KP v AZ
[2020] NZHC 1340
•21 February 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 1340
BETWEEN KP AS LITIGATION GUARDIAN FOR THE CHILD
Appellant
AND
AZ
Respondent
AND
FK
Respondent
Hearing: 18 February 2020 Appearances:
E J Lewes for Appellant
R Buchanan for Respondent
L M Laugesen and for the Child S E Hughes for Ms K
Judgment:
21 February 2020
JUDGMENT OF GRICE J
(Guardianship (return to New Zealand) and interim parenting orders)
Table of Contents
Para No.
Introduction [1]
Appeal [10]
Grounds of appeal [14]
Fresh material on appeal [16]
Application by Mr Z to adduce further evidence [24]
Leave to appeal [32]
KP v AZ [2020] NZHC 1340 [21 February 2020]
Interested party – Ms K [36]
Approach on appeal [41]
Legal principles in COCA matters [43]
Effect of intervening events on the appeal [48]
Lawyer for child [73]
The report of the lawyer for the child [78]
M’s wishes [87]
Report of Ms KO dated 15 January 2020 [89]
Family Court judgment [112]
Submissions by litigation guardian for M [124]
Present position [148]
Consideration of s 5 principles [162]
Mr Z’s position [171]
Conclusion [174]
Lawyer for the child [185]
Introduction1
[1] This is an appeal from a decision of the Family Court delivered on 9 October 2019.2 Orders were made under the Care and Protection of Children Act 2004 (COCA) relating to M who will shortly turn 15 years of age. His parents are Mr Z, the respondent, and Ms K who is an interested party in this appeal.
[2] M is the youngest of four children of Ms K and Mr Z. Following their separation over a decade ago, all the children remained with Ms K. L is M’s oldest sister who moved to Australia and into her father’s care in 2016. The two other children, apart from M, are now over 16 years of age. The children have been the subject of numerous earlier proceedings in the Family Court but the three older children are now outside its jurisdiction. M’s older brother is away from home at university. The two New Zealand-based children are aligned with their mother in the conflict between their parents as is M.
[3] In October 2019 the Family Court ordered that M be removed from his mother’s (Ms K’s) care in New Zealand to his father’s in Australia. This was based on the Judge’s findings that Ms K had severely alienated M from his father and there
1 Delivered orally on 21 February 2020 in short form. The written decision has been edited and footnoted before distribution.
2 Z v K [2019] NZFC 8290 (“Z v K”).
was an opportunity for intensive counselling for M in Australia which might “deprogramme” him.
[4] Following the making of the 2016 orders M was taken to Australia. His relocation was achieved with the assistance of a private investigator hired by Mr Z and the police. The removal of M from his home and from New Zealand was fraught due to M’s resistance. He initially refused to get on the plane to Australia.
[5] Once in Australia and living with his father M ran away to his maternal aunt’s home near Sydney, after only one therapy session. He says he contacted his aunt on his own initiative although it appears he must have had some direct or indirect support to do so and to get to her home.
[6] M was forcibly removed from his aunt’s home by the police enforcing the New Zealand Family Court orders and returned to his father’s home. As a result of the scuffle when M resisted removal from his aunt’s home, he was detained in a Youth Justice facility in Sydney and charged with assault of the two police officers who had removed him. Subsequently, M preferred to remain in detention even though he was offered the opportunity to go back to his father’s home.
[7] M was detained at the Youth Justice facility in Sydney from 22 November 2019 until 16 December 2019 when interim orders were made by this Court staying the execution of the October 2019 orders.3 By consent M was permitted to move to his maternal aunt’s home near Sydney where he spent Christmas and remains to the present time. The criminal charges in Australia against M have now been dropped.
[8] Directions made on 16 December 2019 by this Court included the appointment of Ms KO, a psychologist to prepare an urgent updated psychological assessment of
M. This was with the consent of all parties. Ms KO had had previous involvement with the family.
[9] Ms KO prepared a psychological report dated 15 January 2020 which is now before the Court. Ms KO noted she had earlier prepared reports in relation to the
3 K v Z [2019] NZHC 3350.
family for the Family Court. Those reports were dated 18 November 2011 and 15 November 2016 and related to earlier COCA proceedings between Mr Z and Ms K.
Appeal
[10] M continues to reside with his aunt in Australia but he wants to return to his mother, go back to his previous high school and remain in New Zealand. He has not attended school since October 2019 when he went to Australia.
[11] Ms K, M’s mother, initially filed an appeal but abandoned that appeal. Her appeal was largely based on the fact that the Family Court hearing proceeded on the basis of formal proof and she had been excluded from participating in the hearing. Ms K was of the view that this was a breach of natural justice and of her right to be heard under the New Zealand Bill of Rights Act 1990 as the hearing had taken place without her participation.
[12] While Ms K was present during part of the hearing she was sent out of the courtroom when L, M’s oldest sister, gave evidence. The hearing was a formal proof hearing, but the Judge heard evidence from three witnesses for Mr Z. The witnesses were cross-examined by the lawyer for the child. There was no updated psychological report before the Court as one had not been ordered. The earlier psychological reports prepared in relation to the children were before the Judge. The most recent of those was dated 2016.
[13] Dr P is acting in this appeal as litigation guardian for M. On M’s behalf she lodged a notice of appeal against the Family Court decision. She sought a stay of proceedings on 16 October 2019. The stay was refused.4 A review of that refusal was sought when M was taken to the Youth Justice facility in Australia but again was unsuccessful.5 When the appeal came before the Court for hearing on 16 December 2019, all parties agreed that the matter could be dealt with on an interim basis to facilitate M moving from detention to his aunt’s home near Sydney. In addition directions were made for a psychological report and for the lawyer for the child to
4 K v Z HC Napier CIV-2019-441-3, Minute of Clark J, 15 November 2019 (“Minute of Clark J”).
5 K v Z HC Napier CIV-2019-441-3, Ruling of Clark J, 3 December 2019.
provide an updated report. The matter was adjourned to an early date for final determination.
Grounds of appeal
[14] The notice of appeal filed by Dr P on behalf of M seeks that M reside with his mother and sister and continue to attend his high school. It says that he does not wish to move to Australia or live with his father, that he was happy and safe in New Zealand, loves his mother and completely rejects the accusation that she is in any way abusive. He says he rejects that the decision reached by the Judge is in his best interests and says his views have “not been listened to”. The grounds allege that the Family Court hearing on 8–9 October was a gross miscarriage of justice in that it prevented “M’s mother speaking or responding at all, and ignored M’s repeated attempts to tell the Court via his lawyer and clinical psychologist that he did not wish to be in the custody of his father or be uprooted to Australia”. The relief sought is a reversal of the decision of the Judge.
[15]Ms Lewes summarised the arguments on appeal for M as:
(a)The finding of “alienation” should be modified to a “hybrid case”; M had no attachment to his father as his father left when M was two years of age and no attachment was subsequently established. Therefore, there can be no alienation.
(b)There are elements of justified refusal to go to his father.
(c)No independent information was before the Judge to indicate what the father’s environment was like in Australia nor was there any psychological evidence on how M would cope with the relocation and change of environment.
(d)The Judge underestimated the level trauma that the move would have on M as evidenced by the fact that M had chosen to stay in a juvenile detention centre rather than be placed back in his father’s care. Any
move back to his father’s care was going to require further force and restraint which will expose M to further risk.
(e)M’s views were ignored.
Fresh material on appeal
[16] I received the following fresh material which had not been before the Family Court:
(a)Affidavit of M dated 25 November 2019;
(b)Psychological Assessment Report by Ms KO dated 15 January 2020;
(c)Report of Lawyer for Child (Ms Laugesen) dated 31 January 2020; and
(d)Handwritten letter to the Judge from M.
[17] Counsel all agreed that the lawyer for the child’s report with the factual update in relation to events since the Family Court made its decision was accurate.
[18] M’s affidavit was filed before the interim hearing in December 2019. It sets out his wishes and the reasons for them. It also outlines the events that occurred following the October 2016 decision from his point of view and how that led to his detention in the Youth Justice facility. His letter to me was written in January 2020.
[19] Mr Z reserved his position on whether leave should be granted for M’s affidavit and letter to be admitted as further evidence on the appeal. Ms K and the lawyer for the child supported the admission of the evidence.
[20]I allowed M’s evidence to be admitted by way of affidavit on the basis:6
(a)there were special reasons for hearing M’s evidence;7
6 I include the letter from M in this. It was handwritten and no objection was raised as to its authenticity.
7 High Court Rules 2016, r 20.16.
(b)the material in the affidavit was fresh in that it related to matters that had arisen after the decision in October 2019; and
(c)the affidavit contained particularly cogent and relevant evidence including M’s wishes as at December 2020 (and in the letter as at January of this year) and the reasons behind them.
[21] In my view the factual matters as narrated by M and his view of events, his wishes and the reasons for them are directly relevant to the determination of this appeal.8
[22] Ms KO’s report was prepared following interviews with M in Australia. She also received input from Ms K and Mr Z. She made inquiries of providers of the Australian Family Bridge programme. That programme had reported its success in the treatment of children alienated from one parent by the behaviour of the other. That was the programme or at least the type of programme that the Family Court Judge had in mind that M should attend when in Australia. The material the Judge relied on in that regard was contained in submissions from counsel and research papers on those types of programmes, and his own experience in the area.
[23] Ms KO was extensively cross-examined at the appeal hearing on not only her 2020 report but her earlier reports of 2011 and 2016.
Application by Mr Z to adduce further evidence
[24] Following cross-examination of Ms KO, Mr Buchanan on behalf of Mr Z made an application for leave to adduce further evidence from Mr Z. The proposed evidence from Mr Z was not tendered in affidavit form9 but Mr Buchanan explained that it would cover the nature of the treatment offered by the Family Bridge programme in Australia about which Mr Z had made inquiries, as well as Mr Z’s comments on the events that unfolded following M being uplifted and sent to Australia.
