M v A

[2013] NZHC 831

NOTE:  PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO

11D OF THE FAMILY COURTS ACT 1980.  FOR FURTHER INFORMATION PLEASE SEE LEGISLATION/RESTRICTIONS.

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV-2013-470-000228 [2013] NZHC 831

UNDER  the Care of Children Act 2004

IN THE MATTER OF     an appeal against a decision of the Family

Court at Tauranga

BETWEEN  M Appellant

ANDA Respondent

Hearing:         18 April 2013 (at Rotorua)

Counsel:         A H Brown and P I J Eagle for Appellant

F H Thompson for Respondent
L C Jack - Counsel for Child

Judgment:      19 April 2013

In accordance with r 11.5 I direct the Registrar to endorse this judgment with the delivery time of 3.30pm on the 19th day of April 2013.

RESERVED JUDGMENT OF COLLINS J

M V A HC TAU CIV-2013-470-000228 [19 April 2013]

Introduction

[1]      The issues I am required to resolve are:

(1)Should the Family Court in Tauranga have ordered that Mr A have contact with C, the 12 year old daughter of Ms M and Mr A (contact order)?

(2)If a contact order was appropriate, should the contact order made by the Family Court be varied?

(3)What other orders should be made to advance the welfare and best interests of C?

[2]      These issues arise in the context of an appeal by Ms M from a decision of Judge Geoghegan, delivered on 7 February 2013 in the Tauranga Family Court.  In his decision Judge Geoghegan made interim orders pursuant to s 48 of the Care of Children Act 2004 (the Act).  The interim orders were that Mr A was to have contact with C:

(1)for four visits each alternate Sunday from 10.15 am to 11.45 am, commencing on Sunday 17 February 2013;

(2)each  alternate Sunday from and including Sunday 14 April 2013, from 10.15 am to 1.45 pm;

(3)       on each Sunday from and including 9 June 2013, from 10.15 am to

7.00 pm;

(4)       such other contact as agreed.

[3]      Ms M advances three grounds of appeal, namely that Judge Geoghegan:

(1)       failed to give appropriate weight to C’s views as required by s 6(2)(b)

of the Act;

(2)incorrectly applied principle 5(b) of the Act by failing to consider the effect of the contact order upon the continuity of C’s care arrangements;

(3)failed to give sufficient weight to principle 5(e) of the Act by not properly considering the psychological impact upon C of the contact order.

[4]      As will become apparent I have determined this appeal on the first ground advanced by Ms M.   It has not been necessary for me to consider the second and third grounds of appeal.

Background

[5]      Ms M and Mr A have a very fraught relationship that has been marked by protracted litigation.   I will not attempt to analyse the reasons for their disputes. Suffice for present purposes to observe that they appear to disagree on most issues concerning C.

[6]      C lives in the day to day care of Ms M in Tauranga.  Mr A has not had as much contact with C as he would have liked.  I need not explore the reasons for this. Ms M maintains Mr A abandoned C.  Mr A argues that Ms M made it too difficult for him to have the contact with C that he would have liked to have had.

[7]      In his decision Judge Geoghegan explains some of the history of the litigation between Ms M and Mr A in the following way:1

Mr [A’s] contact with [C] continued to be troubled and in 2007 he applied to be appointed as an additional guardian of [C].  At a hearing before Judge Neal in September 2007 a new parenting order was made providing that Mr [A] was to have face-to-face contact with [C] each alternate Saturday from

10.00am to 3.00pm and that no conditions were to attach to the order.  Judge Neal also made an order appointing Mr [A] as an additional guardian of [C]. In his judgment Judge Neal referred to the fact that Ms [M’s] stance in the proceedings were that Mr [A] had not taken up his responsibilities as far as [C] was concerned, that she had regarded her relationship with Mr [A] as a mistake and that she felt ashamed and embarrassed by it and also by [C]

1      A v M [2013] NZFC 697 at [5].

having to acknowledge Mr [A] as her father particularly to the outside world. She had referred to Mr [A] as untrustworthy and as having denigrated her in her role as [C’s] mother.  Judge Neal also referred to a psychological report which had referred to Ms [M’s] negative attitude towards Mr [A] and to the report writer’s opinion that if Ms [M’s] conduct continued [C] was in danger of being alienated from her father.

