L v M HC Auckland CIV 2009-404-6978

[2010] NZHC 612

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2009-404-6978

BETWEEN  L Appellant

ANDM Respondent

Hearing:         25 February 2010

Appearances: A M McCormick for appellant

E J Tait for respondent
E Parsons for children

Judgment:      20 April 2010

JUDGMENT OF ALLAN J

In accordance with r 11.5 I direct that the Registrar endorse this judgment with the delivery time of 4 pm on Tuesday 20 April 2010

Solicitors:

Brandts-Giesen McCormick, PO Box 306, Rangiora

Malley & Co PO Box 1202 Christchurch 8140

E Parsons, PO Box 46 318, Herne Bay, Auckland

L V M HC AK CIV-2009-404-6978  20 April 2010

[1]      This is an appeal from a judgment of Judge Ryan in the North Shore Family Court, given on 24 September 2009, in which orders were made permitting limited contact between the appellant mother and the two children of the former marriage of the parties.

[2]      On appeal Mr McCormick contends that the decision was wrong, in that a properly conducted evaluative assessment would have resulted in more extensive contact.

Factual background

[3]      The relationship between the parties ended in 2004.  They were then living in Christchurch.  There were two children, a girl (C) who is now 13 years old, and a boy (J) who is 11.

[4]      In 2005, Mr M relocated from Christchurch to Auckland with the children. Both parties made applications to the Family Court in respect of the children.  At the conclusion of a defended hearing in the Christchurch Family Court in 2006, Judge Somerville made parenting orders which defined the terms upon which Ms L (who had remained in Christchurch and repartnered) should have contact with the children. In summary, the order provided that:

a)       Ms L should have contact with the children seven times a year, once in Christchurch and six times in Auckland;

b)Her travel and accommodation costs for the Auckland visits were to be met by Mr M up to a total cap of $3000 per annum.  In addition, Mr M was to fund the children’s annual trip to Christchurch;

c)      The first contact sessions were to be supervised by an approved supervisor and funded pursuant to s 62 of the Care of Children Act

2004.

[5]      At the time of the 2006 hearing, Mr M’s father owned a well established and successful business, and it was agreed that Mr M, with assistance from his parents, would fund the contact visits.

[6]      However, the terms of these orders proved difficult to implement in practice. The children visited Ms L at her home in Amberley, North Canterbury, in September

2006 and April 2007.  Each was a supervised visit as directed by Judge Somerville. For her part, Ms L visited the children in Auckland in early 2007.  Again that was a supervised visit.  For the most part, these three supervised visits passed off without incident, but other contact between Ms L and her children, chiefly by telephone, was sporadic.

[7]      In January 2008 there was an abortive trip by Ms L to Auckland to see the children.  They were not where she expected them to be.  Ultimately she returned to Auckland Airport in order to fly home without seeing them.  At a late stage however, the children, along with Mr M’s parents, arrived at Auckland Airport to see Ms L.  I will return to the January 2008 visit, because an incident which occurred when the children finally saw Ms L at the airport looms large in the decision now under appeal.

[8]      Between January 2007 and December 2008, Ms L filed various applications in  both  the  Christchurch  and  North  Shore  Family Courts  in  which  she  alleged breaches of the 2006 order by Mr M, and sought to improve her contact rights.  But the Court is now told that Ms L was not at the time represented by counsel, and the various proceedings were eventually struck out.

[9]      More recently however, Ms L was able to retain counsel, and an application was made to the North Shore Family Court which led to Judge Ryan’s decision of 24

September 2009.

[10]     Before Judge Ryan, Ms L sought unsupervised contact with the children at her home in Amberley four times a year.

Judge Ryan’s decision

[11]     Judge Ryan was unable to accede to Ms L’s application.  He considered that contact between her and the children must be supervised (for the purposes of this appeal there is now no challenge to that aspect).   He further directed that contact should occur on only two occasions in each year in Auckland, and that the costs of Ms L’s travel to and from Auckland should be shared equally between the parties. This latter direction was based on the joint guardianship obligation borne by the parties, and in the light of their very limited financial means.

