KV v CB
[2021] NZHC 2840
•22 October 2021
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 WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE
CIV-2021-488-97
[2021] NZHC 2840
IN THE MATTER of an Appeal against the Decision of the Family Court dated 4 August 2021 BETWEEN
KV
Applicant
AND
CB
Respondent
Hearing: 20 October 2021 Appearances:
V Crawshaw QC and M Davies for the Applicant N Dore for the Respondent
D Hart, Lawyer for the child
Judgment:
22 October 2021
JUDGMENT OF GORDON J
This judgment was delivered by me on 22 October 2021 at 2 pm, pursuant to
r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
Solicitors: Wills Westenra Ltd, Whangarei
Henderson Reeves Connell Rishworth, Whangarei Counsel: V Crawshaw QC, Auckland
D Hart, Whangarei
KV v CB [2021] NZHC 2840 [22 October 2021]
[1] This is an application for a stay of a judgment of Judge King in the Family Court at Whangārei dated 4 August 2021 making a final parenting order under the Care of Children Act 2004 (the Act) in relation to a child, “L” (the decision).1
[2] Both the mother of the child, Ms V, who applies for the stay, and the father, Mr B, the respondent in this appeal, have filed appeals against the decision. The appeals will be heard together along with a related appeal brought by one of the parents of V, L’s stepsibling.
[3] No dates have been set for the hearing of the appeals, but in a callover minute, a Judge of this Court directed that the appeals be given a priority two day fixture in late November to early December this year.
[4]Ms V, in her stay application, seeks the following orders:
(a)That the final parenting order of 4 August 2021 (the final order) is stayed until such time as the appeal of Judge King’s decision is heard; and
(b)An order granting interim relief, namely that the interim parenting order of 6 July 2020 (the interim order) shall remain in force until further order of the Court.
[5] The key difference between the interim order and the final order is that under the interim order, Mr B’s contact with L, which was daytime contact only, was required to be “monitored” unless that contact was in a public place.2 Under the final order, Mr B’s daytime contact with L is unsupervised.
[6] The final order also makes provision for contact overnight, which must be supervised. However, under one of the conditions imposed in the final order, no overnight contact is to occur until such time as L has been assessed by a child psychiatrist and, if required, a treatment plan made and agreed to by his parents. The
1 KV v RM [2021] NZFC 7015.
2 KV v CB [2020] NZFC 4293 at [47].
parties agree that as a consequence of this condition, overnight supervised contact will not occur prior to the hearing of the appeal.
[7] The focus then for this hearing was on whether daytime contact (other than in a public place) should be monitored as was required by the interim order, or unsupervised in terms of the final order, pending the hearing of the appeal.
[8] There is a further relevant difference between the interim and final order in that the final order provides for more contact time between Mr B and L during the weekends. The parties calculate that is around six hours more contact each month.
Background
[9] I set out a brief chronology. L is now aged four years. He will turn five on [redacted]. He is the only child of Ms V and Mr B, who separated in January 2018.
[10] In March 2018, Mr B moved in with J and her then fiancé. The three lived together in a polyamorous relationship until later that year, when the fiancé left the relationship. Mr B and J (whom I will refer to as Mrs B from hereon) married in February 2019. Mrs B is the mother of a nine-year-old girl, V. L and V are thus stepsiblings. Mrs B and V’s father have V’s shared care on a week about basis. As well, Mrs B has shared care of her two sons, aged 13 years and 14 years, on a week about basis.
[11]The third appeal I referred to is brought by V’s father.
[12] Mr and Mrs B’s polyamorous lifestyle continued after their marriage in February 2019. Ms V does not approve of her son L being exposed to that lifestyle and commenced proceedings in relation to L in October 2019. V’s father shared some of those concerns and he commenced proceedings against V’s mother (i.e. Mrs B) in March 2020.
