NM v AG

[2012] NZHC 1493

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 HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2012-404-842 [2012] NZHC 1493

BETWEEN  NM Plaintiff

ANDAG Defendant

Hearing:         14 June 2012

Appearances: Appellant in person

D A D Holbrook for Respondent
C E Elliott for Child

Judgment:      28 June 2012

JUDGMENT OF KEANE J

This judgment was delivered by  on  28 June 2012 at 3.30pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Date:

Solicitors:

Webster Holbrook, Takapuna, Auckland for Respondent

Claudia Elliott Law, Auckland for Child

NM V AG HC AK CIV 2012-404-842 [28 June 2012]

[1]      On 19 January 2012 in the Family Court, Auckland, Judge de Jong made a final parenting order allowing NM supervised access to his son A, now aged five and a half, at Barnardos every second Sunday for two and a half hours or as otherwise agreed or ordered.

[2]      The Judge made it a condition of this order that if NM did not exercise access for three months, access was only to occur after four weeks' notice and on terms agreed to by AG, A's mother, in whose day to day care he is under an earlier final parenting order.

[3]      NM appeals that decision on three bases: (i) the Judge wrongly attributed to him the failure of the prior interim contact regime - that he had not, as envisaged, had contact with A or undergone therapy was not his fault; (ii) the Judge predetermined his decision under appeal in his November 2011 minute setting down the January 2012 hearing; (iii) the order the Judge then made, and now under appeal, did not then and does not now safeguard or promote A's welfare and best interests.

[4]      NM does not accept that he should be subject to supervised contact in any form. A, he contends, should be in his unsupervised weekend care as and when he elects, and, ultimately, in his equal care.

Context

[5]      A was born after NM and AG ceased their brief relationship. They were then completely estranged and have remained so. While each accepts that A is entitled to the care of each, they have never been able to agree as to how they are to share his care.

[6]      Since his birth A has been in AG's primary, indeed exclusive, care. NM has had contact with A only as agreed or as determined by the Family Court. On 3 March

2009 a final parenting order was made by consent confiding to AG A's day to day care until he was 16. An interim parenting order was then also made by consent, allowing NM unsupervised contact with A on Tuesday afternoons and Wednesday mornings.

[7]      That interim contact order was on closely defined terms and subject to two evocative conditions. NM was not to contact AG's family, friends, work colleagues, staff, neighbours or acquaintances. He was not to make any unsubstantiated complaints about AG to CYFS or other agencies. The order was to be kept under review and, eventually, what final order was to be made became the subject of a five day hearing, first on 9 - 11 November 2010, then on 22 - 23 February 2011.

[8]      After the first three days of hearing in late 2011, Judge de Jong made an interim contact order allowing NM unsupervised weekly contact between 2pm Tuesday - 12 - 12.30pm Wednesday; and, if NM took A to the town where he lived, he was permitted to return M two hours later still. The Judge also allowed NM unsupervised contact from 10.30am, Christmas Day, until 2pm, Boxing Day.

[9]      This interim order was  subject to six  conditions, one  of which was that compliance had to be strict; and, after the final two days of the hearing in early 2012, the Judge concluded that NM had not complied with two of the conditions imposed. More fundamentally, he concluded that A had regressed and he attributed that to A's contact with NM. He held that if unsupervised contact were to continue, A would be at high emotional risk.

[10]     In the further interim order the Judge then made he reduced NM's contact with A to supervised access every second weekend at a centre to which NM agreed, Care for Kids. But he envisaged that NM might well qualify once again for unsupervised access if supervised access worked successfully and if NM continued the counselling he had just then commenced with a psychologist of his own choice.

[11]     The Judge authorised the release to the father's psychologist of a copy of his two decisions concerning the father's contact and the notes of evidence of the Court- appointed psychologist. And he directed that the order was to be reviewed no later than 31 March 2012 on the basis of a psychologist's report updated in late 2011 assessing then (i) A's views and his relationship and attachment toward NM; (ii) NM's parenting skills, insights and ability to meet A's psychological and emotional needs; and (iii) the likely psychological implications if A were to have unsupervised contact with NM.

