KP v AZ
[2020] NZHC 1366
•17 June 2020
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 judgments/
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE
CIV-2019-441-000003
[2020] NZHC 1366
BETWEEN KP AS LITIGATION GUARDIAN FOR THE CHILD
Appellant
AND
AZ
Respondent
AND
FK
Interested party
Hearing: 6 March 2020, 9 June 2020 Appearances:
E J Lewes for Appellant
R Buchanan for Respondent L M Laugesen for the Child S E Hughes for Ms K
Judgment:
17 June 2020
FINAL JUDGMENT OF GRICE J
Interim orders
[1] On 21 February 2020 allowing an appeal from the Family Court I made interim parenting orders and an order for return of M, the subject of the appeal, from Australia.1 He was then aged 14 years. He is now 15 years of age and settled back into his high school here.
1 K v Z [2020] NZHC 1340.
KP v AZ [2020] NZHC 1366 [17 June 2020]
[2] M was determined to return to New Zealand. He had grown up here in the day to day care of his mother. M had left New Zealand to live with his father in Australia against his wishes pursuant to orders of the Family Court made on 9 October 2019.
[3] Mr Z who, throughout has had M’s interests at heart, is resigned to this Court’s decision on appeal, but remains concerned to ensure counselling that had been agreed upon would be supported by Ms K.
Appeal
[4] I allowed the appeal and made final parenting orders on 21 February. However the guardianship order was interim pending an update from the lawyer for the child and finalisation of the counselling arrangements for M. The court-appointed psychologist who provided an updated report for the hearing, considered it important that an appropriately qualified psychologist with a tailored brief be arranged before final orders were made. Mr Z has agreed to fund those arrangements.
[5] The COVID-19 lockdown were imposed shortly before these arrangements could be finalised. Ms Laugesen, counsel for M, has since provided an update on M’s position and the arrangements for counselling. The parties have filed a joint memorandum setting out the agreed terms of the counselling.
[6] Ms Laugesen in her updated report advises that M has settled back into his environment and is working hard to catch-up at school. He has found the school supportive and is happy to be back. Reports indicate that he is more relaxed now following his return and the end of the litigation. He has had input into the brief for counselling but has indicated that he does not envisage including his father in counselling sessions at present.
[7] I am now in a position to issue a final judgment on the matter on the basis of the updated material and agreement on the counselling brief and arrangements.
[8] The reasons for allowing the appeal2 were set out in my interim judgment of 21 February 2020.3 I summarise those as follows.
Summary
[9] The lack of an updated psychological report did not allow the judge to properly evaluate the principles which must be considered under s 5 of the Care of Children Act 2004 (COCA). The updated psychological report which was obtained for the purposes of appeal provided new evidence for this Court that indicated that at the time of the Family Court hearing moving M to Australia would put his safety at risk. That risk had become even more acute by the time the matter was dealt with on appeal. For that reason a stay of execution of the Family Court orders was made by me on 16 December 2019.4 By that time M had run away from his father’s home in Australia, had been charged with criminal offences and was being held in a youth justice facility in Sydney.
[10] Ms KO, the court appointed psychologist, was of the view that there was a high-risk M would run away again, would put himself in danger and might harm himself if required to remain in Australia with his father. That was an immediate and acute safety risk.5 In addition, there was a risk of further psychological/emotional trauma if the intensive programme which was designed to deal with M’s alienation from his father was unsuccessful. Ms KO was of the view that such an event would significantly add to the risk of long-term psychological harm to M particularly when coupled with a number of established Adverse Childhood Events that M had already been exposed to.
[11] The Judge made no error in his evaluation that M’s care, development and up- bringing which was primarily the responsibility of the parents was not being met appropriately.6 The required ongoing consultation and cooperation between M’s parents as to his care, development and upbringing were not going to occur as matters
2 Z v K [2019] NZFC 8290.
3 KP v AZ [2020] NZHC 1340.
4 K v Z [2019] 3350.
5 Care of Children Act 2004, s 5(a).
6 Section 5(b).
stood at the time of the Family Court hearing.7 While M was entitled to a relationship with both of his parents and their family groups, that was not possible. The Judge was faced with a stark choice here between the parents. The Judge hoped M would strengthen his relationship with his father’s family by going with his father to Australia. The Family Court recognised that move would inevitably weaken the immediate relationship with his mother and his mother’s family.
[12] The stark choice remains. However the Judge did not have the benefit of psychological evidence which was available to me and indicated that the move to Australia had jeopardised M’s safety and requiring him to stay would put him at high risk.