[13] Judge King consolidated the two separate proceedings for V and L and presided over a hearing to determine their interim care arrangements on 9 June 2020, which enabled the Judge at that time to test some of the evidence before the Court. The
Judge’s interim order3 remained in place as at the date of the hearing in relation to final orders in March 2021 and it continued through until the final order was made by Judge King on 4 August 2021.
Interim order
[14]The interim order was as follows:
Times, location and nature of contact [for Mr B]
i.Each Wednesday from 4.00 pm until 6.30 pm
ii.The first three Saturdays of each month from 10.00 am until 4.00 pm.
iii.Such other contact as agreed between the parties.
iv.Contact that takes place in a public place does not require the involvement of a person approved as a monitor by Mr Hart [Lawyer for child].
Contact that takes place anywhere other than in a public place shall be on the following conditions;
i.Such contact shall be monitored by a person approved by Mr Hart other than contact that takes place either at the paternal grandparents’ home or with either of them being present;
ii.The monitor must be present at the commencement and conclusion of contact and may call in at any other time;
iii.The monitor must have an understanding of planned activities for the contact period.
Mr [B’s] contact shall be subject to the following conditions:
i.[L]is not to be introduced to or exposed to any sexual partners of either of both Mr and Mrs [B].
ii.[L] is not to be exposed to sexual language or sexual activity of any kind.
iii.Mr [B] shall not look at any material of a sexual nature, whether it be in print, television or electronic.
iv.[L] shall not have access to nor use any device that does not have an operating child lock or similar application installed to prevent access to age appropriate content.
3 KV v CB, above n 2, at [47].
[15] At the hearing in March 2021, Ms V sought a final parenting order that provided for L to be in her day to day care. She proposed that Mr B have supervised daytime contact with L every second weekend, plus every Wednesday after daycare, for two and half hours.
[16] Mr B opposed supervised or monitored contact. Instead, he sought unsupervised contact and proposed an increase from the then current contact to shared care on a week about basis, similar to Mrs B’s care of her daughter V.
Final parenting order
[17] The Judge imposed a final parenting order on the following terms and conditions:4
(a)Ms [V] shall have the day to day care of [L].
(b)Unless agreed otherwise, Mr B shall have unsupervised contact with
[L] at the following times:
(i)Each Wednesday from 4 pm until 6.30 pm.
(ii)Every second weekend on both Saturday and Sunday from 10 am to 4 pm.
(iii)Such other contact as agreed between the parties.
(c)[Mr B] shall have overnight supervised contact on the weekend that he exercises daytime contact as above on the following terms:
(i)[The paternal grandfather] is to be continuously present during overnight contact.
(ii)Overnight contact shall take place at the home of [the paternal grandfather].
4 KV v RM, above n 1, at [161(a)]–[161(c)].
(iii)In the event [L] becomes distressed, [the paternal grandfather] will facilitate a phone call between [L] and [Ms V] with the aim that [Ms V] will encourage [L] to enjoy his visit. If [L] does not settle, then [the paternal grandfather] shall arrange with [Ms V] for [L] to be returned to [Ms V’s] care.
[18] The final parenting order was subject to a number of conditions for Mr B and for both Ms V and Mr B.5
Submissions
Submissions on behalf of the applicant
[19] Ms Crawshaw QC, for Ms V, refers to the Judge’s finding that L was psychologically abused in Mr B’s care. The finding of psychological abuse was based on findings that:
(a)Mr B viewed pornography while L was in his care;
(b)Mr B engaged in sexual activity with a polyamorous partner on 11 October 2019 whilst L was in his care in breach of a judicial direction that Mr B’s contact would include Mrs B but no other partner;
(c)L, at the age of 16 months, slept in a cot in a bedroom where Mr and Mrs B and another partner (Ms B’s then fiancé) shared the same bed;
(d)Mr B failed to mitigate any harm suffered by L by the introduction of successive short-term partners; and
(e)Mr B failed to prioritise L’s psychological safety.
