M v N
[2016] NZHC 1524
•6 July 2016
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
THE-FAMILY-COURT/LEGISLATION/RESTRICTION-ON-PUBLISHING- JUDGMENTS.
IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY
CIV-2015-483-000034 [2016] NZHC 1524
IN THE MATTER of an appeal under the Care of Children
Act 2004
BETWEEN
M Appellant
AND
N Respondent
Hearing: 29 June 2016 Counsel:
B J Pearce for Appellant
A R H Laurenson for Respondent
D N Rimmer for ChildrenJudgment:
6 July 2016
JUDGMENT OF COLLINS J
Introduction
[1] In this judgment I explain why I am dismissing most of the grounds of appeal advanced by Mr M in relation to a judgment issued by Judge Matheson in the Family Court at Whanganui on 31 August 2015.1
[2] I am, however, varying aspects of the orders made by Judge Matheson
concerning Mr M’s contact with two of his sons, J and P.
1 CMN v CDM [2015] NZFC 7379.
M v N [2016] NZHC 1524 [6 July 2016]
[3] I also suggest that Mr M applies in 12 months’ time under s 47 of the Domestic Violence Act 1995 to discharge the protection order to allow for the Family Court to review the protection order.
Background
[4] Regrettably, like so many Family Court disputes the present appeal has been the subject of years of bitter disagreement between the parties. The issues raised by this appeal are complex and require finely balanced judgement.
[5] Mr M and Ms N lived together between January 2002 and April 2010, although there was time between those dates when they separated. Three children were born during the period of the parties’ relationship: M, who was born on 8
January 2003 and is aged 13 years; J, who was born on 2 August 2004 and is aged 11 years; and P, who was born on 16 March 2009 and is aged seven years.
[6] Ms N obtained an interim protection order against Mr M in December 2005. That order was made final on 7 March 2006.
[7] In May 2012, Ms N became concerned Mr M might have been sexually abusing the children. There were a number of reasons underpinning Ms N’s concerns. These reasons included comments made by P, the fact Mr M acknowledged he had in the past engaged in inappropriate sexual activities and had sexual addiction issues, Mr M’s sexual abuse towards Ms N and his violence towards M.
[8] After P complained to Ms N that Mr M was touching him in a sexual way, Ms N immediately stopped the boys having contact with their father and informed Child, Youth and Family Services (CYFS) and the police of her concerns. For present purposes it is sufficient to note that CYFS and the police were unable to verify P’s allegations.
[9] In 2012, Ms N commenced proceedings in the Family Court in Whanganui. Those proceedings led to two substantive judgments, one from Judge Whitehead and the other from Judge Matheson. This appeal is concerned with three aspects of the
judgment of Judge Matheson. It is important however to first explain the key
features of Judge Whitehead’s judgment.
[10] The proceeding before Judge Whitehead was adjourned to enable the Court to obtain a report from Mr Fairley, a clinical psychologist. That report identified that in the past Mr M had misinterpreted his children’s behaviour and that Mr M confused the boundaries between an adult and a child. Mr Fairley recommended the Court adopt a cautious approach in relation to any unsupervised contact between Mr M and his children.
[11] Judge Whitehead concluded there was no evidence to establish on the balance of probabilities that Mr M had sexually abused his children.2
[12] On 10 May 2013, Judge Whitehead made the following orders:3
(1)A parenting order in favour of Ms N providing her with the day-to- day care of M, J and P. This order was made by consent.
(2)An order authorising Mr M to have supervised contact with the boys at least on two occasions per week for up to three hours at a time. The venue was to be at the Barnados premises in Whanganui or at some other approved venue.
(3)An order that Mr Fairley’s report was to be released to WellStop or any other psychologist to assist Mr M’s ongoing treatment and therapy for his sexual addiction.
(4)An order granting leave to Mr M to apply for unsupervised contact after he had successfully completed a sexual addiction treatment programme.
(5)An order that if Mr M could not meet the costs of supervised contact then he could apply to the Family Court for further orders.
