Joyce v O'Brien
[2014] NZHC 964
•9 May 2014
NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, 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 NEW PLYMOUTH REGISTRY
CIV-2013-443-000305 [2014] NZHC 964
BETWEEN JOYCE
Appellant
AND
O'BRIEN Respondent
Hearing: 4 February 2014 Appearances:
S R Jefferson QC to Assist the Court
Appellant in Person
R Wilson and C M Quin for the Respondent
P W Shearer for the ChildrenJudgment:
9 May 2014
JUDGMENT OF DUFFY J
This judgment was delivered by Justice Duffy on 9 May 2014 at 3.00 pm, pursuant to
r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:
Counsel: S R Jefferson QC, Auckland
Solicitors: Quin Law, New Plymouth
Govett Quilliam, New Plymouth
Copy To: Appellant, New Plymouth
JOYCE v O'BRIEN [2014] NZHC 964 [9 May 2014]
[1] The sole question for determination in this appeal is whether the appellant should have contact with his seven year old daughter or not. The Family Court found that there should be no such contact. The respondent, who is the girl’s mother, supports the Family Court’s decision. Counsel for the child initially supported the Family Court’s decision, but changed position during the hearing and supported the appellant having supervised contact.
[2] The appellant is the father of two children; N, a boy aged 14 years, and G, a girl aged seven years. The respondent is his former wife and the mother of the children. The appellant and the respondent separated shortly after G was born. Since then, there have been ongoing difficulties between the appellant and the respondent over contact with the children, which have frequently brought the parties to court.
[3] Since the appeal was heard, s 5 of the Care of Children Act 2004 (the Act) has been amended so that the subsection references in the Family Court’s decision and counsel’s submissions in this Court are now different from the section. However, the content has not altered in substance. I propose in this judgment to refer to s 5 in the form that it was at the time of the hearing in the Family Court and in this Court.
Orders made in the Family Court
[4] On 27 September 2013, Judge Twaddle discharged the previous parenting orders made on 21 September 2012. In their place, he made orders that:
(a) N was to be in the day-to-day care of the appellant; (b) G was to be in the day-to-day care of the respondent; (c) The appellant was to have no contact with G;
(d)N and G are not to have contact with each other unless, by agreement between them, N has contact with the respondent, in which case N
and G may have contact on condition that the respondent agrees and the contact is supervised by her;
(e) The bond of $3,000 paid into court by the appellant was to be paid to the respondent;
(f) Mr Shearer’s appointment as lawyer for the child was terminated; and
(g)No further applications were to be made with respect to parenting or guardianship issues relating to N or G within two years, except with leave of the court.
[5] The Family Court made no order for contact between N and the respondent. Also, no formal order was made for the relocation of G, despite this being a consequence of the order that she be in the day-to-day care of the respondent.
[6] N chose to live with the appellant. The respondent and counsel for the child did not support this outcome. However, the Family Court recognised that given N’s expressed wish to live with his father and his earlier conduct, which involved him running away from his mother’s home to stay with his father and later with his paternal grandmother, there was little point in ordering N, who is now 14 years old, to live elsewhere. At his age, ordering him to live with someone he did not want to live with was unlikely to work.
[7] The circumstances surrounding the appellant’s contact with N are not directly in issue in this appeal. However, they are indirectly relevant to the issue of N’s contact with G. Further, the appellant has been accused of “alienating” N from his mother, and there is a belief that the appellant will use N as a conduit to communicate similarly alienating thoughts to G.
The appeal
[8] The appellant represented himself in this appeal, as he did in the Family Court. Initially, he appealed against the orders: (a) denying him access to G; (b) giving N restricted access to G; (c) permitting the relocation of G; and (d)
directing the payment of the bond to the respondent. However, during the hearing of the appeal, the appellant responsibly chose to confine the scope of the appeal to the sole issue of whether he should be permitted to have contact with G.
[9] The appellant is to be commended for the course that he adopted at the appeal hearing. He was concerned about and did not agree with the decisions under appeal. However, he was able to see that, at the present time, there was good reason to not proceed against the balance of those decisions.
[10] First, the appellant sensibly recognised that in respect of the relocation of G, the respondent had sold her former home and purchased a new home in a different locality, some 15 minutes drive away from the town where the family previously lived. So it was impractical to attempt to undo this decision. The respondent had made no formal application for relocation. Counsel appointed to assist the Court raised concerns about the relocation occurring by default. The respondent contends that she made an oral application during the course of the defended hearing in the Family Court. As the appellant was representing himself before the Family Court, the short notice that such an application would have entailed for him casts some doubt on whether he was afforded a proper opportunity to be heard on this matter. However, rather than pursue his complaint about the relocation of G, he accepted the inevitability of G now living further away from him and N than she has previously done.
[11] Secondly, regarding the contact between G and N, the appellant did not like this hinging on N having contact with the respondent and her agreement to contact between G and N under her supervision. Nonetheless, he recognised that contact under the new regime had been occurring, and that to date this was working well enough to make it worthwhile for everyone to stand back for the moment to see how things progressed. This concession was made in the context of counsel assisting the Court having filed submissions which described this order as radical and suggested there was some doubt as to the Family Court’s jurisdiction to make an order prohibiting contact between siblings. In addition, I have some difficulty with the language of the order, as it would allow N’s contact with his sister to be conditional on him having contact with the respondent. In this regard, it does not seem in the
best interests of either child that N’s wish for contact with G be used as a lever to encourage him to have contact with the respondent. There is the potential here for any future breakdown in the relationship between N and the respondent to be used by her to deny N further access to G.