[12]     The business formally owned by Mr M’s father has recently failed and he is not in a position to assist the parties financially.   Ms L herself has been declared bankrupt.  It seems she may be working at least part time, although she now has a very young child by her new partner.  For his part, Mr M is working full time, but in receipt of only an average wage.

[13]     Contact  between  the  children  and  their  mother  in  Auckland  is  to  be supervised by someone who is approved by Ms Parsons, counsel for the children. The Judge envisaged that counsel may be able to define fixed times for regular telephone contact between the children and Ms L, and that they may well play a role in making arrangements for the two yearly Auckland visits.

[14]     The result was that contact arrangements for Ms L to see her children were very much more restricted than had been ordered in 2006.  The Judge considered that there were two primary reasons why more liberal contact ought not to occur.  First, he accepted the unchallenged evidence of the Court appointed psychologist, Dr Calvert, to the effect that Ms L was emotionally unstable and unable to manage her own behaviour, with the result that the children have become alienated from their mother by reason of their experiences with her over the last five or six years or so, most of which have been negative.

[15]   The second consideration, connected with the first, is that the children themselves, who were interviewed by the Judge in chambers prior to the hearing, were adamant that they would not contemplate going to Christchurch to see their

mother, and indeed, did not want even to telephone her, nor to meet face to face with her while she was in Auckland for the hearing.

[16]     In reaching his conclusions, the Judge was plainly heavily influenced by the very detailed evidence given by Dr Calvert, who has had a long association with these children.  Despite being extensively cross-examined, the Judge noted that she was not persuaded to alter her views.

[17]     In  a  relatively  short  judgment,  the  Judge  made  specific  mention  of  the January 2008 incident at Auckland Airport.   Although there is disagreement as to how and why Ms L missed the children during the day on her Auckland visit, there is broad agreement about what happened at the airport.   When Ms L met with the children they were accompanied by Mr M’s parents.  Their grandmother asked Ms L how she was.  Her response was rude and aggressive.  Mr M’s mother then moved to take the children away, affronted by Ms L’s response.  Ms L was dismayed at this turn of events, and touched or grabbed the children’s grandfather on the shoulder. The  Judge  noted  that,  whatever  the  truth  about  that  incident,  Ms L  acted  in  a completely inappropriate fashion, so entrenching the children’s negative views of their mother.  In that respect the Judge said:

Because of her inability to manage her behaviour and her lack of insight into the effect of that behaviour on her children, C and J have simply withdrawn from the prospect of having any direct contact with her whatsoever.

[18]     The Judge’s reasoning was encapsulated in a brief passage from his judgment which reads:

[9]The psychologist’s recommendation for contact was e-mails, letters and two face to face supervised contact occasions each year in Auckland.   The psychologist believed that notwithstanding the children’s  objection  to  face  to  face  contact that  they were  good children and that they would manage that contact if told that they had  to  do  it.      The  father  accepted  the  psychologist’s recommendation.

[10]    The thrust of the psychologist’s evidence is that it would be unreasonable to require the children at this stage to have anything but  minimal  contact with their mother  until they can  experience contact that  can  go  well.   Their  experience  of contact  has  been negative and emotionally damaging.  It will take time to heal and it will  need  positive   reinforcement   from  regular  and   consistent

successful contact occasions before there can be any contemplation of the children spending more than a few hours in Auckland with their mother.

…

[12]There is no compelling evidence to contradict the psychologist’s recommendations therefore I find that, taking into account both the principles set out in s 5 and the children’s views as I must contact between the children and their mother (in order to keep the children emotionally  and  physically  safe)  must  be  supervised  and  that  it should only occur on two occasions in each year in Auckland.

The case for the appellant

[19]     Mr McCormick submits that Judge Ryan gave undue weight to the evidence of Dr Calvert, regarding the type of contact regime that would be in the best interests of the children.  He submits also that the Judge accorded undue weight to the views of the children themselves, as to the type of contact regime which should be implemented.