[13] Ms N continued to care for the children and to cater for their educational needs through home schooling. Only J and P have had regular supervised contact with Mr M. M has elected not to have contact with his father and Mr M has reluctantly accepted M’s decision.
[14] Mr M attended a sexual addiction therapy programme over an 18 month period. When that programme concluded, Mr M applied to have unsupervised contact with J and P. Ms N opposed that application. The proceeding was heard by Judge Matheson over five days in June and July 2015. Judge Matheson’s reserved judgment was delivered on 31 August 2015.4
[15] Judge Matheson explained in his decision there were four broad issues he needed to resolve, namely:5
(1)What contact there should be between Mr M and the boys and whether it should move from supervised to unsupervised contact.
(2) Whether the boys should be engaged in counselling.
(3) Whether the boys should continue to be home schooled.
(4)Whether the protection order made against Mr M should be discharged.
[16] Judge Matheson had the benefit of extensive evidence from Mr Fairley and Mr Watson, who is also an experienced psychologist and who had put together the 18 month treatment programme for Mr M, involving 29 sessions. The psychologists concluded Mr M posed little risk of sexually abusing the boys if he were to have unsupervised contact. Judge Matheson accepted the psychologists’ evidence on this issue.
[17] Judge Matheson was, however, concerned about the broader context in which
the allegations of sexual abuse had occurred and Ms N’s conviction that Mr M had
sexually abused their children. Ultimately Judge Matheson concluded that it would be safe for Mr M to have unsupervised contact with P and J but that the children’s emotional stability would be put at risk if Ms N continued to oppose unsupervised contact.
[18] Judge Matheson accepted the parties had earlier agreed to home schooling and that Ms N was doing a satisfactory job in home schooling the boys. Judge Matheson accepted however Mr M had not been kept appraised of the boys’ educational progress and that his exclusion from their education made it even more difficult for him to be engaged in the boys’ lives.
[19] Judge Matheson made the following orders:
(1)Mr M was to be allowed unsupervised contact with J and P. That contact was to occur twice a week for a period of two hours and was to occur in either the public library, the museum or any other public place the parties could agree upon. Mr M was not go to into any bathroom or toilet with the boys.
(2)Mr M was to be able to have supervised contact at his home for up to two hours every two months. That contact was to be supervised by either a professional agency or some other person approved by the parties. The cost of supervising this contact was to be shared by the parties.
(3) Mr M was to be able to attend every second soccer match played by J
and P, provided M was not also playing in the same team.
(4)The children were to continue to receive counselling and therapy. Mr Fairly would engage with Child Health and Adolescent Mental Health Services (CAMHS) and Mr Rimmer, counsel for the children, would engage with Strengthening Families on this basis.
(5)The children would continue to have home schooling but Mr M was to be involved in their tuition during his contact time at the library on two occasions per week and was to receive a report on the boys’ progress every three months from Ms N.
(6) The parties were to receive counselling to assist with making the
Court’s orders work.
(7) The protection order was to remain in place.
Appeal
[20] Mr M has appealed three aspects of Judge Matheson’s decision, namely:
(1) The decision that the boys continue to receive home schooling. (2)
The decision relating to the extent and nature of Mr M’s contact with
J and P. In particular, Mr M appeals the decision restricting the
amount of unsupervised contact he has with J and P. Mr M contends
all his contact with the boys should be unsupervised. (3)
The decision to keep the protection order in place.
[21]
Ms
N initially filed a cross-appeal. However, through her counsel,
Mr Laurenson, Ms N advised that she no longer wished to pursue her cross-appeal.
Children’s education
[22] The decision by Judge Matheson that the boys should continue to be educated by Ms N in their home was made under the Guardianship Act 1968 (the Guardianship Act) and that as such, the High Court’s leave is required under s 44 of the Guardianship Act to appeal that aspect of Judge Matheson’s decision.
