammond considers that the Judge pre-determined the contact issue. He points out that very early in the hearing the Judge stated:4
Not for the purpose of cutting any options out, I think that it may be useful for me to indicate quite openly to all counsel, that I think that a contact order in respect of either girl is very problematic. So I think that the choice as it currently looms, might be either to leave either or both girls untroubled by the consequences of their relationship with their father or to consider a change of primary care, at least for a time.
[10] A short time later the Judge stated:
I think that a contact provision would create short term risk, with little prospect of long term benefit for anybody.
[11] Mr Hammond says that the Judge never resiled from this position and he believes that the Judge pre-determined the issue and failed to keep an open mind. I
4 Transcript at 3.
can understand Mr Hammond’s concern but I am confident that it is misplaced. It is likely that the Judge had read enough of the materials before the hearing commenced to understand the very difficult issues he was going to have to deal with. There was nothing improper about the Judge identifying his preliminary concerns. On the contrary, this provided counsel on both sides the opportunity to address these through their questioning of the witnesses and in their submissions. In any event, nothing turns on this issue for the purposes of this appeal because it is not relevant to any aspect of the relief now sought.
Admissibility of affidavit from Mrs Hammond’s father
[12] Mr Hammond’s next criticism is that the Judge should not have allowed counsel for Mrs Hammond to introduce into evidence an affidavit from Mrs Hammond’s father which had been prepared for the purposes of Mrs Hammond’s earlier application for a protection order. This affidavit, which was not in the trial bundles, was put to Mr Hammond during cross-examination and produced at that stage despite opposition from Mr Hammond’s counsel.
[13] Mr Hammond says that the Judge should not have admitted this affidavit into evidence because the deponent did not attend Court for cross-examination. He says that Judge L J Ryan was not prepared to consider the affidavit for this reason when he dealt with the application for a protection order. Mr Hammond says that Judge Adams should have similarly disregarded this affidavit because of r 169(4) of the Family Courts Rules 2002 which provides:
If the deponent does not attend the hearing, the deponent's affidavit may not be used as evidence by any party, except by the leave of the court.
[14] Nothing said by Mrs Hammond’s father in his affidavit is relevant to the relief now sought in this appeal and I therefore do not need to determine this issue.
Judicial interviews with the children
[15] Another procedural issue raised by Mr Hammond concerns the interviews the Judge conducted with the children. Mr Hammond makes two points about these interviews. First, he argues that the Judge should not have interviewed Lisa in the
presence of her older sister. Second, he submits that the Judge should have made transcripts of the interview available to the parties. Mr Hammond refers in particular to the observations of Rodney Hansen J in A D v K T:5
[61] It is plainly desirable that the approach of the Family Court be standardised. I add my voice to those who favour the recording of any interview. I consider the interests of natural justice weigh heavily towards disclosure. Any views expressed by the child to the Judge are an integral and vital part of the process. In cases such as the present, they may be of pivotal importance. Both for the purpose of the hearing itself and certainly for the purpose of an appeal, what was said should be open to examination.
[62] The fact that the interview is conducted privately is not, in my view, a sufficient reason to shield it from later scrutiny. A private interview helps to avoid unnecessary stress on children and facilitates a frank expression of their views. It is not for the purpose of keeping what they have said under wraps. Any concerns about confidentiality can, in any event, be met by an explanation to the child of the use that may be made of the interview in terms appropriate to his or her level of understanding.
[16] I accept the validity of Mr Hammond’s complaints about this part of the process but they have no relevance to the issues remaining for consideration on this appeal.
Factual findings made by another Judge
[17] Mr Hammond complains that Judge Adams wrongly recorded that Judge L J Ryan had found that Mr Hammond had insisted on oral sex with Mrs Hammond against her wishes.6 This is a legitimate complaint as Judge Ryan
made no such determination. He stated:7
I am not sure about the incident of oral sex as this may somehow be connected with what the mental health professionals were describing as OCD.
[18] However, while this error is unfortunate and distressing, it has no bearing on the limited issues I now have to decide on this appeal.
5 A D v K T [2008] NZFLR 761.
6 When determining an application by Mrs Hammond for a protection order.
7 AJH v GEH FC North Shore FAM 2008-092-1117, 15 December 2008 at [55].
[19] Mr Hammond’s next complaint concerns an incident at a McDonald’s restaurant in 2007. The Judge quoted from Dr Blackwell’s report which recounted what Geraldine had told her about this incident.8 The Judge took this incident into
account in his assessment of Mr Hammond’s parenting skills:9
This story is instructive. Rather than trusting the parent who was in direct control of the children to make arrangements, Mrs Hammond saw fit to dictate to him what he should do. The children thought Mr Hammond was answerable to their mother as if she were his parent as well. As if he were a younger sibling, they would report on him to their mother on occasions when he had been left in charge of them. The story also indicates Mr Hammond’s inability to manage opposition from the children in the mall.