[20] Ms Crawshaw also refers to the following factors, which were of further concern to the Judge:
5 KV v RM, above n 1, at [161(e)].
(a)Mrs B’s two sons took deliberate action to avoid the risk of their exposure to adult sexual activity in the lounge;
(b)V’s knowledge and use of sexualised language; and
(c)Mrs B’s failure to address the school’s concerns regarding the sexualised behaviours exhibited by the older of her two sons.
[21] Ms V’s position is that there is a continuing risk of psychological abuse to L when he is in Mr B’s unsupervised care. She says it is in L’s welfare and best interest to preserve the status quo (i.e. a return to the interim order) until her appeal has been determined to avoid any unnecessary risk for L.
[22] Based on the Judge’s findings, Ms Crawshaw identified the key risk issues as relating to:
(a)the exposure of L to the polyamorous lifestyle of Mr and Mrs B, which included findings by the Judge of sexual activity in the B household in a communal living area with other adults, and the introduction of the children to other partners of Mr and Mrs B;
(b)sexualised behaviours by other children living in the B household, namely V and Mrs B’s 13 year old son;
(c)avoidant behaviours of other children living in the B household (Mrs B’s two sons) deliberately planned by the two boys so as to prevent them from witnessing adult sexual behaviour in the living room;
(d)L sleeping in a cot in the same room as Mr and Mrs B and a sexual partner (Mrs B’s then fiancé); and
(e)exposure of L and the other children in the B household to sexualised language in that household.
[23] Ms Crawshaw submits a stay of the decision will protect L from the risk of further psychological harm in the B household until such time as the appeal is heard.
[24] Ms Crawshaw submits this Court ought to take a cautious and protective approach and grant a stay until at least the decision from the appeal is given (if the appeal succeeds, then the current orders will be set aside in any event).
[25] Ms Crawshaw notes the Judge referred to Mr B’s breach of two judicial directions in the past. There was a finding that Mr and Mrs B misled the Court appointed psychologist Ms Clough regarding L’s safety in their care. Ms Crawshaw submits the safety risks that she identifies and which I have set out above, combined with Mr B’s misleading of the Court in breach of judicial directions in the past, raise significant concerns for L in Mr B’s unmonitored care whilst the parties await the hearing of the appeal and the decision on appeal.
[26] Addressing other factors the Court considers on a stay application, Ms Crawshaw submits there is a risk that the appeal will be rendered nugatory if the stay is not granted, during which time L may be exposed to serious risks while having contact with Mr B. She also submits there is a risk of a new status quo arising and the new arrangements under the final order being normalised. She submits the decision changes the status quo in that contact as now ordered is unmonitored (despite the safety findings made). Unmonitored contact is not the status quo for L (the interim order having been in place for over a year).
[27] Ms Crawshaw submits there is no question that the appeal is completely bona fide. Mr B does not take issue with that submission.
[28] Ms V has filed an affidavit in support of the application for a stay. In the decision, Judge King referred to L’s deteriorating behaviour.6 However, the Judge said she was unable to determine the source of that deteriorating behaviour.7 She referred to the fact that both parties agreed with the recommendation of Ms Clough for L to be
6 KV v RM, above n 1, at [128]–[138].
7 At [139].
assessed by a child psychiatrist to consider a basis and possible diagnosis for the source of his behaviours.8
[29] In her affidavit, Ms V’s says that L’s behaviour has continued to deteriorate. She says L has an appointment with a paediatrician for an assessment, which includes testing for autism and attention-deficit hyperactivity disorder. L was being assessed by a child psychiatrist. However, that assessment has been put on hold because L’s general practitioner referred him to the Mental Health Crisis Team on 25 July 2021 following comments from L saying, “I’m a loser. Nobody loves me. I want to die”.