8 Rule 20.16(3).
9 High Court Rules 2016, r 20.16(4) requires further evidence to be given by affidavit unless the court otherwise directs.
[25]The application was opposed by the other parties.
[26] I declined Mr Z’s oral application for leave to adduce oral evidence. First, the application was made partway through the hearing without notice and without any clear indication of the extent of Mr Z’s proposed evidence. Secondly, Mr Z’s evidence about the Family Bridge programme would be based on what he had been told about it. The programme was referred to by Ms KO who had spoken to providers of the programme. She is an expert in the area and is best placed to comment on it. Mr Z’s evidence in that regard would be second-hand and unlikely to add anything further of assistance to the Court. In addition, the factual narrative from M’s point of view had already been provided in chronology form by Ms KO. All parties had already agreed that the lawyer for the child’s updating report was accurate.
[27] M has given his views on what happened and why he has appealed. He is the person whose best interests I must consider. Further evidence on the details of the events or how the matter was viewed by Mr Z (or indeed by Ms K or Dr P) would perpetuate the litigation and the conflict for no good purpose.
[28] It is likely, Mr Z if he gave evidence would be cross-examined by the lawyer for the child. Ms K and Dr P might also take the view that they should be entitled to respond. Embarking on that process and all that would entail would add considerably to the length of the hearing of the appeal.
[29] In my view further oral evidence from Mr Z would not be relevant nor material and would open up the possibility of further considerable delays. Time is of the essence in this case. M’s future must be finalised urgently. He has been out of school since October 2019. Since then he has moved from his New Zealand home environment where he has been for 12 years to his father’s home in Australia, to a youth detention facility in Sydney and then to his maternal aunt’s home in Sydney. While the parties disagreed on what the outcome should be they all agreed there needed to be finality for M’s sake.
[30] Allowing further evidence would inevitably delay matters. That factor alone weighed heavily against allowing further evidence of the nature that Mr Buchanan outlined.
[31]For those reasons I decline leave for further evidence to be adduced by Mr Z.
Leave to appeal
[32] Counsel agree that leave was not required for the appeal against the parenting orders made under s 48 of COCA but that leave is required to appeal the guardianship decision made by the Family Court under s 46R. The guardianship decision was to relocate M to Australia. Counsel agree that Mr Z’s initial application was a COCA application to discharge the existing parenting order and for a new parenting order under s 48 of COCA. But as the outcome included a new order to settle the dispute between guardians (or a relocation dispute) under s 46R leave is required for the appeal against that order.
[33] The issue had been earlier raised in a case management conference,10 but was left to be determined by the trial Judge. Mr Z neither opposed nor supported the leave application. Other counsel indicated consent to the application.
[34] There is no doubt that there is a guardianship issue on appeal which must be dealt with in this appeal. M’s relocation to Australia was a guardianship matter and it is at the heart of this appeal.
[35] In those circumstances, I grant leave to appeal. In this case of relevance is the fact that important issues are raised on the appeal with long term implications for the child. There is a serious issue to be tried which directly concerns the best interests of the child.
10 Minute of Clark J, above n 4.
Interested party – Ms K
[36] Ms K participated in the appeal as an interested party. She abandoned her appeal days before the interim hearing in December 2019. This followed a refusal of legal aid in relation to her appeal.
[37] Leave for Ms K to participate as an interested party was opposed by Mr Z. He pointed to the comments in the legal aid application that her appeal had little merit. He also pointed to the fact the abandonment came late in the piece and there had been a number of interlocutory applications brought by Ms K.
[38] Mr Z says there were costs incurred and Ms K has not paid security for costs in the sum of $2,390 which had been ordered. He said granting her leave to participate as an interested party would be a backdoor means of her avoiding those obligations.11
[39] As I noted in granting Ms K leave, an underlying policy reason for the limit on parties is to ensure that proceedings are able to be dealt with efficiently. In this case, my view was that it was appropriate that Ms K be granted leave to participate as an interested party. She is a person who would be affected by any judgment given. She was a person whose presence before the Court was both necessary and needed in order to justly determine the issues.
[40] Nevertheless, I granted leave on conditions. I noted leave to participate as an interested party could not be used as a device to get around the rules governing appeals. I limited Ms K’s participation as an interested party. The appeal would focus on the grounds of appeal put forward by M rather than the process matters that Ms K saw as interfering with her own rights. I also directed she could be liable for costs in the usual course for an appropriate amount in the event the appeal was not successful and if it was appropriate to award costs.
11 Minute of Clark J, above n 4.
Approach on appeal
[41] The parties agree the appeal is a general appeal which proceeds by way of rehearing.12 The principles which apply are well known and set out in Austin, Nichols & Co Inc v Stichting Lodestar.13 That requires the appellant to satisfy this Court that it should differ from the Family Court decision. However, this Court is required to make its own assessment on the merits of the case. While it is entitled to adopt the reasons of the first instance decision maker to assist it in reaching a conclusion, the conclusion is one for the appellate court.
[42]In relation to COCA matters Duffy J put it this way:14
…I must accept responsibility for determining what is in the best interests of the child. It also means that I should not confine myself to focusing on whether or not the Judge has committed an error of law or some procedural error in reaching his judgment.
Legal principles in COCA matters
[43] The child’s welfare and best interests in the particular circumstances is the first and paramount consideration in any proceeding involving the guardianship and the day-to-day care or contact with a child.15 The Court, in considering the welfare and best interests of the child in the particular circumstances, must take into account the principle that decisions affecting the child should be made and implemented within a timeframe that is appropriate to the child’s sense of time and also the principles and factors set out in s 5.16
[44] The Court may also take into account the conduct of the person who is seeking to have a role in the upbringing of the child to the extent that that conduct is relevant to the child’s welfare and best interests. This featured as an important issue in this case.
[45]The principles set out in s 5 of the Act are:
12 Care of Children Act 2004, s 143(4) (COCA) and District Courts Act 2016, s 127.
13 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
14 B v B [2008] NZFLR 1083 (HC) at [44].
15 Care of Children Act 2004, s 4.
16 Section 4(2).
5 Principles relating to child’s welfare and best interests
The principles relating to a child’s welfare and best interests are that—
(a)a child’s safety must be protected and, in particular, a child must be protected from all forms of violence (as defined in sections 9(2), 10, and 11 of the Family Violence Act 2018) from all persons, including members of the child’s family, family group, whānau, hapū, and iwi:
(b)a child’s care, development, and upbringing should be primarily the responsibility of his or her parents and guardians:
(c)a child’s care, development, and upbringing should be facilitated by ongoing consultation and co-operation between his or her parents, guardians, and any other person having a role in his or her care under a parenting or guardianship order:
(d)a child should have continuity in his or her care, development, and upbringing:
(e)a child should continue to have a relationship with both of his or her parents, and that a child’s relationship with his or her family group, whānau, hapū, or iwi should be preserved and strengthened:
(f)a child’s identity (including, without limitation, his or her culture, language, and religious denomination and practice) should be preserved and strengthened.
[46] COCA requires the child’s views to be taken into account and the child must be given reasonable opportunities to express views on matters affecting him or her. Any views the child expresses (either directly or through a representative) must be taken into account.17
[47] The focus of this case was on alienation and its effect on the welfare and best interests of M. The main basis for the Family Court’s decision was that Ms K was responsible for alienating M from his father to such an extent that M’s future development and mental health called for a change in the parent carer and for no contact with Ms K until at least M had settled with his father.
Effect of intervening events on the appeal
[48] Matters have moved on considerably since the Family Court made its decision in October 2019 that M be removed from New Zealand and placed in the care of his father in Australia.
17 Care of Children Act 2004, s 6.
[49] I have outlined the events that followed that decision. In summary M has proved intractable in his desire to live with his mother and go back to school in New Zealand. He says that this is his independent wish and he does not want any further contact with his father.
[50] M was uplifted by the police and put in a detention facility but preferred to stay there rather than risk being returned to his father despite a proposal he be bailed to his maternal aunt’s place in Sydney. This was because he believed his father would seize him again by force.
[51] M would only leave the detention facility following the making of the interim order for stay and the orders by this Court that permitted him to move to his maternal aunt’s home. In addition, at that time written undertakings were executed into by all parties to support that arrangement in a document filed with the Court entitled “Family Action Plan for Change”.
[52] It is apparent that M must have had assistance from adults supporting his mother in order first to resist going in to his father’s care and secondly in running away and reaching his aunt’s home. For instance, despite not having his mobile phone he knew his aunt’s contact details and managed to get to her home in a country and location that he was unfamiliar with. Others clearly assisted him. Ms Laugesen also described the resistance put up by M with adults supporting him when the police attempted to remove him from his aunt’s home.
[53] With the availability of technology and M’s susceptibility to his mother’s influence as well as his blind loyalty to her it was inevitable that he would get support from somewhere. It is almost impossible to prevent that or keep M sufficiently confined to participate in any programme or therapy.
[54] Ms KO was of the view that due to M’s rigid thinking and his determination, whatever the cause, if he is not allowed to return to New Zealand to his mother he will likely attempt to run away again, may engage in self-harming behaviour and is likely put himself in physical danger. Ms KO recognised M’s mother’s significant role in the alienation.
[55] The most effective “deprogramming” treatment, Ms KO said, would be the Bridge Family programme. She noted its success even with severely alienated children.