[20] Mr Hammond complains that the Judge did not refer to or consider the quite different account of this incident that he gave in an affidavit prepared for the purposes of the domestic violence proceedings. While I can understand Mr Hammond’s concern that his version of events seems not to have been considered, the issue is not relevant to this appeal now that the current care and contact arrangements are no longer challenged.
Timing of fork incident
[21] Mr Hammond also points out that the Judge made an error about the timing of an incident in which Geraldine threw a fork that hit Lisa on the head. The Judge described this incident as having occurred “a couple of months ago” whereas Mr Hammond says that the evidence shows that it occurred in 2010, not 2012. Mr Hammond accepts that this error is not material but he claims that it indicates that the Judge did not take sufficient care in addressing the facts in their proper sequence. There is no significance in this minor error. It is certainly not relevant to any issue raised in the appeal.
8 At [26].
9 At [27].
[22] The Judge found that Mr Hammond “tends to act impulsively, sometimes angrily and then apologises and retreats” and that he is likely to behave like that with Lisa.10 Mr Hammond says that he has changed from the time he was assessed by Dr Blackwell five years ago and that:
I will not apologise, and I will not retreat from my desire to be my daughters’ father. And I have not done so since this most recent application was filed in September 2010 and I will keep on going until I run out of Courts to appeal to if I must. My daughters will grow up knowing that I never gave up or retreated again or apologised for doing so. I am not angry. I am passed that.
[23] I can appreciate Mr Hammond’s concern that the Judge’s finding was at least partly based on historical information. However, I do not need to address this issue because it is no longer relevant given the limited relief Mr Hammond now seeks.
Finding that Mr Hammond is “explosive”
[24] Next, Mr Hammond disputes the Judge’s assessment that he is “explosive”. He says that this is an unfair assessment of his current behaviour and was improperly based on Mrs Hammond’s account of two incidents that occurred some 25 years ago.
After quoting from Mrs Hammond’s affidavit concerning these incidents, the Judge stated:11
The quoted portion demonstrates two features that line up with my assessment of the parties. Firstly, Mrs Hammond has tended to be hysterical. Secondly, she is capable of putting on a significant performance (in that case with a view to impressing on Mr Hammond just how upsetting his behaviour was, because she was demonstrating palpable upset). Thirdly, that Mr Hammond can be explosive. Fourthly, he can be reactive.
[25] I can understand why Mr Hammond would have been distressed to read in the judgment that he can be “explosive”. However, I do not need to address this issue because it is not relevant to the relief Mr Hammond now seeks in this appeal.
10 At [106].
11 At [19].
[26] Mr Hammond also complains about the Judge’s finding that he “was heavily engaged with work from the time they had children” and that Mrs Hammond dominated the parental relationship.12 Mr Hammond says that this finding was based on assertions made by Mrs Hammond and cross-examination of other witnesses. He says that he was not questioned about this subject and was not given the opportunity
to reply. Mr Hammond says that, in fact, he declined promotion because it would have involved frequent travel and other commitments that would have compromised his ability to spend time with his family.
[27] Given that the existing contact and care arrangements are not challenged, it is irrelevant whether or not Mr Hammond was heavily engaged with work at that time as found by the Judge. I therefore do not need to consider this issue.
Agency
[28] The Judge considered that Mr Hammond had demonstrated parenting skills in the way he had dealt with his partner’s autistic son. However, he tempered this observation by noting that Mr Hammond was not obliged to have the agency of parenthood in respect of him:13
I think Mr Hammond has demonstrated a level of skill in dealing with the 20 year old young man in his present home but he is not obliged to have the agency of parenthood in respect of the young man. If Lisa were in his sole care, he would have to make the calls and I am not satisfied that he would manage the position satisfactorily.
[29] Mr Hammond points out that he adopted the daughter of his first wife. He says that he would have adopted his present partner’s son had he not been too old for adoption. He sponsors the education of two young girls, one in South Auckland and the other in Africa. He also has a long record of service to New Zealand through his employment. All of this leads him to ask in his submissions:
If this is not having a sense of agency will someone please tell [me] what is?
12 At [23].
13 At [103].
[30] I have no reason to doubt what Mr Hammond says but, again, it is not relevant to the issues I have to decide.
[31] I turn to the issues raised by Mr Hammond which are relevant to the relief he now seeks.
Is Mr Hammond entitled to a declaration against the Family Court for abetting the alienation of his children from him?
[32] The Judge clearly considered that his options were limited because over four years had passed since the parties separated and all contact between Mr Hammond and his daughters ceased:14
Had this matter come before me four years ago, I doubt that I would have hesitated long before taking decisive action, but Lisa is no longer seven years old, she has had quite enough trauma, and I believed that the recovery of a greeting and speaking relationship with her father would be insufficient reward for the confusion that she would undergo. Dr Blackwell holds a similar view.