[8]      In May 2012 Mr A applied to vary the orders made by Judge Neal.  Mr A said that his contact with C had generally gone well up until April 2010 but that contact ceased in April 2010 when Ms M had allegedly refused to allow C to have contact with Mr A during the 2010 winter months.   As a result, Mr A did not have any contact  with  C  until  soon  after  Judge  Geoghegan  delivered  his  decision  on

7 February 2013.

[9]      As will be explained later in this judgment, the brief contact that Mr A has had with C following Judge Geoghegan’s decision had been traumatic for C and extremely stressful for Mr A and Ms M.

Judge Geoghegan’s decision

[10]     Judge Geoghegan was in no doubt that Ms M had considerable difficulty in hiding her bitterness towards Mr A.   Judge Geoghegan thought Ms M was either “completely blind  to  her  negative  conduct”  or  she  was  “totally  disingenuous”.2

Judge Geoghegan was concerned that Ms M could say nothing positive about Mr A and that her attitude to Mr A constituted “psychological abusive conduct” towards C.3     Judge Geoghegan thought that Ms M’s “hostility towards Mr [A], her undermining of his relationship with [C] and ... her complete inability to hide her feelings ... from [C] present[ed] an ongoing psychological risk to C”.4

[11]     Judge Geoghegan concluded that Mr A had not assisted matters by failing to take steps to have contact with C until she was two years old and in not pursuing the issue  of  contact  until  well  after  contact  had  ceased  in April  2010.    However, Judge Geoghegan  was  clearly  sympathetic  to  Mr  A’s  circumstances  when  he recognised  that  “there  are  limits  to  the  ability  of  any  individual  to  overcome

behaviour and conduct which is calculated to be obstructive and undermining”.5

Judge Geoghegan proceeded to say:6

While Mr [A] struck [him] as being genuine in his remorse for not being more active, particularly after April 2010, [he considered] that Ms [M] [had] not been responsible or constructive in her approach to the situation and [had] placed her needs above the needs of her daughter.

[12]     In  reaching  his  decision  Judge  Geoghegan  was  assisted  by reports  from Ms Lightfoot, a clinical psychologist, who had prepared reports in 2006, 2007 and October 2012.  Ms Lightfoot was clearly concerned about Ms M’s influence over C and that Ms M’s attitudes towards Mr A having contact with C had an adverse influence on C’s attitude to contact with her father.

[13]     Ms Lightfoot made a number of recommendations:

(1)      That  a  number  of  psychological  intervention  methods  be  used  to

address C’s attitude to contact with her father;

(2)That Ms M and Mr A receive therapeutic assistance to address their attitudes to each other;

(3)      That C receive counselling from a Court appointed psychologist;

(4)       That contact between Mr A and C be resumed on a graduated basis. [14]      In reaching his decision Judge Geoghegan was mindful of C’s wishes which

he described as being “clear”.7   He noted C did not wish to have anything to do with her father and that she confirmed these views to Judge Geoghegan prior to the hearing on 15 November 2012.  Judge Geoghegan said:8

While [C’s] views were expressed with clarity and force [he] had very significant concerns about the reasonableness of those views for the very same reasons expressed by Ms Lightfoot.  In short [C’s] views struck [him] as resembling a facade on a movie set.   While at first sight the facade appears impressive and weighty, simply taking a  step behind the facade

5 At [30].

reveals that there is nothing there.   I do not for a moment doubt [C’s]

genuineness but the source of her views is troubling indeed.

Events after Judge Geoghegan’s decision

[15]     Both Ms M and Mr A applied to present further evidence about events that have occurred since Judge Geoghegan delivered his decision on 7 February 2013.  I granted leave to both parties to adduce their additional evidence pursuant to r 20.16 of the High Court Rules because of the special circumstances of this case.  Those special circumstances concern the impact of events after Judge Geoghegan’s decision on C’s welfare and interests.   I considered the new evidence was very relevant to determining the appeal.