[30] Ms Crawshaw makes it clear that she does not submit this Court should make a finding that Mr B is responsible for the deteriorating behaviour. But equally she submits the Court is not required to find a causal link in order to grant the application for a stay. Ms V’s position is, for all the reasons I have earlier mentioned, that there is an unacceptable risk to L if Mr B’s contact with L is not monitored.
Submissions on behalf of respondent
[31] Ms Dore, for Mr B, submits that the Judge’s finding of psychological abuse was based on the extended definition of family violence. The finding was based on s 11(2)(b) of the Family Violence Act 2018, namely that there was a real risk of L seeing or hearing abuse. Ms Dore submits there was no factual finding that L had in fact been physically exposed to the abuse, nor that he had been harmed by the risk of abuse. She submits there is no causal link between the finding of risk of psychological abuse to L’s current behaviours. She also notes that the parties have been dealing with the concerning behaviour evidenced by L since before the Family Court hearing in March 2021.
[32] Ms Dore submits that the event that the Judge placed some weight on, namely the sexual activity between Mr B and another woman, DW, which occurred in the lounge of the family home while the children were in bed asleep, occurred some two years ago.
8 KV v RM, above n 1, at [139].
[33] Ms Dore submits this is not a situation where the appeal will be rendered nugatory if the stay is not granted.
[34] Ms Dore further submits that the Judge’s concern and the area that continued to pose a safety concern for L in his father’s care was evenings and overnight but she submitted that L is safe in his father’s unsupervised care for the purposes of daytime contact.
[35] Ms Dore also notes that the evidence suggests that L does not cope well with change and the granting of a stay will mean yet another change to the contact routine that L and the parties have been adhering to for the past two months since the decision.
Lawyer for the child’s submissions
[36] Mr Hart, lawyer for L, submitted that the risky behaviour in the B household was Mr and Mrs B’s focus on adult activities, particularly sexual activities, with potential for inappropriate exposure to children or there was otherwise a risk of causing psychological harm to the children.
[37] Mr Hart submitted that the conditions of the final order could keep L safe if Mr and Mrs B comply with the spirit and intent of the order. Mr Hart said, however, the issue is whether the Court can trust Mr B in the circumstances. Those circumstances include that the Judge found that Mr and Mrs B misled Ms Clough (when she prepared her first report) and further that they had breached a judicial direction by allowing the sexual partner, DW, into their home.
[38] On the other hand, Mr Hart noted that the Judge in her safety assessment considered there had been no breach of the interim orders.
[39] Mr Hart submitted that the situation was finely balanced and in any event the parents needed to find a way to reduce adult tensions and conflict and the making of unnecessary comments around L.
[40] Mr Hart submitted that if the Court were to reach the view that protective conditions imposed in the final order are insufficient (in the context of parties who
have misled a report writer and breached prior judicial direction), then he submits the Court must act protectively.
[41] Mr Hart also refers to the submission he made in the Family Court that L wished to have more contact with his father. The final order achieved that, giving L around six more hours a month contact with his father.
The law
[42] The filing of an appeal does not operate as a stay. Rule 20.10 of the High Court Rules 2016 provides:
20.10 Stay of proceedings
(1)An appeal does not operate as a stay—
(a)of the proceedings appealed against; or
(b)of enforcement of any judgment or order appealed against.
(2)Despite subclause (1), the decision-maker or the court may, on application, do any 1 or more of the following pending determination of an appeal:
(a)order a stay of proceedings in relation to the decision appealed against:
(b)order a stay of enforcement of any judgment or order appealed against:
(c)grant any interim relief.
(3)An order made or relief granted under subclause (2) may—
(a)relate to enforcement of the whole of a judgment or order or to a particular form of enforcement:
(b)be subject to any conditions for the giving of security the decision-maker or the court thinks just.