[56] Research relating to that programme was before the Family Court Judge. The lawyer for the child put an extensive article on this research in her submissions on appeal. Research by Warshak18 reports that reunification therapy, designed to transform children’s polarised views of their parents into a more balanced and realistic view of each parent19 has previously had a poor track record with severely alienated children who refused all contact with the rejected parent and who repeatedly left the rejected parent’s home during the scheduled time together. However the research paper said recent studies based on an educational alternative for alienated parent/child relationship called “Family Bridges” was promising. The report said that for alienated children from 12 families who had been alienated for a period of more than two years, the restoration of a positive relationship with the rejected parent by the end of the workshop showed considerable, but not universal, success.20 The workshop required the participation of the rejected parent and one or more of the alienated children. The reported success rate was extremely high and in particular the alienated children’s behaviour was improved significantly.
[57] However, in this case Ms KO was of the view that it was more likely than not that M would be in the group of failures that the research referred to.
[58] Ms KO’s views were reached after personally interviewing M on a number of occasions and reviewing his behaviour since the October 2019 decision. She was also firmly of the view that his recent past behaviour was a strong indicator of his future behaviour. In addition, Ms KO had the benefit of speaking to staff at the Family Bridges programme and has personally had considerable experience and expertise in the area of family dysfunction and alienation. The programme may well accept M but she holds significant fears for what damage would be done to M if the programme was unsuccessful which she felt would be the case.
18 Richard A Warshak “Reclaiming Parent-Child Relationships – Outcomes of Family Bridges with Alienated Children” (2019) 60(8) Journal of Divorce and Remarriage 645.
19 At 646.
20 Warshak, above n 19, at 656.
[59] Ms KO, in the course of cross-examination also confirmed the Judge’s view that Ms K’s influence had contributed significantly to M’s alienation from his father. However, she was at pains to emphasise that this was a nuanced and complex issue and the mother’s influence was certainly not the only factor. It related to the resilience of the child and a combination of other factors about which she went into detail.
[60] Mr Buchanan says that the events that have occurred since October 2019 should not be taken into account. In support of that submission, he pointed to a decision of Mallon J in AB and BC v Chief Executive of Social Development.21 That involved an interlocutory application in relation to an appeal from a Family Court decision concerning children in the care of Child Youth and Family Services. The Family Court had decided to reduce the amount of contact that the parents had to the eight children. The interlocutory application was for leave to adduce further evidence on appeal by way of a report from a psychologist. The application was dismissed.
[61] In that case the Judge noted that if she had been persuaded that a psychologist would assist in the determination of the appeal she would have been open to ordering it even if the parties should have requested it at the time of the Family Court hearing.22 However, she did not consider that the report from the psychologist would assist the Court as to whether the Family Court had erred as alleged by the parents.23 Even then she noted that a new report might be relevant to a remedy if the Family Court had erred in the respects alleged but that could be dealt with later if the appeal was successful. The Judge noted that she had received an updated memorandum from the lawyer for the child to inform the Court of the individual positions of the children for the purposes of the appeal.24
[62] At the same time, Mr Buchanan acknowledged that this Court on appeal is obliged to determine as its paramount consideration what is in the best interests of M. In my view this means that the Court should not confine itself only to focussing on whether or not the Judge has committed an error of law or some other procedural error
21 AB and BC v Chief Executive of Social Development [2012] NZHC 3168.
22 At [15].
23 AB and BC v Chief Executive of Social Development, above n 21, at [16].
24 At [18].
in reaching his judgment.25 To assess the child’s best interest the Court must take into account factual circumstances here that have occurred since the October 2019 hearing together with fresh reports and the material that I now have before me.
[63] The judgment in B v B26 makes it clear that in cases involving the children the inquiry goes beyond simply whether the original judgment was right or wrong in application of the law, but extends to an inquiry about what outcome is in the best interests of the child.
[64] In Finn v Poole27 Moore J readily examined the factual matrix before him which was different to that which had been before the Family Court Judge. Moore J said:
[73] Because this is a general appeal and is by way of rehearing I am required to make my own assessment of the merits of the case. I am permitted to adopt the reasons of Judge de Jong in reaching my conclusion but because my task is to determine what is in the best interests of the children the focus should not be on whether Judge de Jong erred.
[74] In this case these principles deserve emphasis. This is because the position in relation to each child, particularly T, has changed since Judge de Jong heard the evidence and delivered his decision. I have heard further evidence from both parents. In fact, consistent with the fluidity and evolving nature of this case, I have heard from both parents twice. This is because both parents gave evidence on the appeal in August 2014 and, again, on its resumption in May 2015. Thus the factual matrix which is now before me is different from that which confronted Judge de Jong in December 2013. This is hardly surprising given the age and development of the children involved.
[75] For these reasons it is appropriate for me to embark on a fresh and separate analysis of the respective positions of the children although, of course, I am assisted in that task by the helpful observations of Judge de Jong at first instance and the submissions of counsel for which I record my gratitude.
[65] Ms Lewes also referred me to the decision of S v O28 where Wild J made the following comments on allowing updating evidence and material which might assist in predicting behaviour. He said:
[64] Whether further evidence comes in on any appeal is an appeal- dependent decision for the Judge. The further evidence I heard served two
25 B v B, above n 15, at [44].
26 At [44].
27 Finn v Poole [2015] NZHC 1362 (“Finn v Poole”).
28 S v O [2006] NZFLR1 (HC), (2005) 25 FRNZ 256.
purposes. First, it brought the position up to date. Secondly, it gave me a grasp of the parties’ personalities – of the sort of people they are – which I would not otherwise have had. As Judge Callinicos observed right at the start of his judgment, cases of this sort involve predictive assessments of the way in which people are likely to behave in the future. Without an ability to “check” Judge Callinicos’ predictive assessment, absent some glaring in or omission from his decision, I do not see how this appeal could have any prospect of success. These comments are not to be taken as indicating that further evidence should always be permitted on an appeal of this sort. The granting of leave under r 716 will always be a case-dependent decision for the Judge involved.
[66] All counsel referred to the paramountcy provisions referred to in s 4 of COCA being the overarching best interests principle which applies to all proceedings under COCA.
[67] In my view the factual developments must be taken into account. It would contrary to the best interests of M if they were not. In addition, Ms KO’s report is an up-to-date psychological report on M. There was no up to date report before the Family Court Judge.
[68] Ms KO’s report was obtained with the consent of Mr Z. I understand he funded it, allowing for Ms KO to travel to Australia to interview M and report her findings to this Court. Similarly the lawyer for the child updated the Court and that update was received without objection.
[69] I have already set out my reasons for refusing leave to adduce further evidence by Mr Z. This appeal does not turn on the factual background as the parents see it. It is focussed on what is the best interests of M. This will be determined by the material that was before the Family Court and the updated material that I have before me.
[70] Importantly, the additional information from M reiterates that he will run away if he is put back with his father, that he has been liaising with his school in New Zealand about subjects he wishes to take and that this year he embarks on Year 11 as the first year of his New Zealand NCEA qualification. In addition, there appeared to be no disagreement in this Court that the older children have done well in their education and that it was important for M to also do well.
[71] The updated information is fresh, cogent, credible, material and relevant. I am entitled to take it into account in order to determine this appeal.
[72]I now turn to the report of lawyer for the child.
Lawyer for child
[73] M was throughout the hearing in the Family Court represented by court- appointed counsel.29 Ms Laugesen appeared in that role. She was appointed to continue in the role in the High Court appeal.30
[74]I set out her role under s 9B of the Family Court Act 1980 is as follows:
9BRole of lawyer appointed to represent child or young person in proceedings
(1)The role of a lawyer who is appointed to represent a child or young person in proceedings is to—
(a)act for the child or young person in the proceedings in a way that the lawyer considers promotes the welfare and best interests of the child or young person:
(b)ensure that any views expressed by the child or young person to the lawyer on matters affecting the child or young person and relevant to the proceedings are communicated to the court:
(c)assist the parties to reach agreement on the matters in dispute in the proceedings to the extent to which doing so is in the best interests of the child or young person:
(d)provide advice to the child or young person, at a level commensurate with that child’s or young person’s level of understanding, about—
(i)any right of appeal against a decision of the court; and
(ii)the merits of pursuing any such appeal:
(e)undertake any other task required by or under any other Act.
(2)To facilitate the role set out in subsection (1)(b), the lawyer must meet with the child or young person and, if it is appropriate to do so, ascertain the child’s or young person’s views on matters affecting the child or young person relevant to the proceedings.
29 Z v K [2019] NZFC 8290, Minute of Family Court, 7 June 2019 at [4].
30 Minute of Clark J, above n 4.
(3)However, subsection (2) does not apply if, because of exceptional circumstances, a Judge directs that it is inappropriate for the lawyer to meet with the child or young person.
(4)A lawyer appointed to represent a child or young person in proceedings may—
(a)call any person as a witness in the proceedings:
(b)cross-examine witnesses called by any party to the proceedings or by the court.
[75] Ms Laugesen was first appointed in relation to the four children of the family in July 2016. Her appointment continued through a series of COCA applications. The last psychological report under s 133 of COCA was in the Family Court at the end of 2016.
[76] Leading up to the October 2019 hearing Ms Laugesen had found it increasingly difficult to see the children without someone nominated by their mother present. The mother had expressed dissatisfaction with the way Ms Laugesen reported to the Court. The Judge referred to the interference by Ms K preventing both Ms Laugesen and the Judge from obtaining the views of M.
[77] Ms Laugesen read and explained the Family Court Judge’s decision to M. This occurred following the events which had led to M’s detention at the youth justice facility in Sydney.
The report of the lawyer for the child
[78] The updated factual information set out in the lawyer for the child’s report is accepted by the parties as accurate for the purposes of the appeal. It noted:
(a)M remained at the detention centre for a period of 24 days through November and December 2019.
(b)He engaged well at the centre and the staff noted that he was focussed and actively involved in finding out what was happening with the Family Court case. He contacted his lawyer and studied the information relevant to the case. He constantly tried to let all staff and
persons of authority know that he wanted to return to his home in New Zealand.
(c)M was concerned about missing schooling and getting behind in his learning. He attended a few days of school at the detention facility but the basic level of education offered did not meet M’s educational needs.