[33] Mr Hammond must accept responsibility for the delay from separation in mid-2008 until he filed his care and contact application in September 2010. While it is unfortunate that the application was not heard until November 2012, I do not have sufficient information to determine responsibility for that delay and it would be quite inappropriate for me to attempt to do so in the context of such an informal application with no statement of claim or supporting evidence.
[34] The delay prior to the hearing does not provide any basis for appeal nor could it justify Mr Hammond’s application for a declaration that the Family Court abetted his alienation from his children. In any event, no useful purpose would be served by granting the relief Mr Hammond now seeks, even if there had been a proper basis for it.
[35] For these reasons, this aspect of Mr Hammond’s appeal and application for judicial review must be dismissed.
14 At [101].
[36] Mr Hammond appeals against the Judge’s refusal to direct the parties and the children to attend counselling to facilitate care or contact. This ground of appeal falls away now that Mr Hammond is no longer seeking orders for care or contact. Self- evidently, counselling to facilitate this is not required.
Should Mrs Hammond be required to post a bond?
[37] Mr Hammond did not appeal against the Judge’s refusal to require Mrs Hammond to enter into a bond to secure her compliance with the Court’s orders. Mr Hammond cannot overcome his failure to appeal this aspect of the judgment through his informal application for judicial review.
[38] In any event, the proposed bond was to secure compliance with any order requiring Mrs Hammond to facilitate contact between the children and Mr Hammond. This is no longer an issue.
Was the Judge wrong not to order Mrs Hammond to comply with s 16(5) of the Act?
[39] Mr and Mrs Hammond obtained consent orders in the Family Court in February 2010. One of these orders was as follows:
The parties shall consult with one another in respect to the standard guardianship obligations pursuant to the Care of Children Act 2004.
[40] Mr Hammond successfully applied to set aside all but two of the orders that were made by consent in February 2010, including this order.15
[41] This issue was not raised by Mr Hammond in his notice of appeal. Nor did he raise it in his detailed points of appeal and statement of claim seeking judicial review. In these circumstances, I have no jurisdiction to consider the matter. In any event, there is no need for a Court order. Section 16(5) of the Act imposes obligations on guardians which Mr and Mrs Hammond must both comply with:
15 GEH v The Family Court at North Shore [2012] NZFLR 242 (HC).
However, in exercising (or continuing to exercise) the duties, powers, rights, and responsibilities of a guardian in relation to a child, a guardian of the child must act jointly (in particular, by consulting wherever practicable with the aim of securing agreement) with any other guardians of the child.
Was the Judge wrong not to award Mr Hammond costs on the strike out application?
[42] On 15 November 2010, Mrs Hammond filed an interlocutory application to dismiss Mr Hammond’s substantive application seeking to vary the parenting orders made by consent on 3 February 2010. Mrs Hammond’s application was made on the grounds that the continuation of the proceedings was contrary to the welfare and best interests of the children.
[43] On 15 March 2012, Mr Hammond applied for an order dismissing Mrs Hammond’s application. He also sought an order for costs in relation to it. It appears that Mr Hammond’s application for costs on the strike out application, which did not proceed to a hearing, was not before the Judge and has not been dealt with.
[44] Mr Hammond did not appeal against this aspect of the judgment, nor could he do so. However, in his detailed points of appeal and statement of claim seeking judicial review, he complained that the Judge ignored his application for costs against Mrs Hammond for failing to prosecute her application to strike out his application for care and contact. There is no basis for this criticism because the Judge was not asked to determine this application. The proper course is for Mr Hammond to seek a determination of the outstanding costs issue in the Family Court.
Was the Judge wrong not to order Mrs Hammond to provide information to Mr Hammond to enable him to open KiwiSaver accounts for the children?
[45] The Judge did not refer to this issue in his judgment. However, it is clear that the Judge was not prepared to make any such order. When Mrs Hammond was cross-examined on this issue, the Judge said:16
Is there any point of pursuing this, because he has worked hard to ensure that he pays the very minimum possible and in that context and in the parenting
16 Transcript at 392.
context generally before the parenting context at all, it seems to me to be something that this witness would quite rightly take offence at, to say, “Well, I’m paying you very little child support, but look, I’ve got heaps of money available to slosh around in the luxury of the KiwiSaver”.
[46] I am not persuaded that the Judge was wrong not to make such an order in the circumstances of this case.
Was the Judge wrong not to order Mrs Hammond to resume orthodontic treatment for the children?
[47] The Judge did not refer to this issue in his judgment either. However, the same reasoning would apply. I am not persuaded that the Judge was wrong not to order Mrs Hammond to arrange further orthodontic treatment for the children.
Result
[48] The appeal is dismissed.
[49] The informal application for judicial review is also dismissed.
[50] Any application for costs is to be made by memorandum to be filed and served within14 days of the date of this judgment. Any memorandum in response is to be filed and served within 14 days thereafter.
M A Gilbert J
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