Lister v Roberts
[2021] NZHC 2775
•15 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,
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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV 2021-404-1783
[2021] NZHC 2775
UNDER Section 143(2) of the Care of Children Act 2004 and s 124 of the District Courts Act 2016 BETWEEN
LISTER
Appellant
AND
ROBERTS
Respondent
Continued
Hearing: 12 October 2021 (by VMR) Appearances:
Lister in person Roberts in person
S Abdale for appellant in CIV 2021-404-1784 B P C Carter counsel assisting the Court
V A Crawshaw QC for intended interested parties
Judgment:
15 October 2021
JUDGMENT OF CAMPBELL J
This judgment was delivered by me on 15 October 2021 at 4:00 pm pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar
LISTER v ROBERTS [2021] NZHC 2775 [15 October 2021]
CIV 2021-404-1784
UNDER Section 143(2) of the Care of Children Act 2004 and s 124 of the District Courts Act 2016 IN THE MATTER OF
An appeal against a judgment of the Family Court at Auckland
BETWEEN
JOHN LISTER ROBERTS by PRICE his
litigation guardian Appellant
AND
LISTER
First Respondent
ROBERTS
Second Respondent
[1] These proceedings are two appeals from a judgment of Judge S J Fleming in the Family Court at Auckland dated 19 August 2021.1 The Judge made orders under the Care of Children Act 2004 for gradually increasing contact between Mr Roberts and his son, John, who is aged 12. One appeal is brought by Ms Lister, John’s mother.
The other is brought by John by his litigation guardian Dr Price.2
[2] John’s maternal grandparents, Ms Joseph and Mr Lister, have applied for leave to intervene as interested parties in the two appeals.
Background
[3] John and his parents were born in [another country]. They moved to New Zealand in October 2018. John has no other family connections in New Zealand. Ms Joseph and Mr Lister are his only grandparents. They live in [another country].
[4] Ms Lister is in her late forties. She is legally trained and has considerable legal expertise. Mr Roberts is in his early seventies. He practised law for many years in [another country]. He is now retired. He was diagnosed with cancer in 2010. He underwent treatment and his cancer is in remission.
[5] Mr Roberts and Ms Lister commenced their relationship in 2005 and were married in 2007. They separated in late 2019. During their relationship there were lengthy periods when John was effectively in the sole care of Ms Lister because he was living with her overseas while Mr Roberts remained working in [another country], though he would visit and stay with them from time to time.
[6] Following separation there was no contact between John and Mr Roberts for some months, except for a brief period over Christmas 2019. Mr Roberts applied to the Family Court in February 2020.
[7] Ms Lister and John live in [Suburb One]. Mr Roberts lives in an apartment in [Suburb Two].
1 Roberts v Lister [2021] NZFC 6541.
2 I have anonymised the names of the parties.
Family Court judgment
[8] The Judge said there were two incidents in October 2019 that led to the separation and to difficulties with John having contact with his father. The first was on 1 or 2 October. There was a dispute between John and his father. John complained to his mother. The Judge set out the differing accounts that were given to her of that incident. It is not necessary for me to repeat them here.
[9] The second incident was on 8 October. Mr Roberts and John were on a ferry. Again, the accounts differed.
[10] The Judge said things must have settled down quite quickly after these two incidents because a few days later John and Mr Roberts went on a planned three-day camping trip that Ms Lister did not attend.
[11] The Judge recorded that Ms Joseph provided two affidavits broadly supporting Mr Roberts. Ms Joseph believed her daughter had exaggerated the two incidents. The Judge said there was a very conflicted relationship between Ms Lister and her parents which had predated the filing of those affidavits.3
[12] The Judge observed the focus had been on the two October events for almost two years. Given the passage of time she said it was particularly difficult to make a finding or to be certain of what occurred.4 She did not consider either incident, “whichever version is true”, represented future risk to John, although there were better parenting methods to ensure compliance with reasonable directions than those adopted by Mr Roberts.5 She was satisfied Mr Roberts was angry and lost a degree of self- control, but said that “even if the incidents were as relayed by John, they are appropriately described as moderately excessive force used to achieve compliance with a direction”.6 She found, however, there were elements of psychological abuse in the interactions, and John was frightened.7
3 At [21].
4 At [22] and [28].
5 At [28].
6 At [28].
7 At [28].
[13]The Judge said that based on all the evidence she was satisfied:8
Mr Roberts’ methods of discipline have involved physical contact which is less than appropriate and has resulted in John being fearful of his father.