[23] Issues as fundamental as how a child is to be educated are obviously
extremely significant in the lives of the parties’ children. For this reason, I propose
to grant the application for leave to appeal Judge Matheson’s decision in which he
directed that the children continue to be home schooled by Ms N.6
[24] Ms Pearce, counsel for Mr M, accepted that the decision by Judge Matheson for Ms N to continue to home school the boys involved Judge Matheson exercising his judicial discretion. Ms Pearce therefore accepted that the threshold for allowing this aspect of Mr M’s appeal is that set out in May v May.7 For this reason, Ms Pearce framed the issues relating to this aspect of the appeal in the following way:
(1) Judge Matheson gave insufficient weight to:
(i) the lack of information as to the children’s level of educational
achievement; and
(j) Mr M being able to engage with the children while home schooled.
(2) Judge Matheson gave undue weight to:
(i) the earlier decision of the parties concerning home schooling;
(ii) Mr M being able to engage with the children’s home schooling
during contact time;
(iii) Ms N’s ability to meaningfully engage with Mr M on
educational issues;
(iv) the children’s views; and
(v) “untested evidence” that supported home schooling.
6 See W v R [Guardianshp] [2006] NZFLR 946 (HC).
7 An appellant must show that the Judge acted on a wrong principle; or that he failed to take into account some relevant matter or that he took account of some irrelevant matter or that he was plainly wrong: May v May (1982) 1 NZFLR 165 (CA).
[25] Mr M accepts that the decision to home school M was a considered judgement reached by both Mr M and Ms N. At the time Mr M clearly had sufficient confidence in Ms N’s abilities to undertake this very important task. Mr M maintains however that the decision to home school J and P effectively occurred by default and that he did not necessarily agree with that outcome.
[26] It is correct that there is a paucity of independent evidence that enables an objective assessment to be made about how well J and P are progressing academically. On the other hand, Judge Matheson, after considering all relevant evidence concluded that there was no evidence to suggest the boys were not receiving a proper education from home schooling.
[27] In reviewing the evidence I have weighed each of the relevant factors in ss 5 and 6 of the Care of Children Act 2004 (the Care of Children Act) and then assessed whether or not Judge Matheson erred in any of the ways submitted on behalf of Mr M by Ms Pearce.
Section 5(a) – Safety
[28] Mr M is concerned that the boys’ emotional safety may be compromised through not having the opportunity to interact and socialise with other children of similar ages.
[29] Mr Fairley’s evidence was that J and P had the opportunity to socialise with children of similar ages through a support group and through their sporting interests.
[30] On reviewing the evidence I do not see any sound basis upon which it could be contended that J and P’s safety is compromised through them receiving home schooling.
Section 5(b) – Parental responsibility for a child’s care
[31] The decision to home school J and P may have followed naturally from the parties’ decision to home school M. This was a carefully considered decision and reflected the parents’ determination to do their best for their children.
[32] I can see no basis for concern that the principles in s 5(b) of the Care of
Children Act are undermined by the current home schooling arrangements.
Section 5(c) – Consultation and co-operation
[33] Mr M feels disconnected and isolated from the education of J and P and that
Ms N has failed to consult and co-operate over this issue.
[34] It is easy to understand Mr M’s concerns. Judge Matheson clearly did and recorded that Mr M needs to be involved in the boys’ education through participation in their tuition at the public library each week. He also required Ms N prepare a report every three months explaining the boys’ academic progress and that this report be made available to Mr M.
[35] In my assessment, the approach taken by Judge Matheson complied as best as possible with the principles in s 5(c) of the Care of Children Act.
Section 5(d) – Continuity
[36] One of the factors which weighs heavily against this aspect of Mr M’s appeal is that the boys have always been home schooled. The principle of continuity in s 5(d) of the Care of Children Act is best honoured by the boys continuing to receive home schooling.
Section 5(e) – Preserving and strengthening of relationships with parents
[37] Judge Matheson recognised the importance of both parents being involved in the ongoing education of their children. The orders he made were designed to give effect to this objective and were consistent with the principles in s 5(e) of the Care of Children Act.