[43] The general rule is a party is entitled to enjoy the fruits of a judgment in its favour.9 In determining whether to grant a stay, this Court will engage in a balancing
9 Brook Valley Community Group Inc v Brook Waimarama Sanctuary Trust [2017] NZCA 377 at [10].
exercise, weighing up the position of both parties.10 Relevant factors have been held to include: whether appeal rights would be rendered nugatory if the stay were not granted; the bona fides of the applicant; whether other parties will be injuriously affected by the stay; the public interest in the proceeding; the apparent strength of the appeal and the overall balance of convenience.11
[44] The factors are somewhat different in proceedings under the Act but a similar weighing approach is required. More particularly, in cases involving families and the Act, the relevant principles to be applied in a stay application are those adopted by Priestley J in Crosby v Crosby12 and which were approved by the Court of Appeal in WAH v WTW:13
(a)The overriding consideration is the welfare of the children.
(b)Whether or not the appeal will be rendered nugatory if a stay is refused will be a highly relevant consideration.
(c)The arguments in favour of a stay will be stronger if the decision under appeal has the effect of significantly changing the status quo.
(d)The Court will have regard to any evidence of lack of bona fides in the filing of an appeal and an application for stay as a consequence.
(e)The reluctance of the High Court on appeal to interfere with findings of credibility, and the disposal of an appeal largely or entirely on the evidence heard in the Family Court, decrease the prospects of successful appeal and hence weaken the arguments in favour of a stay.
(f)The merits of the appeal. A stay will be more likely to be granted where there are strong grounds to support the appeal and vice versa.
(g)Each case will turn on its own facts. The length of time before the appeal is likely to be heard, the current circumstances of the parties and children, and the consequences of delay pending hearing of the appeal will all be relevant.
[45] The Court of Appeal referred to the reservation expressed by Priestley J in relation to principle (e) saying:14
10 Dymocks Franchise Systems (NSW) Pty Ltd v Bigola Enterprises Ltd [1999] 3 NZLR 239, (1999) 13 PRNZ 48 (HC).
11 Keung v GBR Investment Ltd [2010] NZCA 396 at [11].
12 Crosby v Crosby HC Auckland AP124-SWO1, 21 December 2001 at [29]–[30].
13 WAH v WTW [2010] NZCA 344 at [20]–[22].
14 WAH v WTW, above n 13, at [21].
… [Priestley J] thought it would be wrong if there was a perception that the prospects of success on appeal would be decreased or would be minimal in cases depending substantially on findings of credibility and the exercise of discretionary judgment. Priestley J pointed out that there may be other reasons such as developments since the initial hearing which could influence the outcome of the appeal and that appellate judges would, in any event, give anxious consideration afresh to all relevant factors.
[46] In addition to endorsing the principles above, the Court of Appeal added that plainly a stay will more likely be granted where there are strong grounds to support the appeal and vice versa. The Court of Appeal also endorsed Priestley J’s observations referred to in the above quoted paragraph.
[47] Finally, the Court of Appeal noted that although Crosby v Crosby was decided under the Guardianship Act 1968, the Court could see no difference in approach to stay applications under the Act.15 The Court stated that the welfare and best interests of the child remain the first and paramount consideration.16
Decision
[48] L’s welfare and best interests in his particular circumstances is the first and paramount consideration.17 I accept that in the light of the risks identified by the Judge the Court should take a cautious and protective approach on this application. I take into account the following:
(a)When the Judge made her interim order there was clear evidence that Mr B had breached two judicial directions and the Judge made a finding that Mr and Mrs B misled the Court-appointed psychologist Ms Clough regarding L’s safety in their care;18
(b)Although the Judge stated that there was no evidence that Mr B had breached the terms of the interim order, I accept Ms Crawshaw’s submission that a Court will not necessarily have visibility into what is happening in a household;