[14] Judge Fleming recorded that John and Mr Roberts eventually started supervised contact. This went very well and led to unsupervised contact in 2021. The unsupervised contact was negotiated between John and Mr Roberts with the help of a psychologist at a parenting programme. Unsupervised contact appeared to be progressing well.9 On 24 May 2021, Mr Carter (counsel for the child in the Family Court) reported that John was concerned about his father pressuring him to visit his apartment and said should Mr Roberts continue to pressure him to go to the apartment he would want contact to be supervised again. On receiving that report, Ms Lister proposed contact should be supervised again. There was no further contact, supervised or unsupervised, up until the hearing on 6 and 7 July 2021.10
[15] The Judge said that for John to re-establish normal contact with his father, he needed the wholehearted support and commitment of his parents. She said that Ms Lister had supported and perhaps unknowingly encouraged John’s withdrawal from his father.11
[16] The Judge recorded that John was very clear with her that contact should be supervised.12 The Judge said it was imperative John not lose his relationship with his father.13
[17] The Judge’s view was that John believed he could dictate what he would and would not do when with his father “and he has received a degree of support from his mother in taking that attitude. … She believes Mr Roberts does not parent appropriately, but this belief, albeit possibly unconscious, supports John’s defiance.”14
8 At [29].
9 At [30].
10 At [31] and [32].
11 At [34].
12 At [35]. See also [33].
13 At [35].
14 At [36].
[18] The Judge recognised John was entitled to have his views taken into account, but said his parents had to make some decisions for him. John needed to be freed from responsibility for making decisions about contact with his father.15
[19] The Judge turned to consider whether contact between John and his father should be supervised or unsupervised. The Judge recorded everyone agreed to unsupervised contact except John.16 She found the two October 2019 incidents were not as serious as Ms Lister had described. The Judge noted Mr Roberts had completed programmes and embraced a therapeutic and lengthy approach to the reinstatement of contact and there had been no incidents of concern since contact resumed, even when unsupervised.17
[20] The Judge found that although John told Mr Carter he was frightened his father would be irrationally angry, she was satisfied “this does not present a real risk to John. It is John’s apprehension and it needs to be addressed.”18 The Judge noted John had been content with unsupervised contact which commenced in April 2021. No concerns had been raised until John took exception to going to his father’s apartment despite him agreeing to do so after telephoning his mother.19 The Judge concluded:
[47] I am quite satisfied it is in his best interests for there to be unsupervised contact as agreed by his parents.
[21] The Judge then referred to the applicable principles under the Care of Children Act 2004. In so doing she said:
(a)In terms of s 5(a) (a child’s safety must be protected, in particular from all forms of violence), she was satisfied John was safe in the unsupervised care of Mr Roberts.20 Ms Lister had exposed John inappropriately to adult concerns and in particular had exposed him to her views about Mr Roberts and Ms Joseph. Ms Joseph had last seen John in December and January 2020/2021. She returned to [another
15 At [37] and [38].
16 At [43].
17 At [44].
18 At [45].
19 At [46].
20 At [50].
country] earlier than planned. Despite being upset by his grandmother’s departure, John had since made it clear he did not want any contact with her. The Judge thought John had been influenced by Ms Lister’s views about his grandparents. The Judge thought Ms Lister seemed to lack insight into the unconscious messages she shared with John, but there was no concern (in terms of safety) raised about John remaining in her primary care.21
(b)In terms of s 5(b) (a child’s care and development should be primarily the responsibility of his or her parents), there was a risk Mr Roberts would continue to be marginalised in decision making if John was permitted to continue to determine what contact he had with his father.22
(c)In terms of s 5(d) (a child should have continuity in his or her care, development and upbringing), Mr Roberts’ importance in the life of John had been marginalised and this needed to be addressed to ensure there was continuity in contact. Both parents needed to accept responsibility for this. The Judge did not accept Mr Roberts’ position that Ms Lister was entirely to blame for the difficulties in his relationship with John. It was incumbent on Mr Roberts to learn better parenting techniques. She noted again he had attended a parenting course.23
(d)The Judge regarded the principle in s 5(e) (a child should continue to have a relationship with both his or her parents and the child’s relationship with his or her family group, whānau, hapū or iwi should be preserved and strengthened) as particularly relevant in this case. The Judge’s impression was that John had not been encouraged by Ms Lister to develop his relationship with his father “and at the slightest complaint is able to dictate to his mother what contact will occur, which she supports”.24 The Judge expected that as John’s relationship with
21 At [51] and [55].
22 At [56].
23 At [58].
24 At [59].
his father strengthened, Mr Roberts would also be able to facilitate John’s relationship with his grandparents, which had been lost.25 There was a further imperative: although Mr Roberts’ cancer was in remission, there was no guarantee as to how long that would remain so.