[12] Thirdly, regarding the payment under a bond that was part of a parenting order made on 17 May 2011, the appellant was not happy about the payment. However, he elected not to pursue this issue. Had he done so, it might have caused problems for the respondent, as the Family Court had ordered that the payment of the bond of $3,000 was to be made to the respondent, and the Registry had actioned that direction. However, bond money paid under s 70 can only be directed to be paid to another party in a parenting dispute if the process in s 71 is followed. This requires the Court first to ascertain if the opposing party (here the respondent) should receive reimbursement of reasonable legal costs incurred by the other party’s contravention of a parenting order. Counsel appointed to assist the Court submitted that nowhere in the judgment had Judge Twaddle carried out the analysis required by s 71. If this submission were correct, the failure to follow the requisite statutory process would constitute an error of law that would go to jurisdiction: see Peters v Davison [1999]
2 NZLR 164 (CA) at 206 per Tipping J: “A decision maker who errs in law acts ultra vires”.
[13] If the order directing payment of the bond to the respondent were ultra vires, this could lead to the respondent having to repay the bond money to the Family Court. However, as the appellant chose to abandon this point of appeal during the course of the hearing, I do not intend to deal with it any further.
[14] I have commented on the three abandoned points of appeal because I realise that in the past there has been considerable criticism of the manner in which the appellant has conducted himself before the Court. I considered it important, therefore, to acknowledge that those points of appeal raised seriously arguable issues, and that this was not a case where the appellant had raised frivolous and vexatious points of appeals only to abandon them once he was before the Court.
Decision of Judge Twaddle
[15] The factual background of the parties’ dispute and their earlier litigation before the Family Court is set out in Judge Twaddle’s decision. This account reveals that the dispute between the parties has become more acrimonious over the years. The sticking point to any improvement in their relationship appears to me to have been the way in which they each responded to N’s increasing reluctance to live with the respondent.
[16] The material filed as part of this appeal included the earlier applications and supporting material to the Family Court. This reveals that from 2007, N was expressing a wish to live with the appellant.
[17] The respondent believed that N should comply with court orders and insisted that he be returned to her care whenever he ran away. She was supported by counsel for the child and the Family Court in this regard. On the other hand, the appellant did not routinely or speedily return N to the respondent’s care. As the earlier occasions when this occurred are not the subject of the appeal, I am in no position to assess whether the appellant was intentionally seeking to alienate N from the respondent, or whether he was a parent facing the difficult position of being required by court order to act in a way that would cause distress to his son. Certainly the Family Court formed the view that it was the former circumstance. Stricter and stricter parenting orders were imposed. Ultimately, a bond under s 70 of the Act and a protection order under the Domestic Violence Act 1995 were issued in terms that required the appellant to return N to the respondent should N run to the appellant.
[18] The history of the appellant’s breaches of earlier parenting orders stems largely from the difficulties that there have been with forcing N to stay with the respondent. There is no history of the appellant breaching parenting orders in relation to G. Nonetheless, the concerns regarding the appellant being responsible for N’s alienation from the respondent have led to the perception that this might happen with G as well.
[19] In his decision, Judge Twaddle outlined the legal principles and purposes of the Act. The Judge considered that the principles of most relevance to the children’s best interests in this case were: s 5(b) – continuity of arrangements and continuing relationships with both parents; s 5(d) – preservation and strengthening of relationships between the child and his or her family; and s 5(e) – protection from all forms of violence.
[20] Turning to the relationship between the appellant and the respondent, the
Judge referred to reports of the psychologist, Mr Dolan, made in 2009, 2010 and
2013. The Judge formed the view that the parties’ relationship was still highly conflicted, tense and mistrusting. He found that they had failed in their responsibility to consult and co-operate about the children’s care, development and upbringing.
[21] The Judge analysed the parties’ parenting attitudes and abilities. He found (at
[65]):
(a) The respondent likes to have routine and for her authority and that of others to be respected;
(b)The respondent has not felt sufficiently secure in her parenting of N to be assertive in providing boundaries, which is understandable as the appellant’s influence on N has increased;
(c) The appellant is a self-centred, intense person who has always had a strong vision of his life path. This has led him to become controlling of his family. As the breakdown of his marriage was not part of his vision, it affected him deeply and took him a long time to move on. While in the process of doing so, he has formed an implacable mistrust of the respondent;
(d) The appellant’s mistrust of the respondent has made him lose
sight of the interests of the children and he has actively
undermined the respondent’s parenting and the children’s
respect for her;
(e) The appellant’s behaviour and influence has substantially
alienated N from the respondent;
(f) The process of alienation could only be reversed if the appellant substantially changed his behaviour and attitudes, and encouraged N to have contact with his mother. On the appellant’s evidence, this will not happen;
(g)The appellant lacks insight into the effect of his behaviour on the children, and this is unlikely to change; and
(h) The appellant’s manipulative behaviour makes him a poor role
model for the children.
[22] As the appeal is now focussed on whether the Judge was wrong to deny the appellant contact with G, I will only refer to other aspects of the judgment where they are relevant to this issue.
[23] The Judge traversed the evidence of the psychologist, Mr Coyle, regarding G, who reported that G would like her family to be all together; she loved both of her parents and missed her brother. However, Mr Coyle noted that G was beginning to reveal a pattern of behaviour where she could become “angry when her mother is mean to her and that she then wanted to go to dads [sic]”. The Judge concluded that this behaviour was likely to be “role modelled by N’s behaviour when living at his mother’s and possibly supported by [the appellant’s] open invitation and expressed objective of G being at home with him”: (at [74]).
