J v HC Rotorua Ap41/01

[2001] NZHC 764

IN THE HIGH COURT OF NEW ZEALAND
ROTORUA REGISTRY AP41/01

BETWEEN J
Applicant

AND V
Respondent

Hearing: 20 August 2001

Counsel: Applicant in person
B Hawes for Respondent

Judgment: 20 August 2001

ORAL JUDGMENT OF RANDERSON J

Solicitors:
Walker and Elliott, P O Box 1786, Rotorua

Introduction

[1] This is an application for leave to appeal under s 31(3)(b) of the Guardianship Act 1968 against a decision of Whitehead DCJ given in the Family Court at Taupo on 30 March 2001. The notice of appeal as originally filed and the application for leave to appeal were filed on 21 May 2001, the 28 day time limit under s 31(3)(a) of the Guardianship Act having expired on 28 April.

Background

[2] The background to the decision in the Family Court is quite extensive. The applicant and the respondent are the parents of a male child born on 6 December 1992. Following the separation of the applicant and the respondent, consent orders relating to custody and access were made in the Family Court on 9 December 1997. On 15 July 1998 a protection order was granted on the respondent’s application. At that time there was some evidence of physical violence but it had been some time previously and the Judge’s decision in relation to the protection order proceeded on the basis that there was continuing psychological abuse.

[3] Subsequently, the respondent filed an application for variation of the access order and the applicant applied for defined access. According to the decision of Whitehead DCJ, the child was displaying considerable distress. The child was described as having special needs, the Judge accepting that he is suffering from Aspergers Syndrome, a mild form of autism. The applicant disputes that finding but that was the finding of the Family Court Judge.

[4] At a defended hearing on 1 February 2001 at which the applicant and respondent were represented by counsel and at which counsel for the child also appeared, Whitehead DCJ considered the applicant’s application for access and issued a reserved decision on 16 February 2000. The Judge determined that access by the applicant should be on a supervised basis with a re-assessment of the position after a period of access had been undertaken.

[5] The Judge specifically stated then (and in his later decision for which leave to appeal is now sought) that the applicant is not a physically violent person today and that his decision was based solely upon the psychological wellbeing of the child. He also found that the applicant loved his son and would not intentionally harm him. However, he reached the determination after consideration of all the available and admissible evidence and applying s 23 of the Guardianship Act, as well as the provisions of ss 16A and B of that Act.

[6] The Judge adjourned the application for further submissions to be made as to the appropriate venue for supervision and the appropriate supervisor or supervisors. He indicated that his intention was to make supervised access orders on the basis of the memoranda filed.

[7] The Judge also ordered that. pending the hearing, counsel for the child could, with the assistance of the parties, reach agreement as to an alternative supervised access venue and undertake access accordingly. The Judge also recommended that the applicant undertake a psychiatric assessment which was to be made available to the Court to assist the applicant in achieving his aim of unsupervised access, subject to the psychologist’s re-assessment of the position after a period of access had been undertaken.

The decision under appeal

[8] The matter came before the Court again on 12 February this year and Whitehead DCJ delivered a decision orally on 30 March. It is evident from the decision that the issue of access, including whether supervision was required, was canvassed at the further hearing in considerable detail and that the Judge had available to him a number of additional reports. These included reports from the Court appointed psychologist, the neuropsychiatrist who had examined the applicant in the interim period, and a Dr Trautmann.

[9] In his decision, the Judge considered all of the material available to him, the Court appointed psychologist having been cross-examined. The Judge specifically rejected the submission made on behalf of the applicant that the opinion of the Court appointed psychologist had been adversely influenced by false or misleading statements made by the respondent and her husband. He found that the Court appointed psychologist had conducted herself professionally throughout and he accepted her opinion that it would be inappropriate and not in the child’s best interests for unsupervised access to occur. At the same time, the Judge recognised that it was important for access to be maintained, even if on a supervised basis by the applicant.

[10] There was discussion in the course of the judgment about the practicalities of arranging supervised access bearing in mind that the applicant is in a difficult financial position and is in receipt of a benefit. Reference was made to the cost of obtaining supervised access and to the difficulties which arose from the fact that there were no or only limited facilities for supervised access in the Taupo area. In the end, the Judge decided there should be supervised access by the applicant to the child each alternate Sunday between 10 am and 4 pm. As well, other orders were made for special days such as Christmas day and the child’s birthday. The Judge considered there should be supervised access, as well as independent people monitoring the change-over of the child from the mother to the father and vice versa.