(d)M disclosed to staff at the centre the “trauma” which he felt in being held in his father’s care in previous weeks. A report was made to the Australian Community Children Services but nothing further has been heard on that.
(e)M moved to his aunt’s home on 16 December 2019 where he has continued to live with his maternal aunt and uncle and their children in Sydney. The family is aligned with his mother.
(f)His aunt reported M enjoyed the stay with her but it was clear to her that he remains stressed about the proceedings and wanted them to finish. From time to time he showed signs of distress such as appearing to have cried in the night and his appetite was up and down.
(g)His aunt reported that M was upset when his father emailed him and also when she gave his phone number to his father. Therefore his father had made no further contact.
[79] Ms Laugesen’s views as to what option might be in M’s best interests changed since the Family Court hearing and since the filing of her initial submissions before the December 2019 stay of execution hearing. Her position, before she received Ms KO’s updated psychological report in January 2020, was that the extreme therapeutic intervention of moving M into his father’s care and the provision of intensive counselling had not had a chance to show its effects before M ran away. Therefore it was appropriate to continue on that course. Ms Laugesen was at that stage of the view that M should remain in his father’s care but with a court review of the orders following a set period of time.
[80] However, since receiving Ms KO’s January report Ms Laugesen considers M’s best interests are better served by returning to New Zealand and his school. She notes M is cognitively competent but as a result of ongoing parental conflict he has suffered emotional/psychological harm. Ms Laugesen points to Ms KO’s observations of M’s behaviour or traits indicating such harm:
(a)cognitive inflexibility;
(b)less than secure psychological attachment to both parents, including his mother;
(c)lack of resilience and a sense of entitlement; and
(d)trauma.
[81] Ms Laugesen goes on to say that at the time of the October 2019 hearing there was little up-to-date evidence to suggest that M was exhibiting negative symptoms and/or behaviour associated with being at risk following exposure to parental conflict and alienation.
[82] Ms Laugesen also noted the extreme actions of M since the October Family Court hearing. In particular she points to the fact that he had placed himself at physical risk by running away, resisting the police and being detained in Australia. She noted M refused bail for fear of returning to his father despite having to spend 24 days in a youth detention facility. She noted that this behaviour showed M’s psychological vulnerability and the extent to which he will go to remain in his mother’s care and refuse contact with his father and his oldest sister, L.
[83] It also showed the inability of Mr Z to provide the required interventions whatever the reasons for that. Ms Laugesen said she did not doubt the genuine attempts or good intentions of Mr Z to assist M to return to his care but the reality was that M’s psychological needs and wishes have not been altered by the initial psychological therapeutic intervention which the father had arranged. The indicators suggest it is unlikely that any more interventions will be successful.
[84] As Ms KO put it: “this has been tried and was unsuccessful”. She noted that “when M left and when a return to his father was trialled M assaulted three police officers, so adamant was that he not to go back into his father’s care and control”. Ms KO said “it is highly likely that this will be repeated”.
[85] Ms Laugesen supported Ms KO’s view that if M returned to his mother he would benefit from psychological therapy. She said the therapist’s brief should be wide with an aim to increase M’s resilience and deal with his psychological vulnerabilities as opposed to focussing on family issues or family reunification.
[86] Ms Laugesen noted that while a return to New Zealand to his mother’s care might send a message to M that his actions and the actions of his mother had been justified and condoned, she believed the psychological intervention envisaged by the Family Court Judge had come about too late for M. Her view was that any benefits associated with having a relationship with M’s father and older sister were negated by the risks to him and his education as well as to his physiological, emotional and psychological well-being if his wish to return from Australia was ignored.
M’s wishes
[87]M said in his affidavit of 25 November 2019:
(a)He will not go back into his father’s care. He says he reported to the authorities that his father had been psychologically abusive to him keeping him shut in a room, preventing him from talking to anyone and having private investigators watch him at his father’s apartment in Wellington before he came to Australia. He also said his father calls him names like “stupid” and “retard” and “when I was younger he made me wear my t-shirt inside out and he made me stutter”.
(b)He has not had contact with his mother since he left New Zealand and he misses her. She always provided him with a home base, love and affection.
(c)He has a close relationship with his siblings, who are in New Zealand. One sister, A, still lives with her mother and is aged 17 years. He thinks L, his oldest sister, is different and is upset that she stayed with her father without telling him first. He does not feel as though he knows her anymore.
(d)He was doing well at school in New Zealand. He aimed to be top of the class. He is close to his maternal grandmother who lived in the vicinity. He wants to return to school and knows he has the support of among other people such as Dr P and her family.
(e)He offered up a compromise of going to his high school as a boarder, with his father meeting the costs and seeing a counsellor from there. He would not want his contact with this mother restricted in any way and wanted to see his siblings. He does not want any contact with his father given what has happened and being put in “juvenile detention”. He said, “I don’t want any relationship with my dad”.
[88] Ms KO had no doubt that M while in Australia has continued to be under the influence of his mother through her family and otherwise. This has meant the objectives of the Family Court in ordering M be removed from his father’s care without contact with his mother have not been achieved.
Report of Ms KO dated 15 January 2020
[89] Ms KO met with M on a number of occasions when she was in Australia. She also liaised with his parents by email and spoke to his aunt. She did not speak to M’s siblings. M would not give Ms KO permission for her to approach Mr Cohen who was the clinical psychologist that M had seen in Australia.
[90]Ms KO concluded:
(a)There are no signs of any form of psychological disorder such as psychosis or depression evident in M.
(b)The family issue and conflict are weighing heavily on M and he seeks a solution that meets his needs as he presents them. He clearly believes that his thoughts are not influenced, are uncoached and are a result of experiences which are his alone.
(c)M’s wishes are clear and adamant. He wants to return home to continue education at his high school and follow up with his long-term plans to attend university and study to be an engineer or lawyer. He wants to recommence his relationships in his home town. He stays in touch with his friends, especially his three main friends daily by computer and phone.
(d)He wants no contact of any form with his father or L whom he considered has “lied” and “betrayed” him. He is of the view that his father has been verbally and psychologically abusive and manipulated the court system.
(e)M has always been a student who works to excel.
(f)Chronic litigation has continued for almost the duration of M’s life. That and exposure to adult conflict is considered to be one of the adverse childhood events which predict later mental, physical, relationship health and sibling relationship difficulties.
(g)There have been alienating behaviours. Ms KO noted it had been the consistent finding of the Family Court Judge that Ms K was largely responsible for those alienating influences.
(h)Both extended families had aligned with “their” respective parent.
(i)M’s attachment to his parents was less than secure. He was only 18 months – two years of age at the time of parental separation. He is highly needy of his mother. He has no attachment to his father. M’s
experience for his whole life has been of parental engagement in conflict.
(j)M’s less than secure psychological attachment and being caught up in parental conflict were big contributors to his lack of resilience and his taking sides with his vulnerable mother against his perception of a “dominating, controlling and disengaged father”.
[91] Ms KO was concerned at M’s reactions and his trauma responses. When questioned he became adamantly defensive, showed fear of mental illness. She considered he would benefit from education about mental illness. Ms KO was concerned that one of the long-term outcomes for children who had been traumatised, such as M has been, was mental illness.
[92] In summary, Ms KO came to the conclusion that many factors had contributed to the position M finds himself in today. She said it was not as black and white as “alienation” against “abuse”. She said in her report:
59.… There are factors that include both of these hypotheses, as well as [M]’s lesser relationship (time and frequency) with his father; his insecure attachment to his mother; his sibling’s choices; his peer relationships; that he is living with a maternal aunt who is supportive of [M]’s position; and [M]’s own lack of resilience and his cognitive inflexibility; as well as [Mr Z] enforcing of the contact and now the living arrangements of [M], against [M]’s express wishes that [M] considers are to be followed. Especially, [Mr Z’s] enforcement of Court orders has reinforced to [M] that his father (and aligned sister) are abusive and he has support from his maternal family and siblings that this is the case.
60.In my view, all these factors do not invalidate [M]’s statements as these are his perceptions of events. However, there is concern that
[M] will lose the social capital provided by his father and oldest sibling, the toll of which will only become apparent in the future.
[93] Ms KO was also concerned about the sibling relationships that this ongoing conflict had affected. The sibling relationship was the most important relationship in a young person’s life.
[94] Ms KO concluded it was nearly impossible to force a child who is as determined as M to have contact with his father. She suggested an “good bye until
later” session where Mr Z and M met in the same room later and Mr Z worked out a strategy to reconnect in the future when M was ready. This approach was rejected by M when Ms KO spoke to him about it. Ms KO felt that was still an option in time.
[95] In the event that M did come back to New Zealand to live with his mother Ms KO recommended that his father provided him with a “goodbye until later” letter. Mr Z should also maintain the same email address for contact so M, if he wanted to in the future, he could contact his father. A copy of the letter should be left with a trusted third person so that even if M destroyed it now, it was available to him in the future. Ms KO also recommended that Mr Z started putting savings away for M and made arrangements for presents bought for M’s birthday and Christmas to be held toward M re-establishing contact. She said this would demonstrate to M that he had not been forgotten particularly on special days.
[96] Ms KO concluded that the intervention contemplated by the Family Court Judge had been trialled and was unsuccessful. She said in her report:
77. In reality, I am uncertain that this option has any possibility of being successful as I believe it likely that [M] will run or offend and then he will continue down the juvenile offenders route and seek to stay in detention rather than live with his father. He has successfully done this once and he was clear that he would do this again. There is a risk that this boy, previously showing no signs of a conduct disorder, achieving well at school and having good social connections could pursue a more destructive route.
[Emphasis added]
[97] Ms KO did consider other options such as M going to boarding school in various places. These were not seriously canvassed during the hearing. I was provided with little information on those options. It seems nothing would be gained by imposing yet another new experience on M. Therefore, I do not intend to further consider those options.