[24] The Judge referred to Mr Coyle’s view that G “has a good attachment” to the respondent: (at [75]). However, the Judge also accepted Mr Coyle’s view that G enjoyed contact with the appellant: (at [74]). But here Mr Coyle thought that her attachment to him may have become “increasingly insecure” since 2012 when he
stopped contact with G, and contact was then suspended by the Family Court. Mr Coyle also believed that G was becoming increasingly alert to the conflicts between her parents and this had led her to feel the need to demonstrate loyalty to one or the other parent. Mr Coyle noted that already G was withholding information from the respondent. This led Mr Coyle to conclude that there was a high risk of G becoming alienated from the respondent in the same way that N had done. Whether she did so or not, in Mr Coyle’s view, hinged on the attitude of the appellant. Without any change in his attitude, Mr Coyle considered that over time, G’s behaviour would come to follow N’s. For this reason, Mr Coyle’s view was that any contact the appellant had with G needed to be limited to fortnightly contact under the supervision of an agency such as Barnados.
[25] The Judge, who interviewed G, described her as a “shy, sad girl”: (at [78]). This view of G was also borne out by a report from her school, which described her as sad and believing that she had to choose between her parents as to whom she is to live with and that she did not want to do this: (at [75]).
[26] The Judge noted the available options for contact with G as being:
(a) The appellant’s proposal for contact initially every second weekend, extending over time to a week about arrangement;
(b)Counsel for the child’s proposal for the appellant to have supervised contact at the nearest Barnados office once a fortnight, with the arrangements being reviewed in February 2014; or
(c) The appellant having no contact with G.
[27] The Judge then noted the respondent’s concern that the appellant might influence G against her in much the same way as was done with N. In this regard, the respondent had expressed her concern that she did not want to go through the same experiences with G as had occurred with N. Her view, therefore, was that any contact should be supervised by Barnados.
[28] The Judge acknowledged the appellant’s expressed love for G and his
willingness to participate in supervised contact, despite not liking that restriction.
[29] The Judge then accepted Mr Coyle’s evidence that G was already demonstrating signs of following a similar pathway to N and that the risks of this occurring were increased if she were to have contact with the appellant. The Judge also noted Mr Coyle’s reservation that any contact that the appellant had with G should be supervised contact by Barnados.
[30] The Judge then proceeded to weigh the competing options in terms of s 5 of the Act. He found that the appellant’s proposal accorded with the principles in s 5(b) and (d). However, the risks of the appellant influencing G against the respondent were found to outweigh those principles. The Judge considered that if G followed in the same direction as N, this would be “very damaging for her and, over time, result in a behavioural disorder”. This outcome did not accord with s 5(e) and “would be seriously contrary to her welfare and best interests”: (at [94]).
[31] The option of supervised contact by Barnados was recognised to accord with s 5(b) and (d) but it was seen as a short-term option. The Judge considered that there was a limit to the time that supervised contact by Barnados could be effective. He also considered that the prospect of a successful change to unsupervised contact would depend on whether the appellant could change his attitude and develop some insight into his behaviour, which was seen to be unlikely. Thus, he concluded (at [95]) that supervised contact would be:
“At best … a process of trial and error, or an experiment, which given the
history, is likely to fail.
The Judge also regarded this option as being likely to lead to further litigation over when unsupervised contact might commence, and what its terms should be.
[32] The Judge then turned to consider the option of the appellant having no contact with G. The Judge recognised that this did not accord with s 5(b) and (d). However, he thought that this proposal would accord with s 5(e) because it would remove the risk of emotional abuse of G by the appellant, alleviate the pressure on G
of feeling that she had to choose between her parents, and remove the risk of further litigation. This lead the Judge to find, for those reasons, that having no contact with the appellant would best meet G’s welfare and best interests.
[33] The issue of the relocation of G was to some extent linked with the finding of no contact, as the Judge found that the move to a new locality would benefit G, as she would be in the care of the respondent, and there would be less likelihood of her being exposed to unsettling visits from N and the appellant. These benefits were seen to outweigh the disadvantages of G having to become familiar with a new school and environment.
Appellate principles
[34] On general appeal, the appeal court has the responsibility of arriving at its own assessment of the merits of the case: see Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [5]; whereas an appellate court is more restricted when determining an appeal against a decision made in the exercise of a discretion: see Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [32] (footnotes inserted):
In this context a general appeal is to be distinguished from an appeal against a decision made in the exercise of a discretion. In that kind of case the criteria for a successful appeal are stricter: (1) error of law or principle; (2) taking account of irrelevant considerations; (3) failing to take account of a relevant consideration; or (4) the decision is plainly wrong [see May v May (1982) 1 NZFLR 165 (CA) at 170; and Blackstone v Blackstone [2008] NZCA 312, (2009) 19 PRNZ 40 at [8]].
[35] Each appellate approach is not difficult to apply; but choosing which of the two is the appropriate approach in any particular case is not so easy: see Kacem v Bashir at [32]:
The distinction between a general appeal and an appeal from a discretion is not altogether easy to describe in the abstract. But the fact that the case involves factual evaluation and a value judgment does not of itself mean the decision is discretionary.
[36] Now a new category of appeal for proceedings under the Act has started to emerge from the case law. This approach was described by Panckhurst J in H v F
HC Christchurch CIV-2010-409-955, 3 September 2010 at [13] as a “hybrid”
approach.