[16]     Ms M and Mr A both presented affidavits on their understanding of events that  occurred  since  Judge  Geoghegan  gave  his  decision.    Both  also  gave  oral evidence before me and were cross-examined.

[17]     The new evidence can be explained under the following headings: (1)           Relocation of C to Gisborne;

(2)       Court orders concerning the return of C to Tauranga; (3)        What happened when contact was attempted?

(4)       Mr A’s application for protection orders; (5)    The impact of contact upon C.

Relocation of C to Gisborne

[18]     The  day  after  Judge  Geoghegan  delivered  his  judgment,  Ms  M  and  C relocated to Gisborne where C was enrolled in a local school.  Ms M and C stayed in Gisborne with Ms M’s sister and her husband. They had separate bedrooms and took their possessions to Gisborne, including C’s four cats.   Ms M said the move to

Gisborne had been planned for some time.  Mr A seriously doubts that is true and believes  Ms  M  simply  moved  C  to  Gisborne  to  frustrate  giving  effect  to Judge Geoghegan’s orders.

Court orders concerning the return of C to Tauranga

[19]     When Mr A learnt Ms M and C had suddenly moved to Gisborne he applied ex parte under s 44 of the Act for orders requiring C to live in Tauranga until further order  of  the  Court.    Orders  to  that  effect  were  made  by Judge  Geoghegan  on

18 February 2013.  As I will explain later, that order has not been appealed and the substantive hearing concerning the relocation orders is unlikely to be heard until July at the very earliest, unless steps are taken to address the effects of the ex parte order.

[20]     As a result of the ex parte order Ms M and C returned to live in Tauranga. They had in any event already travelled from Gisborne to Tauranga for the first contact arrangement, which took place on 17 February 2013.

What happened when contact was attempted?

[21]     The  first  contact  occurred  as  arranged  outside  the  Papamoa  Library  on Sunday 17 February 2013.   The contact did not go well.   Ms M drove C to the contact point.  However, instead of getting out of the car and meeting Mr A in the Papamoa Library, C refused to get out of the car.  Mr A came out of the library and tried to engage with C.   C refused to engage with Mr A and simply ignored him. Within a few minutes Mr A gave up.

[22]     The next three contacts occurred on 27 February 2013, 2 March 2013 and

5 March 2013 in the presence of Ms Dunne, a clinical psychologist.  Ms Dunne has spent a number of hours with C and Mr A in an attempt to assist them with contact arrangements.  Ms Dunne’s efforts have not succeeded.  C has continued her resolute opposition to having anything to do with Mr A.

[23]     The final two contacts occurred on 31 March 2013 and 14 April 2013 at the

Papamoa Library.   On both occasions the period of contact was just a matter of

minutes.  On both occasions C fled Mr A in a distressed state.  On both occasions she ran to Ms M’s car and expressed her firm views to her mother that she did not want to see Mr A.  Mr A confirmed in evidence that C had left the contact venue on both occasions in an agitated state and that he also was very distressed and upset by the “hopelessness” of the situation he found himself in.

Application for protection orders

[24]     Mr A believed that Ms M was influencing C’s behaviour and that she was interfering in his contact with C.   Mr A therefore decided to apply for protection orders  to  prevent  Ms  M  interfering  with  contact  between  Mr A and  C.    The application for protection orders has still to be heard.

[25]   Ms Jack, counsel appointed to represent C explained that one of the consequences of the application for protection orders is that:

(1)       it has reinforced to C that Mr A is “bad” and “powerful”;

(2)       it has further aligned C with Ms M;

(3)       it has intensified C’s views that she wishes to have no contact with

Mr A.

Effect of attempts at contact upon C

[26]     Ms Jack has very helpfully explained the adverse impacts of the attempts at contact upon C.  Last year C was described as being a bright and cheerful young girl.