[12]     NM did not, after that decision, have contact with A at the nominated day centre.  He  contends  that  the  day  centre  was  highly  uncooperative.  Nor  did  he continue with  psychological  counselling.  He  contends  that  his  psychologist  was never given the Court's appointed psychologist's report or the other materials the Judge had authorised. Yet, he contends, the Judge has since held him entirely accountable.

[13]     On 11 July 2011, there was a judicial conference, which NM attended and to which counsel were linked by telephone. It was convened, the Judge said, because NM had sought joint counselling with AG. In a letter to the case officer, the Judge noted, NM had revealed that he had elected not to exercise contact. The Judge was also concerned that NM was not receiving psychological counselling. He set the case down for review in a Registrar's list and suspended the direction that there be an updated psychologist's report.

[14]     On 14 November 2011, still assuming that NM had declined to exercise contact or take meaningful steps to conclude matters, and to bring the case to an end, the Judge issued a minute directing that there be a one hour hearing on submissions only. In that minute, NM contends, the Judge predetermined the outcome.

[15]     On 19 January 2012, at the one hour hearing set down, the Judge heard submissions from NM and for AG, and from counsel for A. He found those from A's counsel, he said, relevant, comprehensive and compelling. He concluded that it was in A's best interests that there be finality. He made the final parenting order that NM now appeals.

[16]     NM, the Judge noted, had not seen A since the hearing in February 2011. He had been allowed ample opportunity to undertake therapy. The Judge hoped  that he would resume therapy and see A at Barnardos. If NM elected not to do so, the Judge said, he had real concerns about A's wellbeing. The Judge again ordered the release of the papers called for to NM's chosen psychologist.

[17]     Since then NM has had contact with A at Barnardos in terms of the order but he seeks on this appeal to have it set aside on the three bases I have outlined.

[18]     The contact order now under appeal is a final parenting order,1 that NM may appeal to this Court as of right.2  (By contrast the preceding interim contact orders could only have been appealed with this Court's leave.3) In either event this Court has its usual powers on a civil appeal.4  The appeal is by way of rehearing.5  This Court on appeal may make any decision it thinks should have been made.6

[19]     In D v S,7  the Court of Appeal held that this Court can on appeal, and sometimes should, reach its own conclusions and decide what was called for without remitting the case back. The Court’s task on appeal, Blanchard J said this:

An appeal to the High Court from the Family Court is an appeal by way of re-hearing. 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 interest 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.

[20]     In  Austin,  Nichols  &  Co  Inc  v  Stichting  Lodestar8   the  Supreme  Court confirmed that on a general appeal by way of rehearing ‘the appeal court has the responsibility of arriving at its own assessment of the merits of the case’.9  But the appeal court may only substitute its own decision if the appellant is first able to show that the decision at first instance is wrong.10

[21]     So too 'the extent of the consideration an appeal court exercising a general power of appeal gives to the decision appealed from is a matter for its judgment'.11

But the appeal court must recognise any advantage that the court at first instance did

have, most pertinently, the ability to assess the witnesses.

1      Care of Children Act 2004, s 48.

2      Section 143(2).

3      Section 143(3).

4      Section 143(4), District Courts Act 1947, ss 72 - 78.

5      District Courts Act 1947, s 75.

6      Section 76(1)(a).

7      D v S [2003] NZFLR 81 (CA ) at [86].

8      Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103; [2008] 2 NZLR 141.

9 At [5].

10 At [4].

11 At [5].

[22]     Section 3(1)(a) of the Care of Children Act 2004 states globally the Act's purpose: to ‘promote children’s welfare and best interests, and facilitate their development, by helping to ensure that appropriate arrangements are in place for their guardianship and care’.

[23]     Section  4  makes  the  welfare  and  best  interests  of  a  child  ‘the  first  and paramount consideration’.12 And not just abstractly. What must be promoted is the welfare and best interests of ‘the particular child in his or her particular circumstances’.13   The  inquiry  as  to  any  parent  or  caregiver  must  be  equally particular. Presumptions arising from gender have no place.14  The inquiry must be focused on the child, and on the parents or caregivers only to the extent that they have qualified or disqualified themselves as caregivers. It must also be real. Parents or care givers are less than perfect. Parenting orders must never be made to punish. They must always serve the child’s welfare and best interests.15 Finally, s 4 emphasises that decisions relating to children must be timely and carry as much finality  as  is  practical:  ‘Decisions  affecting  the  child  should  be  made  and implemented within a timeframe that is appropriate to the child’s sense of time.’16