[37] The supporters of the “hybrid” approach draw support from passages of Carpenter v Armstrong HC Tauranga CIV 2009-470-511, 31 July 2009, where Heath J said:
[16] Appeals from the Family Court are governed by s 143 of the Care of Children Act 2004 (the Act). Section 143(4) imports ss 73 to 78 of the District Courts Act 1947 as part of the procedures on appeal. The appeal is by way of rehearing (s 75) and falls within the scope of an appeal of the type to which the Chief Justice referred in Austin Nichols at para [16]. If the appeal were allowed, this Court may make any decision that it thinks should have been made or remit the proceeding to the Family Court for reconsideration on a basis to be articulated clearly in its decision (s 76(1)).
[17] Application of the Austin Nichols principles is not altogether easy in the context of appeals from the Family Court, particularly in care of children proceedings. Many first instance decisions of that type represent a mix of findings of fact (after seeing and hearing witnesses), the formation of an evaluative judgment and the exercise of statutory discretions. Indeed, it is sometimes difficult to characterise a particular decision as evaluative, factual or discretionary in nature. (emphasis added)
[18] Appeals from the Family Court were addressed specifically in D v S [2003] NZFLR 81 (CA) at para [18]. Blanchard J, delivering the judgment of the Court of Appeal, said:
… An appeal to the High Court from the Family Court is an appeal by way of rehearing. Whilst the High Court will naturally give weight to the views of the specialist Court and may in some cases think it best to remit the case for reconsideration, it is fully entitled to substitute its views on questions of fact, including the issue of what is in the best interests of the child or children concerned. There is no rule of law requiring the High Court to defer in these respects to the Family Court even in a finely balanced case. ….
[19] I consider that D v S remains good law, so far as appeals from the Family Court are concerned. Blanchard J, who gave the judgment of the Court of Appeal in D v S, was also a member of the Supreme Court in Austin Nichols. It is unlikely that the Supreme Court intended to undermine the approach articulated in D v S.
[20] I approach this appeal on the following basis. First, I must take account of the advantage that Judge Somerville had of hearing and seeing the witnesses give evidence before her, at a hearing which extended over four sitting days: see Austin Nichols at para [13]. Second, to the extent that the Judge exercised any discretion in reaching her decision, I am entitled to determine whether those discretionary decisions were or were not correct, based on May v May [1982] 1 NZFLR 165 (CA) and Blackstone v
Blackstone [2008] NZCA 312 at para [8]. Otherwise, I am free to reconsider the Family Court’s decision and to substitute my own view on questions of fact and evaluation, if I were convinced that the first instance decision was wrong. In that regard, with respect, I endorse Randerson J’s remarks in WPH v ITP (High Court Auckland, CIV 2009-404-462, 10 June 2009) at para [15]. (emphasis added)
[38] The critical passages are [17] and [20] which have been used to support an argument that where a decision is perceived to involve a mix of factual findings, evaluative assessment and the exercise of a discretion, the appellate approach should be a mix of the Austin, Nichols principles (applied to the factual and evaluative assessments) and May v May (applied to the discretionary aspect of the decision).
[39] In H v F, which was an appeal against a s 140 order dismissing proceedings in the Family Court, Panckhurst J refused to adopt a “hybrid” approach. The argument for a hybrid approach and Panckhurst J’s reasons for rejecting it appear at [13] and [14]:
[13] Building on these observations [made in [17] to [20] of Carpenter v Armstrong] counsel submitted that a hybrid approach was required in the present context. He pointed out that a decision under s140 required both findings in the nature of factual findings, followed by a discretionary evaluation as to dismissal of the proceeding or not. Mr van Bohemen suggested that in relation to the more factual aspects an Austin Nichols’ approach was required, while the test for interference with the exercise of a discretion was apposite in relation to the final discretionary evaluation.
[14] I agree with Heath J’s observation ([17] of his decision) that application of the Austin Nichols’ principles is not straight-forward in a case of this kind. In this instance, however, the Judge did not hear evidence so that consideration does not arise. Although the decision required under s140 may be described as discretionary in nature, I prefer the view that an Austin Nichols’ approach remains appropriate. The decision determines whether a proceeding is dismissed or not. This factor, and the intensely evaluative character of the decision, indicates to me that the determination should be subject to full re-evaluation on appeal.
[40] In RAW v CR [2012] NZHC 1470, I dealt with an appeal against orders made under ss 140 and 141 of the Act. The Family Court was facing applications that sought to vary or suspend parenting orders relating to contact, care and restricting the relocation of a child. Rather than deal with the applications on their merits, the Family Court had dismissed them under s 140 and prohibited the making of further applications under s 141. The counsel seeking to uphold the Family Court orders cited Carpenter v Armstrong and argued for a hybrid approach to be applied to the
appeal. At [55] of RAW v CR, I concluded that a hybrid approach would impose more constraint on an appellate court than would an Austin, Nichols approach:
[55] Carpenter v Armstrong was a relocation case. Heath J’s willingness to approach any discretionary aspects of the Family Court’s decision as if he were dealing with an appeal from the exercise of a discretion shows that on a hybrid approach, an appellate court is more constrained than would be the case if it were to follow Austin Nichols.
[41] In RAW v CR, I followed Panckhurst J in H v F. My reasons for rejecting a hybrid approach appear at [51]-[58] of the judgment.
[42] In the present appeal, counsel assisting the Court argued for an appellate approach that followed the hybrid approach based on the relevant comments in Carpenter v Armstrong. Counsel for the respondent and counsel for the children did likewise.