15 WAH v WTW, above n 13, at [23].
16 At [23]; and Care of Children Act 2004, s 4(1).
17 Section 4(1).
18 KV v RM, above n 1, at [38] and [40] and [46].
(c)When the safety risks identified by the Judge and referred to by Ms Crawshaw in her submissions are put together with Mr B’s earlier misleading of the Court in breach of judicial directions in the past, and the misleading of Ms Clough, there are concerns for L in Mr B’s unmonitored care while the parties await the hearing of the appeal;
[49] I do not see a reason to make a distinction as Ms Dore does between risk at night time and risk during the day. In that regard, the Judge, in her 6 July 2020 judgment making the interim order, referred to Mr B accessing pornography on his cell phone and engaging in a seven and a half hour online chat conversation with his wife and a couple with whom Mr and Mrs B were in a polyamorous relationship, whilst L was in his care.
[50] There was some discussion at the hearing in this Court over the Judge’s statement that she took into account Ms Clough’s evidence that requiring L’s daytime contact in the B home to be monitored was no longer required.19 While the notes of evidence for the hearing are not yet available to this Court, no counsel disagreed with Ms Crawshaw’s submission that the Judge’s evidential reference for that statement does not in fact support what the Judge said. Further, it appears to be inconsistent with the evidence of Ms Clough, that if the Judge were to find risk, then contact with Mr B should be supervised. Ms Clough stated that when she used the word “supervised” she meant supervised by a family member. She said she was comfortable with unsupervised contact in a public place.
[51] The above factors all provide a basis for granting the application. On the other hand, I bear in mind that: L is said to be resistant to change; that reverting to the interim order will reduce L’s contact time with his father by about six hours per month; and that Mr Hart made the submission at the hearing in the Family Court that L was in fact wanting more time with his father.
[52] I consider that there is a way of balancing the need to ensure that L is safe and also having the extra six hours contact per month with his father. The extra time accords with the principle in s 5(e) of the Act and it will also mean that there is not a
19 KV v RM, above n 1, at [142].
further change for L as the days/times will continue to be the same as under the order that has now been in operation for two months. In other words, rather than reverting to the contact hours in the interim order, I will make an order adopting the contact hours in the final order but direct that the contact is to be monitored rather than unsupervised (unless the contact is in a public place as in the interim order).
[53] The monitoring process, as directed in the interim order, is not as intrusive as supervised contact (which is what Ms V will seek on the appeal). But the ability of the monitor to check in at any time will provide the necessary degree of oversight.
[54] In his affidavit in opposition to the application, Mr B referred to potential difficulties with family members being available to monitor the contact. However, Mr B does not say that his mother-in-law (who is presently living with them and who was previously approved by Mr Hart as a monitor) could not act in that role. Further, there is no evidence that the paternal grandfather, who was approved by the Family Court Judge in relation to overnight supervision, is not available to act as a monitor. To me, these are logistical or machinery issues, which should be able to be overcome.
[55] When I discussed the possibility of making an order in such terms, that is maintaining the contact at the increased level ordered by Judge King but on a monitored basis, Ms Crawshaw accepted that while it was not Ms V’s preferred position, it would be open to the Court to make such an order.
[56] The reversion to monitoring is not such a significant change but appropriately provides a risk protection mechanism, pending the hearing of the appeal.
Result
[57] I grant the application in amended terms as discussed and order that the final parenting order of Judge King in the Family Court dated 4 August 2021 is amended as follows until such time as the appeal against the decision of Judge King making such order is heard:
(a)By deleting the word “unsupervised” in [161](b) and replacing it with the word “monitored”;
(b)By the addition of the following paragraphs after [161](b)(iii):
(bb)Contact that takes place in a public place does not require the involvement of a person approved as a monitor by Mr Hart;
(bbb) Contact that takes place anywhere other than in a public place shall be on the following conditions;
(i)Such contact shall be monitored by a person approved by Mr Hart other than contact that takes place either at the paternal grandparents’ home or with either of them being present;
(ii)The monitor must be present at the commencement and conclusion of contact and may call in at any other time;
(iii)The monitor must have an understanding of planned activities for the contact period.
Gordon J