[11] After making a number of supplementary orders to do with counselling, the Judge adjourned the application for access until 12 April 2001 “to consider possible supervisors and acceptance of the same so that final orders can be made in that regard”.

[12] Finally, the Judge made an order that there be no further application filed in respect of access issues for a minimum period of twelve months without the leave of the Court. He made that decision on the basis that it was in the child’s best interests and welfare that there be a lengthy period of stability and his view that this could only be maintained if there were no further recourse to the Court. The Judge made that decision notwithstanding his appreciation of certain decisions of this Court which have dealt with orders of that kind.

Mr J’s submissions

[13] Mr J has informed me today that he has not had access to his son for some five months other than on Sunday 12 August this year when he had supervised access, the supervisors being a Mr and Mrs Thiele. He complains that the respondent and her husband have refused access to him except on that occasion. He understood that Mr and Mrs Thiele had been approved by the Judge as appropriate for supervision purposes. It is not clear to me from the Judge’s decision whether that it so. As I read his decision, he approved them for the purpose of monitoring the change-over but it is not clear whether he also approved them for the purposes of actual supervision. Mr J says Mr and Mrs Thiele have always been acceptable to the respondent.

Principles

[14] An application for leave to appeal is a discretionary decision for this Court and the principles upon which the discretion is to be exercised are well established. In Avery v No 2 Public Service Appeal Board and Others [1973] 2 NZLR 86, 91, Richmond J made it clear that the onus rests upon the applicant to satisfy the Court in all the circumstances that the justice of the case requires he be given an opportunity to attack the judgment from which he wishes to appeal. The Court is to have regard to the whole history of the matter including the conduct of the parties, the nature of the litigation, and the need of the applicant on the one hand for leave to be granted to together with the effect which the granting of leave would have on other persons involved. The Court will normally have regard in the first instance to any reasons given for the delay.

This case

[15] In this case, Mr J has sworn an affidavit in support of the application in which he says he was under a misapprehension as to the nature of the order made by Whitehead DCJ preventing further applications on access issues for a minimum of twelve months without the leave of the Court. Mr J says he assumed that meant he could not even appeal the decision. He says it was not until 17 May this year when discussing the matter with his solicitor that he was advised his interpretation of the judgment was incorrect. He also says in his affidavit that it has become increasingly clear to him after the last decision of the Family Court that if access is to be supervised, then in all likelihood that will mean he has no access at all given the practical difficulties of arranging supervisors.

[16] I do not regard the grounds given by the applicant to explain the delay as having much merit. He was represented by a solicitor at the time of the hearing before Whitehead DCJ and the same solicitor filed the application for leave to appeal. No doubt the applicant had the opportunity, if he wished to do so, to explore the position fully with the solicitor with regard to any appeal. As well, the terms of the order are very clear. They do not refer in any way to appeals being prevented. The order clearly restricts further access applications only in the Family Court without leave.

[17] The second matter which seems to me to be of significance in disposal of this application is that it remains possible for Mr J to have a further hearing in the Family Court with regard to the appointment of supervisors and the practicalities of working out the supervision arrangements as envisaged by the Judge. Indeed, Mr J has told that there is a further hearing in September in the Family Court which he understands is for that purpose. As well, he is able to apply further with regard to access if he has the leave of the Court and, after the expiry of twelve months from the date of Whitehead DCJ’s order in March, he can apply further with regard to access without the leave of the Court.

[18] Mr Hawes submitted for the respondent that there is little merit in the appeal itself. I am not proposing to make findings in that respect except to note that the Judge has, on two separate occasions, fully considered all the relevant issues and has carefully reached his conclusions with full reasons. I also note the reluctance of this Court to intervene in cases involving the Family Court unless there are very clear grounds to do so. In that respect, I refer to the decision of Potter J in Young v Peebles (High Court, Auckland, AP103/99, 22 October 1999).

Conclusion

[19] Standing back and viewing, the matter overall, I am of the view that justice does not require leave to be granted in all the circumstances of this case. Accordingly, the application will be declined and the matter will now revert to the Family Court for consideration of the outstanding matters from the last decision of that Court.

[20] The issue of costs has been raised. It seems to me there is little point in making any costs order, bearing in mind the applicant’s financial circumstances. Accordingly there will be no order for costs.