[43] The approach to be taken to this appeal is fundamentally important to its outcome as the extent to which an appellate court can substitute its views of the merits of the appellant’s case will be determinative of the outcome. This is not a case like Blackstone v Blackstone [2008] NZCA 312, (2008) 19 PRNZ 40 where, at [23], the Court of Appeal referred to the High Court’s conclusion on the decision under appeal (reported as B v B [Relocation] [2008] NZFLR 1083 at [45]) that the outcome would have been the same whether the approach taken was for a general appeal or an appeal against the exercise of a discretion.
[44] Further, as Elias CJ recognised in Austin, Nichols at [16]:
Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court …
Conversely, those who are respondents in appeals against the exercise of a discretion are entitled not to have the appellate court substitute its opinion for that of the first instance court. Thus, the application of the wrong approach to an appeal can lead to a party being denied his or her true entitlement.
[45] I have, therefore, reconsidered the question of how to approach this appeal in the light of counsel’s submissions. However, for the reasons set out below, I remain
of the view that an appeal against a parenting order is a general appeal to be dealt with under Austin, Nichols principles.
[46] First, the Court of Appeal in Blackstone v Blackstone at [24] held that appeals from parenting orders are general appeals:
… this Court [referring to its earlier decision in D v S [2003] NZFLR 81 (CA)] has already decided that appeals from parenting orders are general appeals.
Such a finding leaves no room in this appeal for a “hybrid” approach. The reference in [8] of Blackstone v Blackstone, which is cited in [20] of Carpenter v Armstrong, goes no further than to state that Austin, Nichols does not affect appeals against the exercise of a discretion. Accordingly, what is said at [8] of Blackstone v Blackstone cannot detract from the clear finding at [24] of the decision.
[47] Secondly, the Supreme Court in Kacem v Bashir implicitly approved the
Court of Appeal’s finding in Blackstone v Blackstone; at [32]-[33] Tipping J stated:
… as the Court of Appeal [in Kacem v Bashir] correctly said, the assessment of what was in the best interests of the children in the present case did not involve an appeal from a discretionary decision. The decision of the High Court was a matter of assessment and judgment not discretion, and so was that of the Family Court. (emphasis added)
The Court of Appeal was seized of a general appeal despite the need for leave to be granted to appeal to that Court from the High Court in terms of s 145(1) of the Act. Once leave was granted, the Court of Appeal had power under s 145(2) to rehear the whole or any part of the evidence and to receive further evidence. That power is a classic indicator of a general appeal. (footnote omitted)
[48] Tipping J at [34]-[35] went on to consider Professor Mark Henaghan’s concerns as to the unpredictability of decisions in relocation cases and the width of the “discretion” given to Judges in deciding such cases.
[35] These and other concerns identified by the Professor are inherent in the exercise in which judges administering ss 4 and 5 of the Act are involved. Lack of predictability, particularly in difficult or marginal cases, is inevitable and the so-called wide discretion given to judges is the corollary of the need for individualised attention to be given to each case. As we have seen, the court is not in fact exercising a discretion; it is making an assessment and decision based on an evaluation of the evidence. It is trite but perhaps necessary to say that judges are required to exercise judgment.
The difficulties which are said to beset the field are not conceptual or legal difficulties; they are inherent in the nature of the assessments which the courts must make. The judge’s task is to determine and evaluate the facts, considering all relevant s 5 principles and other factors, and then to make a judgment as to what course of action will best reflect the welfare and best interests of the children. While that judgment may be difficult to make on the facts of individual cases, its making is not assisted by imposing a gloss on the statutory scheme. (emphasis added and footnote omitted)
[49] Thirdly, the above statements from Kacem v Bashir also put the question of the character of an appeal against a parenting order beyond doubt. Kacem v Bashir and Blackstone v Blackstone were decided in the relocation context. However, the orders under appeal in those cases were parenting orders made under s 48 of the Act. For example, in Kacem v Bashir, the relocation dispute was considered in the context of shared day-to-day care of the children. Similarly, in Blackstone v Blackstone, the appeal sprang from a challenge to a parenting order made in the Family Court giving the child’s mother the day-to-day care of the child in circumstances where the child was to be relocated from New Zealand to England. Relocation matters, day-to-day care and contact arrangements are “inextricably intertwined”: Carpenter v Armstrong at [52]. Any form of parenting order that touches on the arrangements for a child’s care engages ss 4 and 5 of the Act. Accordingly, the statements in Kacem v Bashir and Blackstone v Blackstone are not to be read as limited to appeals against relocation orders. They are equally applicable in appeals against parenting orders made in other contexts as well.
[50] Fourthly, Carpenter v Armstrong was expressly referred to by the Court of Appeal in Bashir v Kacem [2010] NZCA 96, [2010] NZFLR 865. Arnold J referred to Heath J’s comment that many Family Court first instance decisions involve a mix of factual findings, evaluative judgments and the exercise of statutory discretion which makes the Austin, Nichols principles difficult to apply: (at [37]):
In Carpenter v Armstrong Heath J noted that the application of the principles articulated in Austin Nichols can be difficult in the context of appeals from the Family Court as many first instance decisions in that jurisdiction involve a mix of factual findings, evaluative assessments and the exercise of statutory discretions.
[51] However, after noting this concern, Arnold J went on to state (also at [37])
that:
The present case does not involve an appeal from a discretionary decision, but does involve factual findings and evaluative assessments. As Duffy J noted in B v B Relocation [the High Court decision appealed against in Blackstone v Blackstone], answers to the question what is in the best interests of a particular child may differ as between judges. This is not because they involve discretionary decisions but because they involve evaluative assessments, which will not by their nature yield definitive answers. (footnotes omitted)
[52] Apart from this reference to Carpenter v Armstrong, the hybrid approach has not been referenced in any other Court of Appeal or Supreme Court decision.