[13] I concluded that the safety of M physically and psychologically weighed in favour of his return from Australia. In addition the disruption of M’s continuity of care, and the removal from the environment in which he had been brought up as well as the importance to him of his school and friends,8 supported his return to New Zealand in the circumstances. The decision that saw him return to his mother’s care and his school in New Zealand accorded with M’s wishes which had not changed since the hearing in the Family Court. He clearly and repeatedly articulated them. They had weight given his age and stage of development.
Orders
[14]I made final orders:
(a)allowing the appeal.
(b)a parenting order that M return to New Zealand to his mother’s care and attend his former high school.
(c)Mr Z to have contact with the child as was agreed between the father and M.
7 Sections 5(b) and (c).
8 Care of Children Act 2004, s 5(d).
[15]I make a final guardianship order that M continue to reside in New Zealand.
[16]I make the following directions.
Directions as to Counselling as follows:
(a)Dr D, a Registered Clinical Psychologist will be engaged to conduct therapy for M for a period of six months. Dr has agreed to undertake this therapy. If Dr D is unavailable to provide the therapy for the six months or any continuation of it, she will nominate a replacement counsellor following consultation with M and both his parents.
(b)The respondent father agrees to fund such therapy at the rate as agreed.
(c)The brief for the psychologist is as follows:
(i)assist M to build resilience and to learn how to understand different perspectives and viewpoints;
(ii)provide such psychological support and mentoring as M may require;
(iii)provide M with support to process and come to terms with the extensive litigation which he has experienced over the course of his life and his engagement in this;
(iv)develop strategies to move on from this litigation; and
(v)for therapy to include the participation of other family members if the psychologist (together with M) believe it is beneficial.
(d)M’s guardians will receive reports of therapeutic outcomes (and strategies built) to allow M to be supported in his development. These reports should take into account therapist/patient confidentiality. The content is at the discretion of the counsellor.
(e)Dr D will be sent the following documents:
(i)Decision of the Family Court dated 9 October 2019;9
(ii)Section 133 Report of Kathy Orr dated 15 January 2020; and
(iii)Decision of Grice J dated 21 February 2020 and Minute of Grice J dated 9 March 2020.10
(f)I direct the above documents together with this judgment be released to Dr D for the purposes of providing counselling to M. They are not to be used for any other purpose.11
[17] KP, M’s litigation guardian, will use her best endeavours to support M’s attendance at therapy in terms of the above directions.
Ms K’s concerns
[18] Ms K indicated that she preferred that Dr D was not provided with the Family Court judgment of 9 October 2019. She said that she considered it “one-sided” and that she had had no right of response. As the appeal was from that judgment, it is appropriately included in the material that Dr D has available to her.
[19] Ms K had the opportunity to participate in the appeal as an interested party. The judgment on appeal will provide any balance necessary. In addition as will be apparent from my judgments I am of the view that the judge was correct in his findings of a number of the factors, including the effects on M of the behaviour of Ms K. The judgment also provides a detailed history of the litigation concerning M and his siblings.
9 Z v K, above n 2.
10 KP v AZ [2020] NZHC 1340 and P v Z Minute of Grice J, 9 March 2020 (release of material to psychologist).
11 If further material is required by the counsellor an application may be made to the court under r 429 of the Family Court Rules 2002 for documents held in the Family Court or r 11 of the Senior Courts (Access to Court Documents) Rules 2017 for documents held in the High Court.
[20] Ms K also was concerned about her obligations to provide Mr Z with information concerning M. She feared that her provision of an undertaking to support the counselling, if M refused, might be the subject of further litigation.
[21] In the circumstances all parties will need to support M in getting the most from the counselling. He is now 15 years of age. In the near future the court will have no jurisdiction over him. The effects on M and the other children of the lengthy litigation was referred to in the psychological report. Further litigation over M and the counselling would likely exacerbate the damage already done. In any event, given M’s age it is unlikely either party will instigate further litigation. It is also important that Ms K does all she can to support M in taking advantage of the opportunity to engage in counselling tailored to his needs.
Costs
[22]The parties agree that no order should be made for costs.
[23] In relation to the costs of the lawyer for the child on appeal I am of the view that no party should be made to contribute costs.
[24] In the case of Ms K she did not pursue to appeal. The appeal in the end was pursued by M through his litigation guardian and has been successful. Mr Z funded the costs of travel for the psychologist to enable her to travel to Australia on an urgent basis to prepare the report for the Court over the Christmas period. In addition he is funding the counselling for M which is a matter of priority.
[25] In these circumstances it is not appropriate that a requirement to fund the lawyer for the child’s costs should be made.12
Grice J
12 Care of Children Act 2004, s 135A(4) and (5).