Section 5(f) – The child’s identity should be preserved and strengthened
[38] The evidence presented to Judge Matheson supports the view that J and P identify with their home education. In this respect, Judge Matheson recognised and endorsed the principles in s 5(f) of the Care of Children Act.
Section 6 - children’s views
[39] In the present case both children have said they are content with their home schooling arrangement. Mr Rimmer, counsel for the children, confirmed in the hearing before me that all three boys support their current education arrangement. While J and P have yet to reach the age where their views on such important matters are decisive, their wishes do weigh against this aspect of Mr M’s appeal.
Analysis
[40] Having reached my own conclusion that the principles in ss 5 and 6 of the Care of Children Act are satisfied by J and P being educated at home by their mother, I have then assessed whether or not Judge Matheson erred in any of the ways contended on behalf of Mr M.
[41] I accept there is some evidence surrounding educational achievement that suggests there have been times when there were difficulties with J and P completing their term’s work in a timely manner. Ms N explained this in her affidavit of 24
March 2014.8 However, those issues were not significant and related to a short
period of time in the final term of 2013. When assessed in the context of all the evidence presented in the Family Court, I do not think Judge Matheson failed to have regard to information that might have given rise to concern about the boys’ level of educational achievement.
[42] Nor do I believe Judge Matheson erred in any of the ways suggested by Ms Pearce. On the contrary, when I weigh the evidence that was presented to Judge Matheson I am drawn to the conclusion that he assessed all relevant evidence appropriately and reached a conclusion that was clearly available to him in the circumstances of this case.
Contact between Mr M, J and P
[43] Section 143(2) of the Care of Children Act provides for a general right of
appeal from this aspect of Judge Matheson’s decision.
8 Affidavit of CMN, 24 March 2014 at [39]-[40].
[44] Ms Pearce submitted on behalf of Mr M that Judge Matheson erred when making the contact orders by failing to give sufficient weight to:
(1) the need to extend contact between Mr M, J and P;
(2) the finding that Mr M has not sexually abused his children; and
(3)the fact that Mr M had unsupervised contact from 2010 to 2012 before the allegations of sexual abuse were made.
[45] Ms Pearce also submitted Judge Matheson gave undue weight to:
(1) M’s views about his father and Ms N’s views on this matter;
(2)Ms N’s inability to cope with Mr M having increased contact with the boys; and
(3) the parties’ ability to undergo communication counselling.
[46] Ms Pearce also expressed concern that Judge Matheson had failed to provide a more comprehensive path forward to enable Mr M to have increased contact with J and P. Ms Pearce submitted that it is only by the boys engaging in unsupervised and expanding contact with Mr M that a counter-balance to the sexual abuse narrative will be achieved and the relationship normalised.
[47] I have approached this aspect of the appeal by weighing the principles in ss 5 and 6 of the Care of Children Act against the evidence. I have then assessed whether or not Judge Matheson erred in any of the ways contended by Ms Pearce.
Section 5(a) – Safety
[48] Ms Pearce relies upon the expert evidence of the psychologists, who agreed there was a low risk of Mr M sexually abusing J and P if he were to have unsupervised contact with them. Ms Pearce respectfully and rhetorically asks, that if
the risk of Mr M sexually abusing his sons is low, why can it be thought the safety of
J and P is at risk if Mr M has greater unsupervised contact with his sons?
[49] There is force in this submission. However, Judge Matheson based his decision on his concern for the emotional safety of J and P. He believed he needed to take a cautious approach to allowing Mr M having further unsupervised contact with his sons because the boys’ emotional wellbeing may be compromised if Ms N continued to ardently oppose Mr M having any further unsupervised contact with J and P.
[50] In my assessment, while a cautious approach is required, it is also important to ensure that Mr M is not penalised because Ms N is unable to accept the evidence that there is a low risk of Mr M sexually abusing J and P.
Section 5(b) – Parental responsibility for a child’s care
[51] Judge Matheson recognised the need for both Mr M and Ms N to have responsibility for the care, development and upbringing of J and P. Ms Pearce submits this principle is achieved through Mr M having further unsupervised contact with J and P at his home.