[98] Ms KO was robustly cross-examined by Mr Buchanan on behalf of Mr Z. The thrust of cross-examination was:
(a)The Judge made no error. If Ms KO had been required to make a report at the time of the October 2019 hearing she would have supported exactly what the Judge concluded.
(b)His client was not to “blame”. It was all the fault of M’s mother.
(c)The mother was severely psychologically impaired. Her influence on M was insidious and she should be removed from his life whatever the consequences.
[99] Ms KO readily agreed with many of the propositions put to her by Mr Buchanan but she remained of the view that on balance the return of M was the lesser evil particularly in terms of his physical well-being and his short-term general well-being. She felt it was important that he was returned to his school, to his friends (with whom he maintained contact) and to his home.
[100] Ms KO agreed in cross-examination with the proposition that the Family Court Judge was supported by the literature in his views about the possible benefits of M being “deprogrammed” while in his father’s care. She also agreed that the causes of the alienation were largely due to the mother’s behaviour. But she was clear that that was not the only factor. Ms KO said M’s insecure attachments and the earlier loss of his father from the home contributed. The ongoing conflict and litigation were important contributors in her view.
[101] Ms KO noted that significant developmental changes occur in the growth phase between 10 years of age (when the 2016 report was prepared) and 14 and a half years of age. In addition, in that period M was in an environment of ongoing conflict and litigation (which had renewed over the past 18 months to two years) and subject to ongoing exposure of M to his mother’s influence.
[102] Ms KO felt that the physical risks associated with M running away and playing up including the possibility self-harm and worse were very likely to occur if M did not return to New Zealand. She said that was based on his past behaviour and also the fact that M was now an adolescent. Adolescence is recognised as a period of high
risk-taking. Ms KO felt M’s wishes had to be taken into account and validated for M’s own psychological well-being. She was also concerned that failure of the Australian programme would lead to severe negative consequences on M’s long-term psychological well-being and mental health.
[103] Under cross-examination Ms KO acknowledged that the decision for the Court was difficult. She did note however there was now more literature in relation to alienation than there had been at the time of her earlier reports and it was clearer that there were complex reasons for alienation. She did not want to attribute blame despite being invited to do so although she did believe on that point that Ms K held the “majority of the cards”.
[104] Ms KO was adamant about M’s likely behaviour. She said that his past behaviour of running away and the lengths to which he went to avoid his father were indicative of what would happen in the future if he was required to go back to his father. She said that would likely involve the police, force and imprisonment. Even if he undertook the programme Ms KO had concerns about the outcome on M.
[105] Ms KO was of the view that if M was detained in Australia and the programme was unsuccessful the risk to M was significant. She had earlier said that M had been subject to three or four Adverse Child Events (ACEs) which had put him at higher risk of psychological and emotional damage than a child not subject to those events. In simple terms she said the unsuccessful programme would be an additional ACE which would have an exponential effect on top of the others. It could lead to an extreme level of trauma for M.31
[106] Ms KO noted that if the intervention had happened when M was 10 years old it may have had a much better chance of success. She also indicated that things might have been very different if Mr Z had intervened earlier in M’s life from a base in New Zealand.
[107] Ms KO also noted there were also other positives for M returning home to his mother’s care that included:
31 See [155].
(a)Returning to school. This was an important factor. He liked school and achieved at it. She noted this was one of the few protective factors. She said he succeeds at education so that is one place where he gets self-esteem. It was also was that he would be with his friends. One of his main goals was to be educated.
(b)He had other supportive adults here.
(c)He would be where he wanted to be.
(d)He had two siblings with whom he would be able to maintain a relationship.
(e)The involvement of Dr P. She knew a great deal of confidential information about the family and M’s circumstances and she was supportive of the idea of counselling.
[108] Ms KO said those were important positive factors about his return. Ms KO also said that M had three more years at school so there was still some time. In that time she said it was important to try to get M ahead in life to get past his history so that when he became a parent he might have the skills that would be necessary. She commented that many children who have been alienated end up with their own children alienated.
[109] It was clear from Ms KO’s evidence that an updated psychological report on M would have greatly assisted the Judge in better determining the risks to M if he was sent to his father. Changes had occurred since the earlier report. First M had gone through a significant period of development from childhood to adolescence since the earlier 2016 report. Secondly, M had become more rigid in his views. This was demonstrated by his behaviour following the October 2019 court orders. That probably would have been apparent if the psychologist had interviewed M before the October 2019 hearing.
[110] As I noted, Ms KO was of the view that even if the intensive “deprogramming” therapy was imposed it would be unlikely to work in circumstances. She noted there had been a period of intense conflict since L had left for Australia and that further litigation had ensued which Ms KO pointed to as an ongoing and significant detrimental factor in terms of M’s well–being. She felt on balance that it would have been better for the litigation not to have been pursued despite the fact that, as Mr Buchanan urged on Ms KO, if Mr Z had done nothing it would have left M to the mercies of his mother and her influence.
[111]I now turn to the Family Court decision.
Family Court judgment
[112]The Family Court judgment introduction read as follows:32
[1] This decision issues in proceedings under the Care of Children Act 2004. It determines the latest of numerous applications which have been made between these parties since July 2007. In total, there have been 32 substantive applications between the parties under the Care of Children Act, let alone proceedings under other family law statutes. There have also been numerous and often significant interlocutory applications which have required decisions. There have been numerous hearings in the Family Court as well as various proceedings in the Higher Courts, again involving significant interlocutory applications and substantive matters by way of appeal rights.
[2] As time has advanced, the range of children subject to these proceedings has reduced not by dint of a reduction in dispute or dynamics at play, but simply because children have moved out of the age jurisdiction. It is by any measure an extreme case, reflected by the fact that the Care of Children Act files alone stand in height an astounding 1.8 metres of paper.
[3] As will be explored, the extreme qualities of the case serve to demonstrate the degree to which laws such as the Care of Children Act, which are designed by Parliament to regulate parental affairs and disputes, are framed essentially around a notion of reasonable people. Conversely, the unique and, at times, distressing circumstances of this case amply demonstrate how the laws of Parliament, and the tools available to Courts, struggle to produce outcomes in a manner anticipated by the purposes of statutes or their underlying rules.
[4] Purposes such as those in the Family Court Rules of making it possible for proceedings in the Family Court to be dealt with as “fairly, inexpensively, simply and speedily as is consistent with justice”, have been rendered almost redundant. They are rendered redundant not through systemic difficulties or deficits. Instead, this case demonstrates how the
32 Z v K, above n 2.
abusive and dysregulated action of one party can cause havoc, not only to the other party, not only to lawyers, supporting agencies such as the police, but to the Courts. But most importantly, such actions create havoc to the lives of the children who are at the heart of consideration.
[113] The judgment also set out the procedural history of the application before it. It is not necessary to go into detail save to say that the Judge was of the view that Ms K had wilfully obstructed the proceedings relating to the application by Mr Z for a change in care of M. She had done so by various steps and behaviour and had wilfully failed to comply with directions made by the Judge. The behaviour included actions that she took to block the Judge meeting with the children without Dr P being present as well as failing to attend the pre-trial conference.33 The Judge said:34
[35] … At that conference, there was no appearance by or for [Ms K]. In the context of this complex proceeding and the clear directions that had been made, I declared that [Ms K]’s failure to attend was an abuse of the process. I presented the factual basis for that finding and struck out her proceedings.
[114] The Judge then directed the matter be dealt with by way of formal proof excluding the participation of Ms K. Two days were allocated for the formal proof to be heard in March 2019. However, due to appeals and other steps taken by Ms K the matter was not finally heard until October 2019.35 The formal proof process involved cross-examination by the lawyer for the child of witnesses led on behalf of Mr Z. The witnesses were Mr Z, M’s oldest sister L, and a police sergeant. Ms K was permitted to be present in the courtroom for the hearing except during the evidence of L. The Judge noted that the lawyer for the child had adopted a “best interest” approach in cross-examining the witnesses. He noted this approach did not adopt a strong position either for or against either parent.36
[115] The Judge found that Ms K was responsible for the alienation of M and the other children from their father. He said:37
[62] For the avoidance of doubt, I had no concerns of any kind that Mr Z posed any risk to the safety of any of the children through any of his own actions. I record that point because the mother continues, albeit largely through the vehicle of her children, to make ongoing allegations that the father
33 Z v K, above n 2, at [4] and [35].
34 At [35].
35 At [45].
36 At [56].
37 At [62] and [64].
and members of his family have been abusive towards them. This matter has been dealt with at previous hearings when full evidence was heard and determined. There is not a skerrick of evidence supporting those allegations.
…
[64] … The only risks to the children arise by virtue of the extremely negative view that the children hold of Mr Z, Ms K has implanted these views in the children. There is obviously a consequent risk arising from that negative psychological interaction.
[116] The decision records Ms K interrupted the Judge in the course of the delivery of his decision. The Judge then commented:38
[63] (For the record, Ms K who is present in the back of the Court made a comment which I could not hear. I have requested her not to make any comments).
…
[66] (I again record that Ms K, within the space of perhaps two minutes, had ignored my request that she remain quietly in the back of the Court. She again began to interrupt. I have advised her that she had a choice; either to remain in Court without saying anything more, or to leave the Court. I warned her that if she remained in Court and ignored my second instruction then I would implement a contempt process against her and have the police involved.) I will return again to my decision.
[117]The Judge was influenced by the evidence of L. He said:39
[70] I turn to the rather disturbing evidence presented by [L]. During [L]’s evidence, I requested that Ms K be absent from Court, as [L] had expressed concern as to the present of her mother during Court. While I appreciate that impacts, to a level, the mother’s ability to be aware of matters given in evidence against her, this is a case where her role has been limited by virtue of strike out. She had [L]’s affidavit in any event and if she wished to exercise any rights of redress through appeal or judicial review, then she would then be entitled to the notes of evidence. She had been made aware before she gave evidence that there was the potential for her mother to learn of what she said. She comfortably gave evidence, albeit with the mother out of the room at that stage. In fairness to Ms K, she had left the room willingly for that purpose.