[24]     Then the s 5 principles relevant to the child's welfare and best interests, foreshadowed in s 4(5)(b), come into play:

(a)      the   child's   parents   and   guardians   should   have   the   primary responsibility, and should be encouraged to agree to their own arrangements, for the child's care, development, and upbringing:

(b)      there should be continuity in arrangements for the child's care, development, and upbringing, and the child's relationships with his or her family, ... should be stable and ongoing (in particular, the child should have continuing relationships with both of his or her parents):

(c)       the child's care, development, and upbringing should be facilitated by ongoing consultation and co-operation among and between the child's parents ...

12     Care of Children Act 2004, s 4(1).

13     Section 4(2).

14     Section 4(4).

15     Section 4(3).

16     Section 4(5)(a).

(d)       relationships between the child and members of his or her family, ... should be preserved and strengthened, and those members should be encouraged to participate in the child's care, development, and upbringing:

(e)       the child's safety must be protected and, in particular, he or she must be protected from all forms of violence ...

(f)       the child's identity (including, without limitation, his or her culture, language, and religious denomination and practice) should be preserved and strengthened.

[25]     These principles, six in number, s 4(5)(b) says, must be taken into account insofar as they are ‘relevant to the welfare and best interests of the particular child in his or her particular circumstances’. All have to be considered. But five are discretionary.  They  represent  what  is  'highly  desirable'.  The  sixth,  the  safety principle, by contrast, is mandatory. The child must be made safe before all else and

that is to be understood in the widest sense.17 The child must be protected from the

risk of psychological as well as physical violence.18

[26]     The principles in ss 4 and 5 are not abstract and they are not to be applied mechanically. They apply only to the extent that they need to or are able to, to serve the Act's purpose - to secure the welfare of the particular child.19  For, as was said

now almost 40 years ago:20

When all the relevant facts, relationships, claims and wishes of parents, risks, choices and other circumstances are taken into account and weighed, the course to be followed will be that which is most in the interests of the child’s welfare... That is the first consideration because it is of first importance and the paramount consideration because it rules upon or determines the course to be followed.

[27]     The Court must also always be alive to the ‘dangerous fallacy’ that:21

... what is claimed to be in the welfare and best interests of the custodial parent necessarily marches with what is in the welfare and best interests of the child … It is not only the Court that is required to place the child’s welfare as the first and paramount consideration.

17     Tanner v Edghill & Marlow (2007) 26 FRNZ 906; [2008] NZFLR 262, at [31]; Brown v Argyle

[2006] 25 FRNZ 383; [2006] NZFLR 705 at [35].

18     Care of Children Amendment Act 2011, in force as from 16 November 2011.

19     Kacem v Bashir [2011] 2 NZLR 1 at [5], [48] - [50].

20     J v C [1970] AC 668 (HL), 711.

21     Gray v McGill (2001) 20 FRNZ 476; [2001] NZFLR 782, at [6].

Grounds of appeal

[28]     NM's first ground of appeal, when he still had counsel, was that the Family Court was accountable for the failure of the interim contact regime set in place in February 2011. The contact centre, he then maintained, was subject to the Court's supervision. At the hearing NM did not go that far. He contended that the Judge wrongly held him accountable for the failure of contact when that was the responsibility of the centre.

[29]     Though NM does not take the point in his first ground of appeal, he contends equally that the Judge was wrong to hold him accountable for the fact that he did not undergo psychological therapy. Here too, he contends, the Court is accountable. The Court, he contends, never sent to his psychologist the Court appointed psychologist's report, or her notes of evidence, or the Judge's November 2010 and February 2011 decisions.

[30]     In his second ground of appeal NM contends that in his minute, dated 14

November 2011, setting down the one day hearing at which the order under appeal was made, the Judge demonstrated that he had already predetermined the outcome. At the final hearing in January 2012 that ensued, NM contends, he ought, as the Rules envisage, to have been able to explain why he had not had contact with A or continued  with  counselling.  He  had  a  right  to  present  evidence  as  well  as submissions. This right was denied him in the November 2011 minute.