[52] Mr Laurenson stressed on behalf of Ms N, that Judge Matheson took a cautious approach to there being unsupervised contact between Mr M, J and P because of his concerns about the emotional wellbeing of the boys and that in the circumstances of this case, caution is required.
[53] In my assessment, the principles outlined in s 5(b) of the Care of Children Act can be achieved by a more structured formula for regulating the amount of unsupervised contact Mr M has with J and P.
Section 5(c) – Consultation and co-operation
[54] Ms Pearce submits that the Court needs to take a more hands-on approach to achieve greater unsupervised contact between Mr M, J and P. Ms Pearce says this is
required because Mr M and Ms N are unable to reach agreement between themselves about the care, development and upbringing of J and P.
[55] On the other hand, Mr Laurenson submits Judge Matheson carefully considered the principles in s 5(c) of the Care of Children Act when he put in place a finely calibrated plan to allow Mr M to have some contact with J and P.
[56] In my assessment, the difficulties between the parties’ ability to co-operate need to be addressed through practical and specific directions.
Section 5(d) – Continuity
[57] Mr M currently has a degree of supervised and unsupervised contact with J and P. He also had unsupervised contact from 2010 to 2012. Mr Laurenson submits Judge Matheson was rightly concerned that any process to strengthen or increase the boys’ relationship with their father not impact on their emotional safety and security they obtain from their mother’s care.
[58] The objectives of ensuring continuity in the care, development and upbringing of J and P is, in my assessment, unlikely to be compromised by Mr M having a greater degree of unsupervised contact with his sons over time.
Section 5(e) – Preserving and strengthening of relationships with parents
[59] The principle that J and P should continue to have a relationship with both parents will not be compromised if Mr M has more unsupervised contact with J and P over time.
Section 5(f) – The child’s identity should be preserved and strengthened
[60] Ms Pearce submits that the wishes and influences of M effectively led the Judge not to pay sufficient regard to the principles in s 5(f) of the Care of Children Act when considering Mr M’s contact with J and P.
[61] Having carefully weighed the evidence, I do not think Judge Matheson allowed the views of M to unduly influence his decision concerning contact between
Mr M, J and P. Undoubtedly, M holds strong views about Mr M and does not want to have contact with him. Mr M has accepted that at this stage he can play little role in M’s life. Judge Matheson recognised that M’s views about Mr M were a complicating factor, but, save in respect of the issue about what soccer games Mr M could watch, the views of M do not appear to have influenced Judge Matheson’s decision.
Section 6 - children’s views
[62] Mr Rimmer advised that while he understood and respected the cautious approach taken by Judge Matheson, J and P have made it clear to Mr Rimmer that the boys enjoy their contact time with their father.
Analysis
[63] I accept Judge Matheson was required to reach a finely balanced decision and that caution was required when deciding the degree to which Mr M could have unsupervised contact with J and P.
[64] I have had the advantage of hearing this case almost a year after Judge Matheson. During that intervening period J and P have matured and are happy to have further contact with their father. Mr M has also had the benefit of extensive treatment and counselling and there has been an ongoing opportunity to assess how Mr M, J and P have managed the contact they have had over the past year. A further advantage I have concerns the fact that Ms N has now had a further 12 months to adjust to the likelihood of Mr M playing a greater role in the lives of J and P.
[65] After carefully weighing the evidence and the principles in ss 5 and 6 of the Care of Children Act, I have decided to alter the contact orders made by Judge Matheson.
[66] The new orders are:
(1)The currently unsupervised contact will take place twice a week for two hours on Tuesday and Fridays from 3.00 pm to 5.00 pm at the Public Library, Queen’s Park, Whanganui.9
(2)From September 2016, J and P may have unsupervised contact at Mr M’s home for up to two hours every two months during daylight hours.
(3)The arrangements concerning Mr M attending soccer games are amended to enable Mr M to attend every second soccer game played by J and P even though M may be playing at the same time.
(4) The children are to continue with their counselling and therapy.