[20]     The  result,  he  argues,  was  that  the  Judge  simply  accepted  uncritically Dr Calvert’s evidence and the preferences of the children, so leading to a result that did not adequately recognise the strength of Ms L’s case for contact four times a year in Christchurch.

The approach on appeal

[21]     In Austin, Nichols & Co Inc v Stitchting Lodestar [2008] 2 NZLR 141, the Supreme Court had occasion to review the jurisdiction of this Court on appeal. That case involved an appeal under the Trademarks Act and considered in particular the extent to which this Court ought to defer to a decision of a specialist Tribunal such as the Trademarks Commissioner. At [16] Elias CJ said:

Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion is an assessment of fact and degree and entails a value judgment. If the appellate court’s opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ. In such circumstances it is an error for the High Court to defer to the lower

Court’s assessment of the acceptability and weight to be accorded to the evidence, rather than forming its own opinion.

[22]     Subsequently, in Carpenter v Armstrong HC Tauranga CIV-2009-470-511,

31 July 2009, Heath J noted that Family Court appeals are conducted by way of rehearing, and so fall within the scope of an appeal to which the Austin, Nichols approach applies.  Accordingly, insofar as a Family Court judgment involves mixed findings of fact and law and the making of an evaluative assessment, the principles in D v S [2003] NZFLR 81 (CA) remain applicable. There, Blanchard J said at [18]:

… An appeal to the High Court from the Family Court is an appeal by way of rehearing. Whilst the High Court will naturally give weight to the views of the specialist Court and may in some cases think it best to remit the case for reconsideration, it is fully entitled to substitute its views on questions of fact, including the issue of what is in the best interests of the child or children concerned. There is no rule of law requiring the High Court to defer in these respects to the Family Court even in a finely balanced case.

[23]     However, where a Family Court Judge exercises a discretion, the principles enunciated  in  May  v  May  (1982)  1  NZFLR  165  (CA)  apply:    Blackstone  v Blackstone (2008) 19 PRNZ 40 at [8].

Discussion

[24]     It is not really in dispute that Ms L, although intelligent and able to care for the children in a general sense, has had her difficulties at times in coping with the stresses of everyday life.  In the past, those problems have manifested themselves in the context of her care of the children.  On occasion her emotional fragility has led to erratic behaviour towards them;  that in turn leading to a heightened state of anxiety on the children’s part and a general deterioration in the relationship between mother and child.

[25]     There is evidence that J was particularly affected by these difficulties.   He exhibited very severe behavioural problems while living with Ms L.  Several reports from specialists who treated him at the time are before the Court.  Most, if not all, of these problems have disappeared over time since he came to Auckland to live with his father.

[26]     Dr Calvert summarised the position in this way in her evidence:

10.1.1  The children have a secure attachment dynamic with their father.

They view him as their primary adult ally as well as their parent.

10.1.2 The children are ‘alienated’ from their mother.   In my view these children meet the criteria for being assessed as alienated (or realistically estranged) as described in the literature.  In my opinion, however, the process of alienation is primarily a result of their mother’s behaviour towards them and their father and her own psychological state.  It appears that Ms L has always had difficulty with ‘affect regulation’ and that as young children, C and J had to cope with this.  At times it is likely that Ms L’s difficulty led to a low level of physical violence or at least to the children feeling scared about her emotional state.   The difficulties escalated to the extent that Ms L felt unable to care for the children, thus leading them to feel abandoned by her.  There was continuing conflict which was often generated by Ms L’s intensely felt beliefs about Mr M. Once the children moved to the North Island the opportunity (remote though it might have been) to help the children to develop a degree of resilient coping in respect to their mother, was lost.  Contact has continued to be extremely conflictual with Ms L often determining that contact should cease (leading to a further sense of abandonment for the children).  There has been direct ‘conflict’ which the children have witnessed and been involved in.

[27]     Elsewhere in her evidence, Dr Calvert said of Ms L:

[Her] way of being in the world clearly impacts on C and J and forms the most significant reason for their alienation from her …  I, myself, have experienced the difficulty of trying to engage with Ms L.  Her intense emotional labiality and her, in my opinion, irrational views of situations, despite every effort made by myself to provide her with helpful ways to progress this situation, she remained unable to engage in that way and was usually distressed and hostile.