…
[76] While [L] said the children were never physically abused by their mother, she certainly felt that she was being emotionally abused. [L] had thought that when she decided to live with her father, she would be able to continue an albeit difficult relationship with her mother and have an ongoing relationship with her siblings. She thought she would be able to visit them.
38 Z v K, above n 2, at [63] and [66].
39 At [70] and [76].
In examination, she said that she grossly underestimated the degree of her mother’s reaction to [L]’s right to decide where she wanted to live and that her mother effectively rejected her. It is akin to a situation where, from Ms K’s perspective, a person is either with her 100% but, if not, it means they are against her.
[77] [L] said she underestimated Ms K’s strength of hatred of the father and the degree of influence she held over [A] and M. [L] detailed, both in her affidavit and in examination, the many lengths she has gone to, to try and speak to her siblings since moving to Australia. If she rang then often the phone would be hung up on her, or her mother would say horrible things to her. She has continued to try to call in 2016, 2017 and at times in 2018. On one occasion in 2017, [L] contacted her mother to let he know that she would be in [their home city] and asked to see her siblings. She received no response. She said that she has sent her mother messages for birthday, Mother’s Day, and even sent a plant to her for Mother’s Day in 2017.
[118] The Judge found that Ms K was responsible for alienating M from his father. He referred particularly to the “disturbing” evidence presented by L. The judgment goes on to detail the actions of Ms K as recounted by L. L said that she had “under estimated [Ms K]’s strength of hatred of the father”.40 And the degree of influence she held over the children including M. L said her mother had blocked her emails.41 The Judge noted how alarming this behaviour was particularly in relation to the severance of the sibling relationships. He concluded:42
[83] Overall, the evidence from L provided cogent proof of sustained longitudinal and high level emotional and psychological abuse by Ms K of all the children. Her abuse has perpetuated all the formative years of the children’s development since separation, with the sole exception of the period when Ms K was under the very strong spotlight of the Court as I have described. The evidence serves to create serious concerns as to the degree of weight which could be placed upon any views expressed by the children.
[119] The Judge noted that the children who had remained with their mother had interpreted events in order to demonise their father and blame him for everything from not helping them financially to not being there for them (despite the fact they would have no contact with him), not providing Christmas presents and favouring L. This was the result of alienation by Ms K.43
40 Z v K, above n 2, at [77].
41 At [78].
42 At [83].
43 At [111] and [113].
[120] The Judge accepted that Ms K had intercepted emails from Mr Z to the children, withheld presents from them that he had sent,44 made unsubstantiated abuse allegations against Mr Z45 and denigrated him to the children.46 These were factual findings open to the Judge on the evidence.
[121]The Judge went on to consider the views of the children. He said:47
[123] In the present case, noting those academic papers and the approach adopted by the High Court in Allen v Wade and Finn v Poole, I must consider what weight should be attached. For the extensive reasons that I have presented, such is the intensity of Ms K’s influence upon the children, her unremitting emotional abuse of them, that I can place very little weight upon the expressions of the children as being anything close to a true reflection of how the children might genuinely feel. Indeed, such has been the intensity of the alienation that I doubt the children possess anything approaching an objective appraisal of how they actually feel. That is not to say the children will perceive that what they are saying is not their genuinely held views. They will unlikely appreciate the extent to which their views have been shaped and contaminated by their mother over their lifetimes to such a degree in this case.
[124] The analysis of factual matters show a high level of disconnect between their account of incidents and the lack of evidence to support such stated events. Having measured the children’s many and repeated statements against evidence, it can be seen that many instances the children rely upon simply have no factual base to them. Many of their allegations are of ancient age and indeed, never occurred. It must be highlighted, that through the mother’s actions the father has had no actual direct involvement with the children since 2016 or so. There has been no opportunity for him to perpetuate the many things which they state cause them fear or dislike.
[125] The evidence demonstrates to a significant level that the children’s views reflect their expression of a lifetime of influence and direction from their mother as to what they should say, what they should do, or not, and what they should think.
[126] If follows that in this unique case it would be very dangerous to place any weight upon the apparent views of the children, including the subject child M.
Application of section 5 Principles to Particular Circumstances
[127] Having detailed the children’s views and recording that I place little weight upon the views of M, I turn to the determination of what option best serves his welfare and best interests. This assessment is based upon application of the application of the s 5 principles to the particular circumstances identified in this case. The Court of Appeal in Bashir v Kacem stated that the Court must identify which principles are relevant and apply
44 At [99].
45 At [91] and [124].
46 At [145].
47 At [123]–[127].
them to the particular circumstances. I have also recorded the s 6 views of the children.
[122] The judgment went on to balance the relevant factors as was required under the legislation. The Judge concluded that due to the behaviour of the mother and her alienation of M from his father it was appropriate to change the status quo and move him from his mother’s care in New Zealand into his father’s care in Australia.48 The Judge noted the fine balance between retention of the status quo against the change which would see the preservation and strengthening of the relationship with M and his father.49 The Judge said:50
[143] Although the relationship with Ms K and the maternal family will, of course, suffer if M is in Australia and if there is a suspension of contact for a period of time, there is a far higher prospect that at an appropriate time, M could easily rebuild that relationship if, indeed, he wants it. Given M’s primary care has been with Ms K and, having regard to his age, his relationship with her will unlikely to be lessened in psychological terms due to the attachments that will have developed. Accordingly, s 5(e) leans heavily in favour of a change to the status quo.
…
[146] Adopting the approach of the Court of Appeal in Bashir v Kacem, and noting the stark problematic and limited options available, on an overall analysis of factual and legal considerations I determine that a change in status quo best serves M’s welfare and best interest. I emphasise that there are no other options which have been presented to me. Both have risks. Both have negative outcomes. But a change in care holds more positive outcomes than retention of the status quo.
[123] Orders were then made that M go into the care of his father and be relocated to Australia.51 Having found that Ms K had acted abusively toward the children at such an extraordinary level he considered it untenable to permit contact with her for a significant period of time in any mode and so ordered.52 The Judge imposed conditions as to counselling and therapy for M to address parental alienation and issues of grief following the relocation.53 He issued a warrant to uplift M to enforce the orders.54
48 Z v K, above n 2, at [140].
49 Z v K, above n 2, at [142].
50 At [143] and [146].
51 At [147].
52 At [147](d).
53 At [147](d).
54 At [147](g).
Submissions by litigation guardian for M
[124] Ms Lewes for M criticises the Judge’s findings. First, she says that alienation is not absolute. It occurs on a spectrum and this was not a case of true alienation of the most serious kind. Counsel had pointed to research by Warshak55 which identified three components that must be present for a bona fide identification of parental alienation. These were:
(a)a persistent, not occasional, rejection or denigration of a parent that reaches the level of a campaign;
(b)any unjustified (unreasonable) or irrational rejection by the child; and
(c)rejection by a child that is the partial result of the alienating parent’s influence.
[125] Ms Lewes noted that research had indicated that behaviour of the favoured parent was one but not necessarily the main component of child alienation. She submitted that based on recent research there were multiple and interrelated factors including the history of marital conflict. She pointed out that M had not had a close relationship with his father since his father had left when M was about two years of age. Mr Z had following his departure moved to Australia and was not involved in the daily life of M or his siblings from then on.
[126] Ms Lewes submitted this was an important factor because M has no memory of living in a united family or being co-parented. This meant that in terms of attachment theory56 Ms K was the primary parent and so as the early and primary attachment figure was important and that had not changed. She noted this was the finding of both psychologists who carried out four assessments under s 133 of COCA. A psychologist reported in 2018 that the children see “their mother as their most significant figure in their lives” due to the fact they have been in her care. Ms KO also noted in her report in 2011 that while past “aligning alienating behaviours” from the mother would have contributed to the failure of the children to reciprocate to Mr Z’s
55 Warshak, above n 18 at 29.
56 John Bowlby Attachment and Loss, Volume 1: Attachment (2nd ed, Basic Books, New York, 1982).
wish for a strong connection, nevertheless so did the distance and infrequency of physical contact with Mr Z.
[127] Ms Lewes also pointed to the contradictory conclusions in a number of earlier Family Court decisions. These included:
(a)At a review hearing on 11 October 2012 Judge Callinicos had reached the conclusion that M’s mother had been cooperating with arrangements and therefore allowed the status quo being the children in the care of their mother to continue and criticised the father’s behaviour commenting that he refused to accept this. Nevertheless, the Judge made a final parenting order which set out contact with the father. This contact apparently operated well between 2012 and 2015. It involved the four children.
(b)When the matter came back before the Court, Ms KO, in a report dated 15 November 2016, commented on the children’s views expressed to her that their father had a lack of understanding/ability to do activities which “the children value rather the children report the activities are the same on each visit”. However, Ms KO noted that the behaviour of the children with their father indicated they did have some attachment with him. In that report she also commented that M was realistically aligned with his mother as she has been the only parent he had known and his father had been absent and sporadically involved in his life.
[128] In summary, Ms Lewes said that due to M’s age at separation, his father’s early move to Australia and lack of everyday involvement in the child’s life, as well as M’s friends, his education, his interests and activities in New Zealand, M did not have an attached and healthy relationship with his father at any point.
[129] Ms Lewes further submitted that the Judge had underestimated the level of trauma that the move would have.