[22] The Judge concluded Mr Roberts had shown insight by attending a parenting programme and following a therapeutic approach in resuming contact. Ms Lister had supported that therapeutic intervention. It was in the best interests of John for orders to be made so John was clear about what contact arrangements were in place and that he (and his parents) needed to comply with the orders.26 The Judge ordered a gradual approach to increasing contact with Mr Roberts:
(a)A day on Saturday for four weeks. There was no prohibition on Mr Roberts taking John to his apartment (and it would be preferable that he did).
(b)For the next eight weeks, contact was to move to overnight from Saturday until Sunday one week and in the alternate week, day only (Saturday or Sunday).
(c)For the next four weekends, contact to increase on the weekend John was staying overnight with his father from Friday after school until Sunday evening, and in the alternate week, day only (Saturday or Sunday).
(d)Contact would then move to every second weekend from Friday after school to Monday morning with no contact in the alternate weekend.
(e)Where there was a public holiday on a contact weekend, contact would extend to include that public holiday.
25 At [60].
26 At [64].
(f)Over school holidays commencing Christmas 2021 John’s care was to be shared by agreement.
Application by Ms Joseph and Mr Lister to intervene in the appeals
[23] John and Ms Lister filed their respective appeals on 16 September 2021. John did so through his litigation guardian, Dr Price.
[24] Ms Joseph and Mr Lister have filed an application to intervene as interested parties in the two appeals. In summary, their grounds of application are:
(a)They have brought their own proceeding in the Family Court seeking parenting orders for contact with John.
(b)Judge Fleming, in the decision under appeal, made reference to John’s relationship with them as his maternal grandparents.
(c)The parenting orders made by Judge Fleming indirectly affect them. It would be unjust to decide the appeals against those orders in their absence.
(d)Their interests in the issues on appeal are not adequately represented by the existing parties.
(e)Allowing them to intervene would improve the quality of the information before the Court. They are represented by senior counsel whereas Ms Lister and Mr Roberts represent themselves.
(f)They are only seeking to intervene for a limited purpose: to assist the Court in its consideration of the interests of John, particularly in relation to John’s ability to maintain a relationship with his maternal grandparents through his contact with his father.
[25] Ms Lister and John (by Dr Price) oppose the application. Mr Roberts supports it.
Principles governing applications to intervene as interested parties
[26] The Court has jurisdiction to allow an interested party to intervene in a proceeding. There are differences between intervention as an interested party and joinder as a party. A person joined as a party has a right of appeal, whereas as an interested party does not. A court is able to tailor the level of an interested party’s involvement in the proceeding.27
[27]In Capital and Merchant Finance Ltd (in rec and in liq) v Perpetual Trust Ltd
Thomas J summarised the principles for intervention:28
(a)An applicant must show that its legal rights against or liabilities in relation to the subject matter will be directly affected. Commercial, financial, or reputational interests in the outcome will only be sufficient in exceptional circumstances.
(b)If the intending intervener’s presence before the Court will not improve the quality of information before the Court, that will count heavily against its addition to the proceedings.
(c)A relevant consideration is the extent to which the proposed intervener can rely on one of the parties to protect its rights and obligations.
(d)If either party would be prejudiced by the intervention, or if the intervention would create an impression of partiality, the application will not be granted.
(e)In cases where development of the law is likely, the application is more likely to be granted if the proposed intervener has special expertise to assist the Court on wider public policy issues.
27 Capital and Merchant Finance Ltd (in rec and in liq) v Perpetual Trust Ltd [2014] NZHC 3205, [2015] NZAR 228; Wilson v Attorney-General (No 2) [2010] NZAR 509 (HC) at [20]; Alpha Dairy NZ Ltd v Auckland Council [2019] NZHC 2263.
28 Capital and Merchant Finance Ltd (in rec and in liq) v Perpetual Trust Ltd [2014] NZHC 3205, [2015] NZAR 228 at [41].
(f)The underlying issue is whether it would be unjust to adjudicate on the matter in dispute without the intervener being heard. Several of the factors mentioned above tie into this issue.
(g)Where intervention is justified, the degree of participation granted to the intervener should be the minimum necessary to protect the intervener’s interests.
[28] However, Thomas J prefaced that summary with the qualification (to point (a) above) that in exceptional circumstances a person can be added as an interested party even though they do not have legal rights and liabilities that would be directly affected.29 In Taylor v Key (No 1) the Full Court of the High Court said that the jurisdiction to add interested parties may be exercised where the Court is satisfied the intervention is likely to improve the quality of the information before the Court. The Court added that intervention had been allowed where the party seeking to intervene has an “interest” in the outcome of the case.30
Submissions
[29] Ms Crawshaw QC, for the applicants, accepted Ms Joseph and Mr Lister did not have any legal rights or liabilities that would be directly affected by the outcome of the appeals. She submitted that was not fatal to the application, relying on Thomas J’s judgment in Capital and Merchant. She said Ms Joseph and Mr Lister had a material interest in the outcome of the appeals. Ms Crawshaw said that interest arose because it would be difficult for Ms Joseph and Mr Lister to enforce any orders they obtained in their Family Court proceeding, and thereby rebuild their relationship with John, except through Mr Roberts having contact with John. They therefore had an interest in the Family Court’s orders being upheld.