[31]     Thirdly, NM contends, in the final parenting order the Judge made allowing him only supervised access to A every second weekend for a brief period, the Judge denied A and himself any semblance of a normal father-son relationship. The Judge, he contends, did so unjustifiably. There was never any issue about A's physical safety.

[32]     The focus of these grounds of appeal in the Judge's ultimate decision in January 2012 have to be set against the context in which that hearing took place. The decision under appeal cannot be divorced from that given in February 2012, that NM

never sought leave to appeal. It is the ultimate expression of that earlier decision and of what happened, or rather did not happen, in between the two decisions.

February 2011 decision

[33]     In his decision, dated 23 February 2011, after the five day hearing, Judge de Jong said that since his birth A had been 'exposed to acrimony, distrust and ongoing Court proceedings'. NM thought that A's life would only improve if their contact increased to week about shared care whereas AG considered that A's situation had deteriorated and contact should return to a supervised basis.

[34]     The  Judge  found  that  NM's  several  concerns  about  AG  as  A's  primary caregiver lacked any basis. AG did not, he held, as NM had belatedly accepted, have any alcohol problem. Nor had her father ever sexually abused A as NM also belated accepted. A might have suffered a head injury at day care but NM's response had been disproportionate. Of greater concern was the four times that NM had taken A to hospital.

[35]     NM did not accept, the Judge said, that he needed any professional help but did say that if the Court held that he did, he would accept that to be so. The Judge added, 'Since November he has in fact seen a psychologist of his choice in Tauranga, twice in February for two hours on each occasion. The father says he has already gained some benefits and insights from this.'

[36]     The Judge found, by contrast, that AG's concerns about NM had substance: that NM had persistently contacted her friends and complained to agencies about her (some of her friends had issued trespass notices); that NM had taken A to hospital four times; that NM had manipulated A and attempted to turn him against her. And AG's concerns, the Judge found, coincided with the assessment of the psychologist appointed by the Court:

Unfortunately the father is unable to see things from A’s perspective, only his own.  He has a tendency to blame everyone else for what happens around him.  The court-appointed psychologist is able to put it better than this Court can:

[The  father’s]  opinion  is  his  belief.    His  concerns  are  very genuine to him.   Regardless of the way any inquiries are conducted, unless such inquiries prove his concerns he is likely to disagree with the outcome. This puts A's emotional welfare at risk.    [The father] has already put A through a medical examination.  Since then, he has made another lot of allegations based on A’s disclosure to him.   This, no doubt, is causing an enormous stress for [the mother].

The opinion of the psychologist is that the father is unlikely to support A’s relationship with the mother.   His negative perception of the mother is entrenched.  She is concerned about his objectivity and the lengths he will go to make or prove his point.

In the view of the court-appointed psychologist the father has a difficult personality - 'His personality characteristics are such that if nobody understands him then he is not going to be slightly receptive to understand their point of view, because from his – from where he is standing he is right and he has done everything to prove himself right.'

The psychologist says the father needs help to develop insight into A’s age- appropriate behaviour and being open to other people’s points of view.  He needs to address the lack of trust he has in the mother’s parenting abilities, how she cares for A and how she is as an individual.   He also needs to address his anxiety and the way he reacts to A’s everyday encounters with other children, and life in general when he is in his mother’s care.

In the psychologist’s opinion the father requires weekly and ongoing counselling with a trained clinical psychologist for an extended period.  She agreed, with the proposition put to her by lawyer for child, that may be for a period of 12 to 24 months.

This Court’s overall concern is that the father will continue to undermine the mother and her role as A’s primary parent.   There is much evidence to support that.  The effect on A is clear for both parents and this Court to see. This Court agrees with the submissions of counsel for the mother that there is an obligation in terms of s 5(e) to ensure this stops.

[37]     The psychologist's assessment, the Judge said, and the evidence generally, gave him  'grave concerns ... for A's future emotional well being'. And he assessed NM finally in this way:

He  presents  to  this  Court  as  fixated.    He  really  struggles  seeing  and accepting a different point of view.   His default position is to reject the position, or view, of another if it differs from his.  There are many examples of this.

This Court has no doubt whatsoever that the father loves A and A loves his father.   It  is not about that.   It  is  about A’s  emotional  wellbeing being compromised in a way that is completely unacceptable. As I indicated at the outset of this decision, A has been suffering a long time. So have his parents. But it must end.  Unless it does, A will develop all sorts of problems in his

future life that will be solely due to what has been happening in this stage of his life.