[53] Finally, Kacem v Bashir makes it clear that the first task of an appellate court is to determine whether an appeal can be characterised as a general appeal, or an appeal against the exercise of a discretion. The judgment of the Supreme Court excluded from their discussion other categories of appeal, such as appeals of questions of law by way of case stated, presumably because there is no difficulty in distinguishing them from other forms of appeal. There is nothing in the Supreme Court’s decision in Kacem v Bashir to support the idea of a potential third category of appeal of the type for which those who argue for a hybrid approach now contend. Further, the comment by Arnold J at [37] of the Court of Appeal’s judgment in Kacem v Bashir suggests a rejection of any such approach. Had either Court in these appeals contemplated a hybrid approach, it would have expressly addressed this possibility.
[54] Accordingly, there is nothing in either Kacem v Bashir or Blackstone v Blackstone that would allow for the creation of a hybrid category of appeal for decisions on parenting orders, or other orders that involve an assessment of the best interests of a child. Instead, those decisions contain clear findings that appeals from parenting orders, or other orders that affect what is in the best interests of a child are to be dealt with as general appeals. Those findings are binding on me. It follows that I reject the submissions of counsel that I should adopt a “hybrid” approach to this appeal.
Parties’ arguments
[55] The appellant submits that the decision was made incorrectly for the following reasons:
(a) G did not have proper representation of her best interests and views;
(b)G was not informed about her need to choose with whom she was to live forever; and
(c) The opinions of Mr Coyle were opinions “without reference or
parallel to other or similar cases”.
[56] The appellant argues that the decision is not in the best interests of G
because:
(a) G is entitled to the benefit of a relationship with both parents. The appellant contends that by denying him contact with G, the Family Court had alienated a parent from his child, which is unlawful under the Act; and
(b)The decision to deny him access to G will have a permanent negative impact on the emotional and mental welfare of G.
Respondent’s submissions
[57] The respondent has addressed five main issues.
[58] Regarding the argument that G’s views were not taken into account, the
respondent submits that:
(a) Section 6 is satisfied, as G was given a reasonable opportunity to express her views and she was interviewed by Judge Twaddle. Judge Twaddle met with G but considered her young age precluded him from making an in-depth inquiry into her views;
(b) G was represented by counsel for the child, Mr Shearer; and
(c) Mr Coyle is an expert witness and has experience involving the alienation of children from a parent.
[59] Regarding the denial of G’s contact with the appellant, the respondent submits that:
(a) This case involves an extraordinarily severe level of alienating behaviours on the part of the appellant;
(b) The principles Judge Twaddle took into account (ss 5(b), (d) and (e))
were appropriate;
(c) The final order was appropriate, as any contact with the appellant would expose G to emotional abuse and further alienation from the respondent; and
(d)The effect of the order is to prevent contact for two years. This gives G a break from the legal and personal conflicts and time for the alienating effects to recede.
Counsel for the child
[60] During the hearing, counsel for the child altered his stance. At the hearing before Judge Twaddle, counsel for the child had recommended that the appellant have formal supervised access to G, which is an approach that Judge Twaddle rejected. In submissions filed before the appeal hearing, counsel for the child supported Judge Twaddle’s decision to withhold the appellant having access to G for a period of two years. This approach may in part have been based on counsel’s view that Judge Twaddle “had a discretion as to what order to make as regards contact between [G] and the appellant” so that “the appeal cannot succeed on any of the May v May principles”. Counsel went on to argue that in reaching his decision, Judge Twaddle did not take into account irrelevant considerations, did not fail to take
account of relevant considerations, or reach a decision that could be said to be
“plainly wrong”. Whilst this might be so, it is the wrong test.
[61] At the hearing, counsel for the child returned to his original position before the Family Court by supporting the appellant having limited access to G in the form of access under the supervision of Barnados. Given the change of stance, and the view I take of the proper appellate test, I see no need to traverse the argument in the written submissions filed before the appeal hearing.
Counsel appointed to assist the Court
[62] In this appeal, the Court has had the benefit of receiving argument from counsel appointed to assist the Court. Counsel set out the findings of Judge Twaddle that I have referred to at [21] herein and submitted that on the evidence before the Judge, it was open to him to make those findings. Counsel referred to the appellant’s submissions, which do not take issue with any of the Judge’s findings, and are instead confined to a generalised objection to the orders the Judge made. Counsel observed how this made it difficult to frame submissions in the appeal, as it was difficult to know which if any of the Judge’s findings were challenged. Counsel invited the Court to recognise the advantage that Judge Twaddle had in seeing and hearing the witnesses. Further, the Court’s attention was drawn to the long history of this Family Court litigation, which had commenced in 2007.
[63] Counsel noted that Judge Twaddle had drawn on findings by earlier Family Court Judges who have dealt with these parties, which it was submitted was appropriate, given that the appellant had not appealed those earlier decisions. Counsel also drew the Court’s attention to the reports prepared by the psychologists, G Dolan and, later, P Coyle.
[64] Counsel observed that the notes of evidence revealed the appellant’s cross- examination of the respondent and the psychologist, Mr Coyle, was poorly focussed and perfunctory, with which I agree.
[65] Counsel then submitted that the key findings that had influenced Judge Twaddle to refuse the appellant all contact with G for a period of two years were the findings that:
(a) The appellant’s mistrust of the respondent had caused him to lose
sight of the interests of the children;
(b)The appellant’s behaviour and influence had facilitated a process whereby N had become almost but not totally alienated from the respondent;
(c) The appellant lacks insight into the effect his behaviour has on the children and that this is not likely to change; and
(d)The relationship between the appellant and the respondent remains highly conflicted, tense and mistrusting, with them being unable to communicate effectively about the children so that they are unable to consult and to co-operate about the children’s care, development and upbringing.