[27]     Since returning to Tauranga as a result of the relocation orders, C and her mother have been sharing a mattress in a house owned by Ms M’s mother.  They are living in what is described as cramped and difficult conditions.  To date, C has not resumed school.  However, I was informed from the bar that this week agreement was reached that C would resume schooling at a local Tauranga school.

[28]     More significantly, C’s health and wellbeing appears to have deteriorated.

Ms Jack explains:

(1)       C is having nightmares about Mr A; (2)          C is now pale;

(3)       C’s hair is greasy;

(4)       C reports loss of enjoyment in pastimes such as reading; (5)   C is teary and “flat” in her demeanour;

(6)       C presents as suffering from anxiety issues; (7)          C’s appetite has weakened;

(8)       C is suffering from broken sleep.

[29]     The magnitude of C’s hostility to Mr A and her determination that there should be no contact between Mr A and herself, is evident from a letter C wrote after her return to Tauranga.  In that letter C says, amongst other things:

(1)       that Mr A has “ruined” her life;

(2)       that  Mr A has  “taken”  her  from  the  school  which  she  loved  in

Gisborne;

(3)that if Mr A really did love her he would stop “this stupid idiotic behaviour” and “start turning on his ears”;

(4)       that she does not want to see Mr A;

(5)that  Mr  A  did  not  think  about  how  she  would  feel  about  his application for protection orders;

(6)that the home in Gisborne was a perfect property and an “awesome place for a child to grow up in”;

(7)       that her cats are still in Gisborne and that leaving them in Gisborne

makes her “depressed”;

(8)       that she is “tired of this” and wants it “to end”;  and

(9)       that she “wants people to listen to [her] opinion and see what [she]

has to say”.

Summary of new evidence

[30]     The new evidence, adduced by both parties plainly demonstrates that the contact  orders made by Judge Geoghegan  are  not  working,  notwithstanding the professional efforts made by Ms Dunne to try to give effect to the Family Court’s orders.

[31]     Mr A honestly and frankly acknowledged the hopelessness of the existing contact arrangements.   Although he recognised the futility of trying to force C to have  contact  with  him  in  the  way  that  Judge  Geoghegan  has  ordered,  he  was reluctant to abandon his efforts to have contact with C.  He was, however, willing to consider the merits of C and Ms M returning to Gisborne.

[32]     I can readily understand Mr A’s dilemma.  He is now in his early 60s and he suffers poor health.   C is his only child and he wishes to participate in her life. Sadly, it is very clear that C does not wish to reciprocate.

Leave to appeal out of time

[33]     Ms M’s application for leave to appeal was filed five days out of time. Unsurprisingly, Mr A opposed leave being granted for the appeal to be heard.  I ruled on the day of the hearing that leave to appeal out of time was granted.  My reasons were doing so were:

(1)The primary reason for the delay in filing the notice of appeal was that the parties were attempting to negotiate a resolution.   The negotiations were facilitated by counsel for the child.  Ms M and her lawyers did not think that filing a notice of appeal would assist the parties’ attempts to negotiate a settlement so they therefore delayed filing the notice of appeal.

(2)However, Mr A’s counsel and counsel for the child were placed on notice on 7 March 2013 that an appeal would be filed if no settlement was achieved.  No objection was taken to that course of action at the time.

(3)      It is in C’s best interests that Ms M’s appeal be heard and promptly

determined by the High Court.

Principles governing an appeal

[34]     An appeal of this nature is conducted as a rehearing pursuant to s 143(4) of the Act, and s 75 of the District Courts Act 1947.   I am not bound to accept the Family Court’s findings of fact and I am entitled to exercise any power or discretion available to the Family Court at first instance.  I must exercise my own judgement but,  where  appropriate,  I  may  give  weight  to  the  assessments  made  by  the Family Court.

[35]     In Austin, Nichols & Co Inc v Stichting Lodestar the Supreme Court said that when considering an appeal by way of rehearing from a decision of an Assistant Trade Marks Commissioner, the High Court is required to:9

... come to its own view on the merits.  The weight it gives to the decision of the Commissioner is a matter of judgment [sic].  If the High Court is of a different view from the Commissioner and is, therefore, of opinion that the Commissioner’s decision is wrong, it must act on its own view.