[38]     In the supervised contact order that he then made at Care for Kids, a venue more acceptable to NM than Barnardos, which would have allowed less contact, the Judge envisaged that NM's relationship with A might evolve without psychological harm to A, as long as NM also underwent psychological therapy.

Intervening period

[39]     In the interim order the Judge made he assumed that NM would initiate contact  with Care  for  Kids,  just  as AG then  did. Also  that  NM  would  resume psychological counselling and that is why he authorised the release to NM's chosen psychologist of the papers necessary.

[40]     NM contends that he did make early contact with Care for Kids but was frustrated by the negativity of a supervisor to whom he spoke. This, however, at least on the face of the Court's record, did not become fully apparent to the Judge until the January 2012 hearing itself.

[41]     In  her  report,  dated  19  May  2011, A's  counsel  did  not  mention  it.  She reported, rather, that NM's psychologist had told her that NM was still deciding whether to undertake therapy. He wished to decide first whether to commission instead a critique of the Court-appointed psychologist's report.

[42]     On 22 - 24 June NM certainly made contact with two Court officers and complained that he had not had contact with A since the order was made for reasons beyond his control and that A's counsel knew about this. He was not then more particular.  Instead he asked the officers to arrange SKYPE counselling  between himself and AG.

[43]     It was for that last reason that on 29 June 2011 the Judge issued a minute stating that he intended to convene a judicial conference to consider whether a direction to counselling was appropriate or necessary. And added, 'On the face of matters it appears NM unilaterally stopped exercising contact'.

[44]     On 7 July A's counsel reported that she was aware that NM had made contact with Care for Kids soon after the interim order was made but that he had not set in place the arrangement the order envisaged. She had heard from the centre in the week before, she said, that NM had just recently made a further approach (AG's counsel's memorandum is consistent). She said that NM, to her knowledge, had not confirmed to the Court that he was undergoing therapy.

[45]     In his 11 July 2011 minute the Judge said that the 'reality of the situation' was that NM had not undergone counselling and had not resumed contact. As to the former, he contrasted what the father said against the psychologist's own account that NM had elected not to proceed with counselling. As to why contact had not begun, he said this:

The father informs the Court that contact broke down about five months ago as a result of what a supervised contact supervisor is alleged to have said to him. I ... tried to find out from the father how he proposes matters be dealt with today but had difficulty understanding clearly what his plans are. What is evident is that he has elected not to have contact.

[46]     The  Judge  adjourned  the  case  to  a  Registrar's  List  two  months  later,  to monitor NM's progress. On 16 July 2011 the Registrar allocated a 17 October 2011 hearing and asked for submissions.

[47]     In his memorandum, dated 17 October, NM contended that the proceedings had been extant since 2006, and that the Court had not deployed the Relationship Services resources that might have made a 'huge difference'. To the contrary, he said:

...  major  factors that  have  disadvantaged A's  life to  date  have  been the corruption of the proceedings in the Family Court, this includes the actions of the Court appointed lawyer, several Judges, Court staff, Court appointed psychologist, several social workers and CYF management. All these people have an equal share of burdening guilt for their part in these crimes against A.

[48]     A still suffered, NM alleged, physical and psychological abuse at the hands of AG and her family. He asked for a new lawyer for the child, a new psychologist, a fresh psychological report, and a short cause hearing within 10 days at which he would seek '50/50 shared care'. Otherwise, he said, he would apply to this Court.

[49]     On 14 November 2011 the Judge issued this minute:

1.In spite of this Court's decision dated 23 February 2011 and minute dated 11 July 2011, it would appear that the father has declined to exercise contact or take meaningful steps to conclude matters.

2.Instead the father seems to have focussed his attention on minute detail instead of the bigger picture.

3.What I propose to do is arrange a short hearing with a view to bringing the proceedings to an end. For that reason, a one hour hearing will be arranged on a submissions only basis.

The Judge directed that submissions be filed three working days before the hearing.

Decision under appeal

[50]     In his 19 January 2012 decision the Judge held that the 11 July 2011 judicial conference had occurred because NM had elected not to have supervised contact or to attend counselling and it was difficult to know at that time what his future plans were.