[66] Against the background of the above general submissions, on the only live issue remaining, counsel submitted that Judge Twaddle’s analysis of the issue of contact between the appellant and G was relatively short, but succinct.
[67] Regarding the principles in s 5, counsel referred to Kacem v Bahir where the Supreme Court stated that there is no basis for “ranking” the s 5 principles and no one principle has greater weight than another. Though in that decision the Supreme Court also recognised that s 5(e) must be fulfilled and may displace other principles in a particular context.
[68] Whilst counsel took no issue with the s 5 principles that Judge Twaddle had identified (being s 5(b), (d) and (e)) as being most relevant in this case, counsel did state a concern about whether the emphasis that Judge Twaddle gave to those principles was warranted in all the circumstances. In this regard, counsel submitted
that on its face, the order that the appellant is not to have contact with G is radical and flies in the face of the principles of the Act. Accordingly, counsel raised two issues for the Court to consider:
(a) First, whether or not, in all the circumstances of this case, such an order is warranted; and
(b)Secondly, whether or not the Family Court Judge gave too much weight to the views of the respondent.
Analysis
[69] There is no parental right to contact with a child: see ER v FR HC Wanganui CIV 2003-483-133, 7 November 2003. Contact is available only if it is in the best interests of the child.
[70] In this case, Judge Twaddle placed principle 5(e), safety from emotional abuse, ahead of principles 5(b) and (d) of the Act. But even where abuse is thought to be likely, supervised contact, rather than no contact at all, has been thought to be sufficient to protect the child’s safety.
[71] In WAH v RDH [2009] BCL 771 (HC), the father applied unsuccessfully for unsupervised contact with two of his children, who were then aged five and eight years old. Courtney J concluded that the father posed a risk to the children’s emotional well-being. Notwithstanding various parenting courses, he showed a limited understanding of the emotional needs of children and the effect he had as a role model for the children. Despite these risks, supervised contact with the father for two hours each month was found to be appropriate. This finding was made against a background which Courtney J (at [2]) described as presenting intractable problems and where there had been long running litigation in both the Family Court and the High Court, with the six children of the family having been made wards of the High Court.
[72] In L v M HC Auckland CIV-2009-404-6978, 20 April 2010, Judge Ryan’s decision to limit supervised access to only two occasions a year between a mother and her children was upheld by Allan J in the High Court. The mother’s emotional instability had a detrimental effect on the children. In particular, the 11 year old boy exhibited severe behavioural problems while residing with his mother. The problems ceased after the move into his father’s day-to-day care. Limited contact, rather than no contact, was imposed as the Court recognised the need to repair the relationship between the mother and her children.
[73] Where a parent has previous convictions, supervised contact is sufficient to protect the child’s safety in some cases. In U v Q [2014] NZHC 109, the mother appealed against the Family Court order of limited supervised contact between the father and his 10 year old daughter (A) and a staged progression towards unsupervised contact. The father was convicted of three counts of indecent assault against a child from the mother’s previous relationship. The Family Court found two incidents of violence, one of sexual abuse of the same stepdaughter and a finding of physical abuse against the father where he smacked A on a family holiday. The child’s mother raised the abuse of the other child as a basis for excluding the father having contact with his biological daughter. Nonetheless, Dobson J upheld the order of supervised contact and accepted the Family Court’s conclusion that the father’s risk of reoffending was low.
[74] Interestingly in U v Q, Dobson J, at [59], referred to the fact that by the time the appeal was argued, there had been 1,000 hours of supervised contact without any significant concerns about the father being reported. Paragraph [59] refers to 10,000 hours but this is an error. What I find interesting here is the fact that supervised contact had continued for 1,000 hours and was still thought by Dobson J to be beneficial and worth continuing. At the appeal hearing in the present case, all counsel gave me the impression that supervised contact was something that can only work for a short period of time. Further, Judge Twaddle also treated it as a short- term option: see [95] of the judgment.
[75] I find the acceptance of supervised contact for a longer period of time as shown in U v Q to be very helpful in determining the outcome of this appeal. The
appellant wants unsupervised contact with G. However, at the appeal hearing, he sensibly accepted that given his lack of challenge to the findings made by Judge Twaddle, the only available alternative to the present order was supervised contact.
[76] As Courtney J recognised in WAH v RDH, at [6], the assessment of the welfare and best interests of a child must take into account both the “immediate day- to-day welfare of the child and the long term interests of the child”. In this case, there is no dispute that the material welfare of the children is well provided for by both parents. Further, N’s school report shows him to be doing reasonably well at school, which suggests that, apart from the alienation from the respondent, he is having no other difficulties. This is confirmed by Judge Twaddle’s decision that N should be in the day-to-day care of the appellant. Despite N’s determination to live with the appellant, if the appellant were a bad parent, in all respects it is hardly likely that he would have been given the day-to-day care of N.
[77] Judge Twaddle’s concern was to mitigate the unchallenged risk of G becoming alienated from the respondent in the way that N had done. It is in this respect that the appellant was found to be lacking as a parent. The Judge thought that G having no contact with the appellant for a two year period would achieve this end. He also thought that this would relieve any pressure G felt to choose between her parents, and it would bring the protracted litigation to a halt. However, all counsel recognised that the latter concern would only be abated for the two year period and that afterwards further litigation was likely.