[130] Ms Lewes also submitted that the process adopted by the Family Court Judge which was to strike out the mother’s defence and proceed by way of a two-day formal proof hearing, meant that the presentation of strong submissions, arguments and cross- examination was missing. This meant the option of M remaining in his stable environment and the real risks involved in a move were not properly canvassed. Ms Lewes said if Ms K had been permitted to participate in that testing and to put forward alternative options a full picture would have been before the Court. Ms Lewes noted while the lawyer for the child did cross-examine it was done from a neutral standpoint and so the evidence such as that of L was not properly tested.
[131] Ms Lewes in her submission also submitted that there had been specific errors in the judgment. In particular:
(a)The judgment ignored the fact that between the 2010 decision and the order after L went to live with her father (December 2015) the order with contact for the father had been complied with.
(b)The findings in the Judge’s 2012 judgment were favourable to the mother and were critical of the father’s position. These were ignored in the latest Family Court judgment.
(c)Selective quoting from Ms KO when assessing what weight she gave factors as well as ignoring her opinion that: “the children’s views must be given some weight and the children’s ages and life experiences to date (as outlined above) have contributed to their perceptions of the situation. To discount the children’s views could make the situation worse.”
[132] In summary, Ms Lewes said the Judge ignored the expert views on the alienation/alignment of M, the weight that should be put on his views and the risks of relocation.
[133] In response, Mr Z, submitted that the involvement the Family Court Judge had had in relation to this family in earlier applications and decisions was considerable.
He said that the present decision under appeal was rooted in what he described as the “foundational judgment” which had been delivered by the Judge on 14 December 2010. At that stage the parents had been separated for over three years and most of that time Mr Z had been living in Australia where he had had moved for work. That decision was the first of a series of decisions of the Court, most of them decided by the same Judge. To illustrate the depth of knowledge of the Judge the more significant decisions and appeals in that series were:57
(a)reserved decision of the Judge dated 14 December 2010 (“the Foundation judgment”);
(b)reserved decision of the Judge dated 5 July 2010 (“First review of Interim Order”);
(c)High Court Judgment (first appeal) ALZ v FLK (per Brewer J, HC Napier, 7 Nov 2011; CIV-2011-441-581);
(d)reserved decision of the Judge dated 11 October 2012 (“Second Review of Interim Order”);
(e)High Court Judgment (second appeal) ALZ v FLK (per Wylie J, HC Napier, 6 June 2013; CIV-2011-441-736);
(f)Judgment of another Family Court Judge dated 23 October 2013 (regarding schooling);
(g)Ruling of the Judge dated 26 July 2017 (Ms K’s complaint regarding the s 133 report writer, Ms KO); and
(h)reserved decision of the Judge dated 22 November 2017 (regarding passports).
57 Of the 32 substantive applications referred to by the Judge.
[134] The Judge referred to the history of proceedings in the Family Court.58 This history meant, Mr Z said, that the Family Court Judge had ample evidence before him to reach his conclusion. He was familiar with the case and correctly addressed the fundamental questions at issue which were:
(a)Is M alienated?
(b)If so, what is the cause?
(c)Can the cycle be broken, if so, how?
(d)What is in the best interests of M?
[135] In addition, Mr Z pointed out that the Court had the benefit of two reports from psychologists obtained pursuant to s 133 of COCA. The first was provided in 2011 and the second on 15 November 2016. The brief to the psychologists, in particular in relation to the second report, was wide. I note in passing that neither psychologist was called upon to give evidence at the formal proof hearing. Ms KO had not had substantive involvement with the matter following the delivery of her 2016 report.59
[136] Therefore, Mr Z said the Judge was familiar with and had considered Ms KO’s findings including her views on the weight that the children’s views should be given. Therefore, Mr Z said, the Judge did not need an updated psychological report for the purposes of making his decision.
[137] Mr Z further submitted that the Judge in his decision carefully and appropriately cautioned himself not to afford weight generally to the research before him.60 He instead focussed on a particular inquiry into M and his circumstances. Mr Z submitted that the decision was clearly founded in the Judge’s deep knowledge the background of relevant dynamics although properly informed by the psychological literature. In addition, the Judge heard from three witnesses.
58 Z v K, above n 2, at [1].
59 Minute of Family Court, 18 September 2018, at [20].
60 Z v K, above n 2, at [19].
[138] The Judge, Mr Z says, was entitled to find that the alienation was at “the high end of any perceivable spectrum”.61 Despite the Judge’s findings that the mother’s attitude had improved at the time of the foundational judgment, Mr Z says that the Judge saw her behaviour in October 2019 and concluded on the evidence that it was necessary to make the orders he did. This was to send M to his father in Australia and as far as possible away from the influence of the mother.
[139] In relation to the views of M, Mr Z submitted that M’s views were not disregarded but that:
(a)they were clearly ascertained and correctly recorded; and
(b)the question was the weight to be given to those views.
[140] Mr Z said the Judge considered the views and articulated his reasons for discounting the expressed views:62
[125] The evidence demonstrates to a significant level that the children’s views reflect their expression of a lifetime of influence and direction from their mother as to what they should say, what they should do, or not, and what they should think.
[141] The Judge concluded that little weight should be placed upon the expressions of the children “as being anything close to a true reflection of how the children might genuinely feel” and noted:63
Such as been the intensity of the alienation that I doubt the children possess anything approaching an objective appraisal of how they actually feel.
[142] He concluded that it would be very dangerous to place any weight on the apparent views of the children and went on to say that he placed little weight on the views of M.64
61 Z v K, above n 2, At [122].
62 At [125].
63 At [123].
64 At [126].
[143] Mr Z said that the Family Court Judge had reached the correct conclusion. The corrosive conduct of the child’s mother over many years had made such a conclusion inevitable. He said that the Judge had carefully followed the guidance of the Court of Appeal in Bashir v Kacem65 and the Judge took the view that all of the s 5 principles were relevant but in “different ways and at different levels”.66
[144] Mr Z said the Judge was required to undertake a careful balancing of incompatible options but did not place the need for M to have a relationship with his father “above all other principles” as the appellant has submitted. Therefore, the Judge entirely appropriately stood back and took an overview67 having regard to the overarching paramountcy of the interests of the child and his welfare.
[145] I consider the Family Court had ample evidence to support the finding that Ms K bore a high degree of responsibility for causing the alienation of M from his father. The Judge said:68
Sustained long internal and high level emotional or psychological abuse of all the children which has perpetrated all the formative years of the children’s development since separation with the sole exception of the period when Ms K was under the very strong spotlight of the Court.
[146] In addition the Judge did consider M’s views but did not take them as the determinative factor. Section 4 of COCA mandates a holistic approach to the “welfare and best interest” of a child. While the child’s views may coincide with the Court’s assessment of the child’s best interests it is not appropriate there should be a surrender to the primacy of a child’s views.
[147] The Judge set out the evidence upon which he relied in considerable detail. That included information from the earlier psychological reports and L’s evidence. I have set out above some extracts from the judgment in that regard. It is not necessary to traverse the evidence in detail. Ms KO largely agreed that Ms K had a role in the alienation. However, she did point out alienation factors were more complex and much depended on the context and the child.
65 B v K [2010] NZCA 96, [2010] NZFLR 865 at [50] (“Bashir v Kacem”).
66 Z v K, above n 2, at [130].
67 At [145] and [146].
68 At [83].
Present position
[148] Ms KO provided a careful analysis of the complex causes of alienation and the advances in the understanding over recent times of the causes and effects as well as appropriate treatment.
[149] As will be apparent my view is that in October 2019, even without the benefit of knowing what M’s actual behaviour would be after being sent to Australia, Ms KO, or any psychologist appointed to update the existing psychological reports would have provided important information relevant to M. Without that individualised information and psychological update the Judge was largely reliant on the general literature. He had no expert assistance in how that might apply to M or what risks might be associated with his removal from New Zealand.
[150] Ms KO was clear that in the four years that had passed since the last report M had developed considerably. Unfortunately, this was in a period of development which, it was generally accepted was, likely to be a risk taking period.
[151] Ms KO also noted the significant effect on M of the continuing conflict and litigation over the past four years. It appears in this period his mother’s influence became stronger and M’s determination to be loyal to his mother given L’s “defection to her father” became more intense.
[152] Also, missing from the information before the Judge was information about how settled he was at school. It is clear education is an important factor for M. He is successful and Ms KO commented that this was a protective factor for him. He had started secondary school in the period since the last report, formed and cemented strong relationships with his classmates and was on the cusp of taking important steps in his education such as sitting NCEA which would lead him to university, one of his goals.
[153] Ms KO also made it clear that the research on alienation and interventions has developed significantly over the last few years. In my view it was also necessary to have an expert such as Ms KO interpret what that research meant here. The causes of and risks posed by the factors that M has been subjected to are complex and nuanced.
[154]Ms KO reported on the adverse childhood consequences (ACE) operating on
M. These are predictors of later adult mental, physical, relationship health and sibling relationships. Ms KO noted that M was at higher risk than his peers, even in relation to children from separated families due to the following adverse childhood experiences:
(a)Parental separation which has been highly conflicted and litigious and has occurred throughout M’s life.
(b)Ms K’s strongly and consistently held negative views of Mr Z which has been influential on M to also believe that Mr Z is “dangerous”.
(c)Siblings who have been split.
(d)Limited appropriate social capital as the maternal family are on the mother’s side.
(e)M’s fear to admit that anything is wrong in case this would destroy his position that life with his mother is near-idyllic.
[155] The effect on M of being forced into undergo a “deprogramming” course which was unsuccessful would, according to Ms KO, exponentially increase the likelihood of later psychological problems for M. She said:
A. The Family Bridges staff are saying that on severely alienated kids they’re getting 85% success in their five day programme, then a two week holiday afterwards. I think we’re looking at a different level here and I don’t know the specific cases. You can read your journal article and think, “Yeah, yeah, yeah,” but I think we’re in the 15% that failed.