[30] Ms Crawshaw submitted Ms Joseph and Mr Lister would be able to provide the Court with a perspective that was different from those of the parties. One of the issues on the appeals would be whether the Judge placed undue weight on the
29 Capital and Merchant Finance Ltd (in rec and in liq) v Perpetual Trust Ltd [2014] NZHC 3205, [2015] NZAR 228 at [40].
30 Taylor v Key (No 1) [2014] NZHC 3306, [2015] NZAR 730 at [9].
importance of John’s relationship with wider family members, including his grandparents, in determining his best interests and welfare. The applicants’ participation on the appeal would be limited to assisting the Court in respect of that issue.
[31] Ms Crawshaw said that although Ms Joseph and Mr Lister have an interest in the appeals being dismissed, the purpose of their intervention would not be to bolster Mr Roberts’ case. Rather, it would be to assist the Court in its consideration of John’s welfare and best interests. There would be no prejudice to the appellants from the grandparents’ intervention. This was because the Judge’s decision addressed the same concerns which are addressed in the extant proceedings in the Family Court between the grandparents and Ms Lister.
[32] Ms Lister submitted I should decline leave to intervene. She said limited evidence from Ms Joseph was put before Judge Fleming. By contrast, the applicants had put before this Court (in their affidavit in support) evidence from their separate Family Court proceeding. Ms Lister submitted that any intervention would require fresh evidence to be led on the appeals. In addition, she submitted the proposed intervention would not add anything useful to assist the Court.
[33] Ms Abdale, for John, submitted that to allow Ms Joseph and Mr Lister to intervene when their Family Court proceeding had yet to be determined would be an abuse of process. She said if the grandparents obtained orders in that proceeding, they would be able to enforce them directly. Enforcement would not depend on the current orders in favour of Mr Roberts being upheld on the appeals.
[34] Mr Carter, who has been appointed counsel to assist the Court on the appeals, made brief oral submissions. He submitted that in the absence of any determination of the applicants’ Family Court proceedings it was premature to allow intervention in these appeals.
Decision
[35] I accept that Ms Joseph and Mr Lister have an interest in the outcome of the appeals. However, that interest is less significant than Ms Crawshaw submitted. Their
interest arises because they are currently estranged from Ms Lister but not from Mr Roberts. The more contact Mr Roberts has with John, the greater the opportunity for Mr Roberts to facilitate the rebuilding of John’s relationship with his grandparents. But if Ms Joseph and Mr Lister obtain orders in their Family Court proceeding, they will be able to enforce those orders in the ordinary way. Enforcement will not be dependent on Mr Roberts’ current orders being upheld in these appeals.
[36] I do not believe the intervention of Ms Joseph and Mr Lister would materially improve the quality of information before the Court. That is no reflection on them or on Ms Crawshaw. It merely reflects that the need to rebuild John’s relationship with his grandparents was a subsidiary reason for the Judge’s orders. The Judge’s reasons were primarily directed at the need to build the relationship between Mr Roberts and his son.
[37] I accept that John’s relationship with his grandparents, and the weight to be given to that relationship in determining John’s welfare and best interests, are likely to be issues (albeit subsidiary issues) on the appeals. But Mr Roberts is well able to make submissions on those issues (particularly given his legal background). Mr Carter is also likely to do so. It is difficult to see how submissions on behalf of Ms Joseph and Mr Lister would materially improve the information that the Court will be given.
[38] For similar reasons, Ms Joseph and Mr Lister can rely on Mr Roberts to protect their position. This counts against leave to intervene.
[39] It is highly relevant that Ms Joseph and Mr Lister have a proceeding on foot in the Family Court seeking orders for contact with John. Given that proceeding, and the other factors I have addressed above, I do not see how it could be unjust to determine the appeals without Ms Joseph and Mr Lister being heard.
[40] For these reasons, and notwithstanding that Ms Joseph and Mr Lister proposed only a limited role in the appeals, I decline their application to intervene.
Result
[41]The application to intervene is declined.
[42] Ms Abdale sought costs on the application. I agree costs should follow the event in the usual way. I allow costs for a notice of opposition, written submissions and appearance at the hearing. Ms Abdale’s written submissions were very brief (as she relied in large part on Ms Lister’s written submissions) and the hearing time was less than an hour. In those circumstances I regard the appropriate costs award to be for 0.6 days at category 2, plus any filing fee for the notice of opposition.
Campbell J
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