[78] I have thought long and hard about this appeal and the Judge’s decision. I cannot see how it can be in G’s best interests, either short or long-term, to halt all contact with the appellant. The understanding I obtained from the submissions of counsel assisting the Court and counsel for the children is that G has enjoyed and benefited from contact with the appellant in the past. There has been no suggestion that G does not want contact with the appellant. Judge Twaddle recognised this: see [74] of the judgment. The concern is that over time, the influence of the appellant will cause G to want to end contact with the respondent. This fear was expressed by the respondent at the Family Court hearing and accepted by Judge Twaddle: see [90]
and [94] of the judgment. It seems to me, therefore, that if this risk of alienation can be abated without altogether stopping contact between the appellant and G, that option is more likely to be in the best interests of G than the present order. Whilst there are unchallenged findings pointing to the risk of alienation, the opportunities for G to suffer such emotional harm in a supervised setting will be minimal. Further, once the risk of alienation is mitigated, the benefits for G of continued contact with the appellant, however occasional, outweigh the risk of further litigation.
[79] The appellant has said that he is prepared to comply with supervised contact at the local office of Barnados. He is also prepared to fund this contact, if such funding is required. Counsel for the children now supports G having supervised contact with the appellant. Counsel assisting the Court submitted that, despite the appellant’s history, cutting all contact seems “radical and, on its face, flies in the face of the principles of the Act”. I agree with this submission. U v Q shows that supervised contact need not be a short-term option. It can remain in place until less restrictive contact becomes possible, or, alternatively, any deterioration in the manner of the contact warrants ending it.
[80] The respondent supports the “no contact” order made by Judge Twaddle. I accept the submissions for counsel assisting the Court that Judge Twaddle may have given too much weight to the views of the respondent. Further, one of the difficulties with this case is that the appellant has nearly always represented himself. Consequently, issues that could have been explored about the respondent have not been explored. I refer here to the submission from counsel assisting the Court that the appellant’s cross-examination of the respondent and Mr Coyle was poorly focussed and perfunctory.
[81] At the Family Court hearing, the respondent submitted that when it came to the day-to-day care of N, he should be placed temporarily with a foster family while he received “an extended period of counselling to help him deal with the conflicting information and messages his father has given him”. This submission was made knowing that N wanted to live with the appellant, had more than once run away from living with the respondent, and was at the time of the Family Court hearing almost
14 years old. It was an unrealistic submission to make, and Judge Twaddle
recognised this when he rejected it and placed N in the appellant’s day-to-day care. N’s expressed wish to live with the appellant has been found to be attributable to his alienating influence. Nonetheless, I find it somewhat surprising that the respondent would rather N live temporarily with a foster family against his wishes, which would have entailed a risk of N running away from living with them, than for N to live with the appellant. Similarly, the respondent wanted the appellant’s conduct with G suspended indefinitely unless or until he could demonstrate that he had genuinely changed his behaviour. This stance is also unrealistic as it gives insufficient weight to the fact that G might want to have contact with the appellant, and that, if at all possible, it would not be in G’s best interests to prevent contact between her and the appellant indefinitely. Indeed, to attempt to deny G all contact with the appellant indefinitely would seem to me to risk provoking a reaction in G, as she ages, that would see her reach out for contact with the appellant, whether it was then permissible or not.
[82] The appellant has undoubtedly been difficult and confrontational over the years; he accepted as much at the appeal hearing. Nonetheless, the dynamics between these parties cannot have been helped by the stance the respondent took in the hearing before Judge Twaddle in the Family Court. In my view, they each have to work on modifying their behaviour if they are to act in the best interests of their children.
[83] Against the above background, I consider that a six month period of fortnightly supervised contact for two hours at the local Barnados office should occur. Whether the supervised contact extends beyond that term, and if so for the same length of time or longer; or there is a change to unsupervised contact; or all contact is brought to an end will depend very much on how the appellant engages in the supervised contact over the six month period. At the end of that period, either party has leave to apply to the Court to vary the order.
[84] I also consider that a condition under s 48(5) should be attached to the contact order prohibiting either parent from speaking or writing about the other parent, or any member of their family or friends in a negative or derogatory nature in the presence of G, or to G. Such an order was used in SA v JM [2012] NZFC 3246 at
[18(viii)]. In that case, Judge Burns in the Family Court accepted the opinion of the psychologist that it was “the worst case of alienation” the psychologist had seen: (at [5]). Yet the mother, who was the alienating parent, was permitted supervised contact at Barnados.
[85] To the extent that the order I propose will allow for a further application to the Family Court regarding contact with G at the expiry of the six month period. For the avoidance of doubt, I also vary the order made by Judge Twaddle prohibiting the filing of any further applications with respect to parenting or guardianship issues relating to G within two years of his judgment.
Result
[86] The appeal against the order denying the appellant all contact with G for a period of two years is allowed. That order is set aside. In its place I order that:
(a) The appellant is to have supervised contact with G once a fortnight for a period of two hours at the local Barnados office;
(b)The above order is to remain in place for six months, after which time the parties have leave to apply to the Family Court for further orders in relation to contact with G; and
(c) The parties also have leave to return to this Court to resolve any issue regarding the appointed day or time of the supervised contact, or if they are unable to resolve those issues between themselves.
[87] The appellant’s decision to abandon the points on appeal relating to the other orders made by Judge Twaddle means that the balance of the Family Court orders remain in force.
Duffy J
Counsel: S R Jefferson QC, Auckland
Solicitors: Quin Law, New Plymouth
Govett Quilliam, New Plymouth
Copy To: Appellant, New Plymouth
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