[51]     At that instant hearing, the Judge said, NM, who had not had contact with A for in excess of a year, nevertheless wanted there to be supervised access for perhaps four months,  and  an  updated psychological  report. AG,  by contrast,  wanted the proceedings at an end. She consented to supervised contact at Barnardos but saw no point in counselling or a report.

[52]     A's counsel promoted continuing contact between A and NM but submitted that, if NM was unwilling to undergo therapy, A's welfare and best interests called for contact to be supervised until A was at an age and stage of development where he could make his own decisions. She anticipated that this would be when he reached adolescence.

[53]     In assessing A's welfare and best interests, as he then set out to do under s 5, the Judge found that there was no prospect that NM and AG could work together as parents and that NM had elected not merely to hold back from contact with A, but had not undergone therapy. As to the latter, he said this:

As I have indicated, the father needs to do intensive counselling work which he tells me today, by implication, that he will not. In that regard, he says a counsellor  he  saw  on  four  occasions  did  not  receive  the  information  I directed back in February 2011 and was not able to take matters any further. He tells me that he had two sessions with the registered psychologist in Tauranga before the February meeting and two sessions after. Inquiries by lawyer for A resulted in an email being produced to Court today. The effect of that email is that the registered psychologist says he is not working with the father and had understood the father was going to work with someone in Hamilton. He does not know whether the father has pursued that. There is no reference to any outstanding information or any other matters that might inhibit him being able to carry out the therapeutic counselling or psychotherapy that had been envisaged by the Court.

[54]     In making the final contact order now under appeal, the Judge was fearful that NM might not go to Barnardos or would not persist. That, he said, would have a tragic effect on A. It was for that reason that he imposed the condition that if contact did not happen then AG should be entitled to consider on what terms it should resume.

Conclusions

[55]     NM's fundamental complaint on this appeal - that he has been frustrated in his effort to forge a full natural relationship with A by AG, by A's counsel and by the Court - lacks any basis.

[56]     In his November 2010 interim decision, after three days of hearing, the Judge allowed NM unsupervised access on a trial basis but subject to conditions, to two of which NM did not adhere. In his February 2011 decision, after two more days of hearing, the Judge had cause to be concerned as well about the effect that unsupervised contact was having on A's psychological wellbeing. The psychologist's report and evidence were especially telling.

[57]     After the interim order took effect, the record on its face is consistent with only one conclusion and that is that NM, himself, elected not to pursue counselling or the supervised contact allowed.

[58]     NM's chosen psychologist told A's counsel, soon after the interim order was made, that NM had still to elect whether to undergo therapy. Counsel made clear to

him that he could have the papers the Judge authorised immediately when NM decided to undergo therapy. Therapy never began with that psychologist or, as it seems, another in Hamilton to whom NM went later. The release of the papers was never an impediment.

[59]     Even assuming that NM did experience difficulty with Care for Kids when he first approached them soon after the interim order was made, he never asked A's counsel to assist, or the Court for that matter. Certainly, so far as the Judge was concerned in his minutes in the second half of 2011, NM himself had elected not to have supervised contact. Therein lay the problem.

[60]     As the Judge by then appreciated, the interim order, made after five days of hearing, had failed completely and he was obliged to revisit it. He could not leave it to stand. And when he did revisit it, he had to make A's welfare and best interests even more completely his priority. There had to be finality.

[61]     In the brief hearing that he set down for January 2012, that is precisely what the Judge set out to do. NM, AG, and A's counsel, were then, of course, entitled to be heard and the Judge heard them. He did not have to enter into an extensive evidential inquiry as to why the interim order had failed. NM had been allowed the opportunity since at least June 2011 to explain why and on the face of the record he clearly had not done so.

[62]     The order that the Judge made does, I consider, intelligibly safeguard and promote A's welfare and best interests as they presently are and his decision involves no error of principle or discretion. To the contrary, I am satisfied, the Judge had no other choice. I confirm the order and dismiss NM's appeal.

[63]     I can only express the hope now, as the Judge did more than once, that NM will comply with the order in A's interests, and resume psychological counselling. Unless, as the Judge always envisaged, NM does both, satisfactorily and for a very appreciable period, the Family Court will lack any proper objective basis ever to

revisit the finality of the order. The initiative lies completely in NM's hands.

P.J. Keane J