[28]     Mr McCormick submits that Dr Calvert’s evidence ought to be treated with caution, in that by reason of the malfunctioning of the contact regime, she was not able to observe Ms L with the children at all, let alone in her own environment at home in Amberley.   Dr Calvert did visit Ms L in Amberley, but of course the children were not there at the time.   She was also able to observe a telephone conversation  between  Ms  L  and  her  children,  who  telephoned  their  mother  at Dr Calvert’s direction and in her presence from their home in Auckland.  Dr Calvert accepted in her evidence that the telephone calls seemed to go well, but they took a turn for the worse when she herself took the telephone and spoke to Ms L.  At that point, according to Dr Calvert, Ms L became emotional and aggressive towards her.

[29]     Dr  Calvert  believed  that  the  children’s  negative  attitudes  towards  their mother  would  have  been  reinforced  by their  presence  near  the  telephone  while Dr Calvert endeavoured to cope with Ms L’s verbal aggression.  She also considered that the children’s view of their mother must have been further adversely influenced by the Auckland Airport incident, where they witnessed their mother reacting aggressively without reason, and then what seems to have been at least a scuffle between Ms L and their grandfather.

[30]     Mr McCormick  is  critical  of  the Judge’s  decision  to  accept  Dr  Calvert’s second-hand evidence of the Auckland Airport incident over the somewhat different account given by Ms L herself, but that criticism largely misses the point.   The question is not so much as to precisely what occurred.  The issue is simply that Ms L, in circumstances where she was afforded an opportunity of seeing her children, reacted so inappropriately and aggressively (whether or not there was an assault on her part), that the opportunity was lost and the children became distressed.

[31]     Dr Calvert saw the children in their own home and at her office, but thought it impracticable to endeavour to see Ms L in the company of the children, given that there was no agreement as to how that might be set up, and because there had been little effective contact between them and Ms L for several years.

[32]     As Ms Parsons submits, it is noteworthy that Dr Calvert was not directly challenged in respect of the continuing validity of her opinion about the children’s views  of  their  mother,  given  that  she  had  not  seen  them  together  with  Ms L. Although Dr Calvert was extensively cross-examined, she was unshaken in her view that, at least for the time being, contact should be limited to two visits a year, to be undertaken in Auckland on a supervised basis.   Her opinion was that the children have effectively become estranged from Ms L, by reason of their experiences of her, and also by reason of the paucity of contact in recent years.

[33]     It is important to note that Ms L does not suggest that the estrangement has resulted from undue pressure from Mr M or his parents, or indeed anyone else.

[34]     Mr McCormick submits that Judge Ryan was wrong to accept Dr Calvert’s perceptions of Ms L’s behaviour without qualification, in light of the very limited opportunities Dr Calvert had to observe Mr L in her own environment, or with the children, and given also that the children have seen their mother only six times in about five years.

[35]     It is, of course, a most unfortunate circumstance that there has been such limited contact between mother and children over a number of years.  Part of the task that lies ahead is to repair that relationship.  But, as Dr Calvert observes, the repairs must  be  undertaken  sensitively  and  by  degrees.    Quite  properly,  that  was  a significant factor in Judge Ryan’s judgment and also the earlier decision of Judge Somerville.

[36]     Only   limited   weight   can   be   accorded   Mr McCormick’s   criticism   of Dr Calvert on the score of her limited opportunity to observe Ms L in her own home. Dr Calvert did travel to Amberley specifically for the purpose of meeting Ms L.  She was there for some time and provided a detailed report to the Court about the visit, which was plainly stressful for Ms L.  At the time she was pregnant and there were financial problems.

[37]     In the course of Dr Calvert’s report she said:

6.3Ms  L  was  emotionally  distressed  even  before  we  started  the interview formally.   Throughout it she struggled to manage her emotional states and towards the end she became quite angry and hostile.  Ms L has acknowledged subsequently to myself and others that she was emotional when she saw me.