9      Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [3].

[36]     The Supreme Court went on to say:10

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 [sic].  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.

In the present appeal there was no basis for caution in differing from the assessment of the tribunal appealed from.  The case entailed no question of credibility.  It turned on a judgment [sic] of fact and degree, not the exercise of discretion entrusted to the tribunal.  We are of the view that the Court of Appeal was not correct to suggest that, because the decision turned on a value judgment [sic] apparently open to the Assistant Commissioner, “the High Court Judge ought not to have embarked on a reconsideration of the issue  without  considering,  and  giving  weight  to,  the Assistant Commissioner’s conclusion”.   The High Court Judge was obliged to reconsider the issue.   He was entitled to use the reasons of the Assistant Commissioner to assist him in reaching his own conclusion, but the weight he placed on them was a matter for him.

[37]     A similar approach should be taken by the High Court when conducting an appeal from the Family Court by way of rehearing.   This was confirmed by the Supreme Court in Kacem v Bashir when the Supreme Court said:11

... the important point arising from Austin, Nichols is that those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion involves an assessment of fact and degree and entails a value judgment [sic].

Application of s 6(2)(b of the Act

[38]     Judge Geoghegan was acutely aware that s 6(2) of the Act required:

(1)      That C be given a reasonable opportunity to express her views on

Mr A’s application.

(2)      That any view she expressed be taken into account.

10     At [16]-[17].

11     Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [32].

[39]     Section  6(2)  of the Act  gives  effect  to  article  12  of the  United  Nations Convention on the Rights of the Child.  The legislature’s use of the word “views” in s 6(2)(b) of the Act can be compared to the transitive verb “wishes” used in s 23(2) of the Guardianship Act 1968.  As noted by Randerson J in C v S “views” is a wider term than “wishes”:12

A “wish” may be considered to be an expression of a child’s preferences (for example, to be in the day-to-day care of one parent rather than another). Whereas “views” may cover a wider range of matters, such as assessment of the  advantages  and  disadvantages  of  being  in  the  care  of  one  party  or another;     what  the  child  enjoys  or  does  not  enjoy  about  his  or  her relationship with the adults in question;  and what matters are important to the child and what are not.

[40]     Giving effect to s 6(2)(b) of the Act involves a three-step process of: (1)           ascertaining the child’s views;

(2)      taking account of the child’s views;  and

(3)      determining what weight should be placed on the child’s views.13

Ascertaining C’s views

[41]     In the present case C’s views were obtained through a number of reasonable opportunities that were provided.   Her views were conveyed to Judge Geoghegan directly, and through her counsel and through Ms Lightfoot.   C consistently said “with  clarity  and  force”14   that  she  did  not  want  contact  with  Mr  A.    Judge Geoghegan recorded in this judgment that:15

... [C’s] wishes are clear.  She does not wish to have anything to do with her father.   She confirmed those views in her meeting with me prior to this hearing.   She told me that she could not recall the last time she had seen Mr A and asked me directly not to make her see him.  She stated that she had not had any good times with Mr A and that if she had to have contact with him she would simply not go.  In discussing why she felt this way she stated that she just did not like him.  She referred to “bad vibes” and the fact that he made her “feel uncomfortable”.

12     C v S [2006] 3 NZLR 420 (HC) at [31](e).

13     Blair v Blair [2012] NZHC 2957 at [44].

14     A v M [2013] NZFC 697 at [23].

[42]     Since Judge Geoghegan delivered his decision C’s views about not wanting to have contact with Mr A have become even more entrenched.   C is now openly hostile  towards  Mr A.    More  disturbingly,  she  is  now  suffering  physically  and emotionally because of the stress she is under from being required to have contact with Mr A.

Taking account of C’s views

[43]     Judge Geoghegan took into account C’s views.  He concluded that C’s views were not based on any substantive reasoning.   Judge Geoghegan was clearly concerned that C’s views reflected Ms M’s attitudes towards Mr A.  In reaching his decision, Judge Geoghegan acknowledged that his decision was directly opposite C’s expressed views.