(5)The unsupervised contact arrangements are to be reviewed by the Family Court in Whanganui during the first three months of 2017. It may be necessary for a further report to be obtained from Mr Fairley or other specialist to assist in the Family Court reviewing the progress of Mr M’s unsupervised contact with J and P.
[67] These orders are not to be construed as limiting in any way the Family Court’s ability to make whatever orders it thinks appropriate after conducting the review in the first three months of 2017.
[68] Mr Rimmer’s appointment as counsel for the children is renewed. Mr Rimmer may also wish to report to the Family Court about the progress of the unsupervised contact when this case is reviewed during the first three months of
2017.
9 After the hearing the parties advised me in writing that they consented to this term. I believe the
parties’ agreement is appropriate and in the best interests of J and P.
Protection order
[69] Mr M also appeals Judge Matheson’s decision declining to discharge the protection order made in favour of Ms N and the three boys. Ms Pearce accepted this aspect of Judge Matheson involved him exercising his judicial discretion and the threshold for allowing this aspect of Mr M’s appeal is that set out in May v May.10
[70] The jurisdiction to discharge a protection order is set out in s 47 of the Domestic Violence Act 1995. There is no statutory criteria governing a decision to discharge a protection order.11 In undertaking this exercise, it is necessary to consider the test of necessity for a protection order which was explained by the Court of Appeal in Surrey v Surrey.12 Therefore, courts have tended to approach applications to discharge a protection order by asking if the protection order is still necessary to protect the person or persons who are the beneficiary or beneficiaries of the order.
[71] Judge Matheson kept the protection order in place because although he was satisfied Mr M was unlikely to be violent towards Ms N and the boys, the protection order was still necessary to ensure there was a clear line of demarcation that regulated the relationship between Mr M and Ms N.
[72] Judge Matheson was very mindful of the law governing the application to discharge the protection order. Judge Matheson’s judgment displays a meticulous analysis of all relevant issues. In particular, he noted that although almost 10 years have passed since the initial order was made:
(a) the nature of the personalities involved means there is a potential for
Mr M to over-engage with Ms N;
(b)the relationship has a dysfunctional dynamic where power and control issues were rampant; and
10 An appellant must show that the Judge acted on a wrong principle; or that he failed to take into account some relevant matter or that he took account of some irrelevant matter or that he was plainly wrong: Surrey v Surrey (2009) 27 FRNZ 968; [2010] NZFLR 1 (CA) at [69] and May v May (1982) 1 NZFLR 165 (CA).
11 SPRS v PLS [2012] NZFC 6555 at [32]-[34].
12 Surrey v Surrey, above n 10.
(c) Ms N and M remain anxious.
[73] I agree with the conclusion reached that it is not appropriate to discharge the protection order at this stage.
[74] Notwithstanding my agreement with the decision that the protection order should remain in place, it is important to recognise that the protection order need not necessarily remain in place indefinitely. It may be possible for the protection order to be discharged by the Family Court after the Family Court has reviewed the progress of the unsupervised contact, which I have set out in this judgment. For this reason, I invite Mr M to apply under s 47 of the Domestic Violence Act 1995 to have the protection order discharged and suggest that application be brought after 1 July
2017.
[75] Again, I emphasise that this suggestion is not a direction to the Family Court. Nor is this suggestion an indication that the protection order must be discharged if it is reviewed after 1 July 2017.
Conclusion
[76] The appeal against Judge Matheson’s decision in which he ordered that M, J
and P continue to be home schooled is dismissed.
[77] The appeal concerning the decision of Judge Matheson governing the contact between Mr M, J and P is varied in the way I have explained in paragraph [66] of this judgment.
[78] The appeal from Judge Matheson’s decision declining to discharge the protection order is dismissed. I have, however, provided suggestions for how the Family Court may wish to reassess the appropriateness of the protection order in the future.
[79] This is a case in which the honours have been equally shared. I make no order as to costs.
D B Collins J
Solicitors:
Armstrong Barton, Whanganui for Appellant
Govett Quilliam, New Plymouth for Respondent