…

6.7Ms L was extremely distressed and had a limited capacity to either observe, monitor or manage her feelings.   At times she seemed unaware of how things she was telling me were causative of her emotional state.

…

6.22I have noted highly distressed, not very coherent, unable to stay on topic, moves back to her anger and distress at M, shows limited insight into the consequences of her own choices such as those to decrease contact through phone, parenting plans etc.

…

6.31At this stage I was extremely worried about Ms L’s emotional state, the difficulty she was having in managing her emotional and psychological state and her inability to address suggestions of a way to proceed.  I have noted ‘almost split within herself, no perception of her own anger … not able to manage herself in this setting’.

…

6.36By this time I was seriously worried about Ms L’s distress, her limited self-management and the potential impact this was having on her and on her baby.  As a result and because I felt I had adequate information for me to complete my report, I left.

[38]     Dr Calvert’s report to the Court was extremely thorough, and of course Judge Ryan had the subsequent benefit of hearing her cross-examination.   There was no other expert witness.   It is not in the least surprising that the Judge ascribed considerable weight to her evidence.  There is no basis for concluding that he was wrong to do so.

[39]     Mr McCormick’s second ground of appeal relates to the weight given by the Judge to the views of the children about future contact with their mother.  C is now about 13½ years old.  J is approaching 12 years.  The Judge thought that they were “great children”.  He described them as:

… sensitive, intelligent, happy and relatively self-assured, given the relevant recent history of what is undoubtedly a dysfunctional relationship with their mother.

[40]     The Judge was bound to take into account the views of the children:  Section

6(2)(b) of the Care of Children Act 2004 was discussed in C v S [2006] 3 NZLR 420 where at [31] Randerson J noted that:

(a)       the term “views” was a somewhat wider concept than “wishes”;

(b)       any views expressed by the children “must be taken into account”, a stronger direction than the commonly encountered formula “shall have regard to”, but that the Court is not obliged to act in accordance with any view expressed by the child;

(c)       it is proper to take into account the age and maturity of the child in determining what weight should be given to the child’s expressed views, even though there is now no express reference in the Act to age and maturity, in contrast to s 23(2) of the Guardianship Act

1968.

[41]     There is nothing to suggest that the Judge accorded improper weight to the views of the children.   His findings are summarised at [12] of his judgment, reproduced above.  He took into account both the principles set out in s 5 of the Act and the children’s views, noted that there was no compelling evidence to contradict the psychologist’s recommendations, and determined that contact must be supervised and should be limited to two occasions in each year in Auckland.  In my opinion the Judge was perfectly entitled to reach his ultimate conclusion by reference to the factors he identified.

[42]     Among the principal considerations is of course Ms L’s emotional fragility and the degree of alienation which has developed between her and the children over time, partly in consequence of her own problems, but partly also due to geographical separation and, more recently, financial constraints.

[43]     The relationship between Ms L and the children requires careful and sensitive reconstruction.  That will take time.  The Judge considered that two visits by her to Auckland each year represented an appropriate starting point.  It cannot be said he was wrong to reach that conclusion.   Money is now a significant problem.   Quite apart from the problematic personal aspects of regular visits to Christchurch, the parties simply cannot afford to pay the cost of travel and accommodation of the two children to Christchurch.  Nor can they afford the cost of a supervisor which they would need to bear, the s 62 regime having, the Court is told, broken down by reason of inadequate funding.

[44]     The Judge’s decision simply reflects what is appropriate both at personal and financial levels.

[45]     At the outset of his judgment, Judge Ryan termed this a “sad case”, and so it is.   These are good people striving to do their very best for their children.   The Court’s primary task is to act in the best interests of the children, and to assist the parties to achieve the best contact outcomes reasonably available in the circumstances.   In my opinion Judge Ryan’s decision properly reflects what is, at present, a realistic solution to a difficult problem.

Result

[46]     For the foregoing reasons the appeal is dismissed.

[47]     Costs are reserved.   It is understood Ms L is in receipt of legal aid.   If however, the assistance of the Court is required in respect of costs, counsel may file appropriate memoranda.

C J Allan J