Weight placed upon C’s views

[44]     Judge Geoghegan was in no doubt that C’s views were genuine.  He recorded that he did “not for a moment doubt [C’s] genuineness but [that] the source of her views [was] troubling indeed”.16

[45]     Thus, in assessing what weight to place on C’s views Judge Geoghegan discounted  the  genuineness  of  C’s  views  because  of  the  influence  of  Ms  M. Judge Geoghegan said:17

In [C’]s case I do not consider that her wishes have any real reasonable foundation.   I consider those wishes to have been significantly and quite wrongly affected by the conduct of Ms [M].

Did Judge Geoghegan err when weighing C’s views?

[46]     I have concluded Judge Geoghegan did err in two material respects when

weighing C’s views.  His errors can be best explained under the headings of:

(1)      C’s maturity;  and

16 At [23].

(2)       The influence of Ms M.

C’s maturity

[47]     Judge Geoghegan does not appear to have considered C’s maturity.  She is now a 12½ year girl who finds herself embroiled in a bitter adult dispute.  It is not surprising that  the views  she expressed to  Judge  Geoghegan  were clothed with emotion rather than logical analysis.   However, as her views were genuine they should have been afforded more weight than Judge Geoghegan gave them.

[48]     There is some irony in the fact that when C was six years old she wanted to have contact with Mr A.  Her views at that time were taken into account and given some weight.  But now, when C is 12½ years old, her views on the same issue have been completely discounted.

Role of Ms M

[49]     Judge Geoghegan discounted C’s views because of the conduct of Ms M.  His Honour may have been  very justified in  having  the concerns he had  about  the influence of Ms M.   However, the approach he took is difficult to reconcile with s 4(3) of the Act which provides:

A parent’s conduct may be considered only to the extent (if any) that it is relevant to the child’s welfare and best interests.

[50]     In my judgement, the Act would have permitted Judge Geoghegan to have been influenced by Ms M’s conduct when assessing what was in C’s welfare and best interests.  However, he should not have allowed Ms M’s conduct to influence the weight he placed on C’s views.

Impact of new evidence

[51]     I now have the advantage not afforded to Judge Geoghegan of knowing that the contact order he made has not been effective.  Mr A volunteered in evidence that

the situation was “hopeless”.   That was a very fair and accurate appraisal of the circumstances as they have unfolded.

[52]     More significantly, however, it is now clear that forcing C to have face to face contact with Mr A is causing her health and wellbeing to suffer.

What orders should be made

[53]     I am very satisfied that it is not in C’s welfare or best interests for her to be forced into having face to face contact with Mr A. At the same time, I think that it is likely to be in her long-term best interests if Mr A is able to write to her once a month if he wishes to do so.  I cannot compel C to reply.  She will have to decide for herself if she wishes to do so.

[54]     In light of the significant variation that I am making to the orders made by

Judge Geoghegan, the relocation order made by Judge Geoghegan on 11 February

2013 may now be rendered otiose.

[55]     During the course of the hearing I engaged with counsel on whether or not I had any jurisdiction in relation to the relocation order, absent an appeal from that order.  Ms Brown and Ms Eagle, counsel for Ms M endeavoured to devise ways that I might assume jurisdiction, such as by treating the current appeal as also being an application for judicial review.  Upon careful reflection I do not think I can accede to Ms Brown and Ms Eagle’s suggestions.  Instead, I think they should now seek leave to file an appeal out of time from the ex parte order made on 11 February 2013.  If leave is granted then consideration can be given to suspending that order pending any substantive hearing taking place in the Family Court.

Conclusion

[56]     The appeal is allowed.

[57]     The contact order made in the Tauranga Family Court on 7 February 2013 is replaced with an order that any contact between Mr A and C be confined to Mr A’s writing letters to C no more than once a month.

[58]     Leave is granted to the parties to file memoranda on costs or any other related issues within the next ten working days.

D B Collins J

Solicitors:

Families Matter Law Practice, Rotorua for Appellant

Thompson Law, Te Puke for Respondent