Q. And what’s the risk of M suffering further trauma with both of those? Well, with that scenario?
A. Nine times nine is 81, or 81 times 81 is whatever.
[156] Ms KO explained that this was a reference to the exponential damage that would occur by the addition of further ACE factors. This was added to the three or four existing ACEs so another adverse child experience (the unsuccessful treatment) would exponentially increase the traumatic effect on M. She felt it would be extreme.
[157] The Judge was concerned that if the relocation order was not made then it would not be an option for the future given M’s age.
[158] Turning to the issue of the arrangements in place in Australia to receive M. The Judge was aware that there would be psychological trauma associated with a change of care. He said:
Change of country, change of primary home, separation from some of his siblings, separation from his friends and school, and the world as he knows it for M.
[159] Mr Z had given evidence that he had consulted a psychologist in Australia and produced a letter from the psychologist together with the psychologist’s CV. Mr Z said that the psychologist had indicated that Mr Z should consider very carefully whether he should persevere as it would be very traumatic for M to relocate. However, Mr Z also said the psychologist told him that if he did not try then “M is never going to grow up to be a well oriented person and that he won’t understand his father and he will probably have some sort of difficulties with the relationship and sort of understanding for reality”.
[160] Mr Z also said he could support M during the traumatic time, he would take extended time off work and work from home during school hours. He committed to enrolling M in a therapeutic established treatment programme in Australia which focussed on alienation and confirmed his willingness to take the advice of psychologists experienced in that field. He was also considering options for M at school at two possible schools.
[161] While it is with the benefit of hindsight it is now clear that the risk was much higher than the Judge anticipated.
Consideration of s 5 principles
[162] The Judge took into account the principles in subs 5(b) and (c) noting the child’s “development and upbringing is the primary responsibility of the parents which should be facilitated by ongoing consultation and cooperation between the parents”. He found that the cooperation had become unachievable in the present case. He found
there was little likelihood with the history of conflict, ineffective communication and trust and the effect of the mother’s influence for the parents to discharge their parental responsibilities together so as to promote M’s welfare and best interest. The Judge noted that there had been many interventions over the previous 12 years by the Family Court and psychological reports but with the exception of the time the mother was under the spotlight in the 2010 foundational judgment, there appeared to be no evidence that cooperation could realistically be achieved in the future.
[163] The section 5(d) principle relating to a child’s welfare and best interests and the need for continuity and arrangements in the child’s development and upbringing was carefully considered by the Judge. He noted that M was happy at his school, he had been in his mother’s care continuously until then and continued to be exposed to his mother’s influence and worldviews. In that environment the Judge was of the view that M would maintain his view of his father and oldest sister in terms of the mother’s assertions of abuse. The Judge found there was no evidence of any form of abuse, emotional of physical, by the father against the children.69
[164] He also noted that the principle of continuity ran into conflict with the other s 5 principles, such as safety and the principle of strengthening or maintaining parental ties. He concluded if there were to be a change in arrangements then M would not be as readily exposed to the negative behaviours of his mother and instead would have the guidance of his father who had good parental skills and insight.70
[165] The s 5(e) principle relates to the child having a continuing relationship with both his or her parents and to preserving the relationship with the family group. The Judge noted that these were difficult to achieve immediately in the circumstances. He noted that since 2010 the Family Court had attempted to provide the children with an opportunity to have a relationship with both parents to preserve the family group.
[166] In relation to the s 5(f) principle that a child’s identity needs to be preserved and strengthened, the Judge noted that while M enjoyed good relationship with his maternal family he had been alienated from his father’s family and his culture. His
69 Z v K, above n 2, at [139].
70 Z v K, above n 2, at [60].
father noted the mother’s continual allegations of abuse by members of the paternal family had contributed to the severing of M’s relationship with his heritage.
[167] The Judge did in my view consider all the principles in s 5 of COCA. However, he did not have the benefit of an updated psychological report. The last report had been prepared in 2016 when M was aged 10 years. By the time of the October 2019 hearing M was 14 and a half. In that time M grew from being a child to an adolescence with all the attendant emotional, psychological and related changes. There was nothing before the Court focussing on how M from a psychological point of view might handle an abrupt relocation from home, country and school.
[168] The Judge therefore concluded that M could not remain with his mother due to the severity of the alienation in which was found to exist in the influence of the mother and the maternal family on M.
[169] Ms KO is also of the view that requiring M to undertake the programme if it was unsuccessful would have serious adverse psychological effects on him and exponentially increase the long-term psychological risks. Ms KO conceded the recent behaviour of M was the best indication of what would happen. The risks are immediate.
[170] In summary, the Judge evaluated the s 5 principles based on the information before him. However, that information was insufficient. A re-evaluation of s 5 principles with the benefit of the psychological report and new evidence indicates the child’s safety must be protected. In that respect his safety is jeopardised by a high risk he will run away and put himself in danger and may harm himself if he is required to remain in Australia with his father. This is an immediate and high risk.71 The Judge’s evaluation that M’s care, development and up-bringing was primarily the responsibility of the parents but was not being met appropriately,72 and that the ongoing consultation and cooperation between M’s parents as to his care, development and upbringing was not going to occur remains correct.73 In a similar vein a child
71 COCA, s 5(a).
72 Section 5(b).
73 Sections 5(b) and (c).
should be entitled to have a relationship with both of his parents and family group. But here the choice was stark. The Judge had hoped he would strengthen his relationship with his father’s family by going to Australia. He recognised that would weaken the immediate relationship with his mother and his mother’s family. That stark choice and the Judge’s comments remain relevant. However, at the end of the day the safety aspect and M’s continuity of care, development and upbringing, particularly the importance of his school and friends, weigh heavily in favour of his return to New Zealand. This accords with M’s wishes which have been clearly articulated by him, which must have considerable weight given his age and stage of development.
Mr Z’s position
[171] Mr Buchanan made it clear in his cross-examination and submissions that Mr Z has pursued this litigation only for the benefit of M. He sees grave risk to M’s psychological well-being in the future development if he is returned to his mother’s care.
[172] Nevertheless, the ongoing litigation has contributed to the destructive environment that M has been subject to most of his life up to the present time. No doubt Mr Z has the best of intentions but it appears that persistence may now be more destructive than standing back and letting M start again.
[173] Mr Z was also concerned to underline that it was not him to blame. It was M’s mother who was largely responsible for the alienation. Ms KO did not entirely agree with this but did accept that Ms K must take a large part of the responsibility for the alienation of M from his father. However, she said there were other factors that contributed to this. Nevertheless, the contributing factors to the risks that M faced long term psychologically included the relationship with his mother.
Conclusion
[174] All parties were agreed that it was time to bring this conflict to an end and let M move on. Ms KO noted in particular the litigation and resultant conflict had been particularly destructive.
[175] As will be apparent from above I have reached the conclusion the Judge made an error in failing to obtain an updated psychological report on M. This would have provided important evidence about M in this case. While the Judge reviewed the material in earlier psychological reports and considered the earlier decisions in the matter, the change in care arrangements posed a more significant risk to M than was apparent from that material. The Judge would have benefited from an updated psychological report to better assess the risk factors involved.
[176] I considered whether the matter should be remitted to the Family Court for rehearing. However, given the time taken for it to reach the October 2019 hearing it appears likely M would be 16 by the time any rehearing occurred. In the intervening period the litigation and conflict would serve to do even more damage to M.
[177] Accordingly, I have determined the appeal must be dealt with to bring finality for M’s sake. I allow the appeal.
[178] M is to return to New Zealand to the care of his mother. To effect this his passport presently held by the Australian Court must be returned to him. To facilitate cooperation and report to the Court in that process I consider the appointment of the lawyer for the child should continue for a period of two months pending the making of final orders.
[179] Importantly part of my final parenting orders will be counselling and conditions related to this. Ms KO said this should be provided by a skilled counsellor preferably a clinical psychologist with experience in this area. The selection of that person is important. Initially it should focus on M and ideally move to family therapy although she considered that in reality the successful involvement of both parents in this was fairly low.
[180] Ms KO suggested an undertaking that Ms K ensure M had counselling. Dr P indicated through counsel that she would support M and ongoing in this counselling. Ms K is on legal aid and is unlikely to be in a position to fund such counselling. If it were to be provided Mr Z would need to fund it. Therefore, it is appropriate to make interim orders now to finalise those arrangements.
[181] Accordingly, I make interim orders the exact terms of which will be finalised following further discussions and submissions by counsel. The nature of the orders are:
(a)M is to be returned to the care of his mother.
(b)Contact is to be with his father by agreement or negotiation.
(c)Ms K provide an undertaking to support counselling as is appropriate for M.
(d)Mr Z funds the counselling initially for a period of six months.
(e)Report by counsel to Mr Z on progress at end of that period. It will be up to him to decide on funding for the future.
[182] A guardianship order for return to New Zealand and return of M’s passport to him is made.
[183] While not an order I note the importance Ms KO placed on a “goodbye for now” letter and gestures by Mr Z such as opening a bank account and buying presents for M. That is of course up to Mr Z.
[184] I also note that the ongoing litigation has added considerably to the possible psychological damage to M according to Ms KO. It is time to draw a line and let M get on with his life. I conclude with M’s remarks in the letter to me provided by counsel:
I have already organised my classes for 2020 at [my high school]. I want to go home and continue doing [sports in my home city]. I also want to be able to continue doing activities with my friends like going on bike rides and playing football in [my home city].
I don’t belong here. It’s not my home. I just want to return home.
Lawyer for the child
[185] Ms Laugesen’s appointment as lawyer for the child will continue until final parenting orders are made. A teleconference will be held on a date suitable to counsel to be set by the Registrar to cover:
(a)The final orders and the terms of the parenting orders in particular as to the conditions concerning counselling including the funding arrangements and the nature of any report to Mr Z on the continuation of counselling beyond six months.
(b)Any other matters that need to be dealt with to implement the order.
Grice J
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