R v B
[2016] NZHC 283
•26 February 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 COURT/LEGISLATION/RESTRICTIONS-ON-PUBLICATIONS.
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2015-485-225 [2016] NZHC 283
BETWEEN R
Appellant
AND
B Defendant
Hearing: 5 August 2015 Counsel:
L A Andersen and S G Tarrant for Appellant
W Davis for Respondent
S J Stevenson, Lawyer to AssistJudgment:
26 February 2016
RESERVED JUDGMENT OF ELLIS J
I direct that the delivery time of this judgment is
4 pm on the 26th day of February 2016
R v B [2016] NZHC 283 [26 February 2016]
[1] R and B were formerly in a relationship and have an eight year old child, J. J
lives with B. R has had no contact with his daughter since 19 April 2010.
[2] R has appealed against a decision of the Family Court declining his application under s 48 of the Care of Children Act 2004 (COCA) for contact with J. Judge Walsh determined that it is not presently in J’s best interests to have even supervised contact with him.1 He seeks to have that decision quashed and substituted orders made permitting him professionally supervised, monthly, contact.
[3] In light of s 4(2)(a)(i) of COCA and the regrettable delay in issuing this judgment I record at the outset that I was advised that J has no knowledge of R’s appeal.2
Statutory matrix
[4] Before turning to address the merits of the appeal it is necessary to set out the key statutory provisions which have a bearing on its outcome.
[5] The purpose of the COCA is twofold: to promote children's welfare and best interests by helping to ensure that appropriate arrangements are in place for their guardianship and care and to recognise certain rights of children.
[6] The Care of Children Amendment Act (No 2) 2013 made changes to a number of provisions applicable in this case. Those amendments came into force on 31 March
2014.
Section 4 - the paramount consideration
[7] Section 4 confirms the longstanding principle that the welfare and best interests of the child are the first and paramount consideration in applications and
proceedings under the Act.
1 R v B [2015] NZFC 1383.
2 Section 4(2)(a)(i) articulates the principle that decisions affecting the child should be made and implemented within a time frame that is appropriate to the child's sense of time.
[8] Section 4 provides that, when considering the welfare and best interests of a child in his or her particular circumstances, a Court:
(a) must take into account the principles of s 5 of the Act: s 4(2)(a)(ii);
(b)may take into account the conduct of the parties to the extent that the conduct is relevant to the child’s welfare and best interests s 4(2)(b);
(c) must not make decisions about day-to-day care based on gender s 4(3); and
(d)may take into account other matters relevant to the child’s welfare and best interests: s 4(4)(b).
Section 5 principles
[9] The s 5 principles (which are inclusive) are that:
(a) a child’s safety must be protected and, in particular she “must be protected from all forms of violence (as defined in section 3(2) to (5) of the Domestic Violence Act 1995) from all persons”;3
(b) a child’s “care, development, and upbringing should be primarily the
responsibility of … her parents and guardians”;
(c) a child’s “care, development, and upbringing should be facilitated by ongoing consultation and co-operation between … her parents, guardians, and any other person having a role in … her care under a parenting or guardianship order”;
(d) a child “should have continuity in … her care, development, and
upbringing”;
3 The definition of violence contained in s 3 of the Domestic Violence Act 1995 includes psychological abuse which, in relation to a child is further defined to mean causing or allowing the child to see or hear the physical, sexual, or psychological abuse of a person with whom the child has a domestic relationship or putting the child, or allowing the child to be put, at real risk of seeing or hearing that abuse occurring.
(e) a child “should continue to have a relationship with both of … her parents, and … [her] relationship with … her family group, whānau, hapū, or iwi should be preserved and strengthened”; and
(f) a child’s “identity (including, without limitation, … her culture, language, and religious denomination and practice) should be preserved and strengthened.”
[10] Ensuring safety is the most important of these principles. As Elias CJ said in
Kacem v Bashir:4
Section 5(e) [now s 5(a)] imposes a check on the general theme contained in s 5 of the value to the child of family contact by insisting (both as a stand- alone value and in relation to family members specifically) that “the child's safety must be protected and, in particular, he or she must be protected from all forms of violence”.
[11] Blanchard, Tipping and McGrath JJ said:5
All the principles, save for (e), [now (a)] are couched in the language of “should”. In principle (e) the word used is “must”. As we have already indicated, principle (e), if relevant, will generally carry decisive weight in the factual assessment. That is probably why this principle is couched in terms of “must” rather than “should”.
[12] As Duffy J noted in Lowe v Way, the 2014 reforms re-ordered the s 5 principles to emphasise this priority; the ‘child safety’ principle was moved from the bottom of the list of principles (s 5(e)) to the top (5(a)).6
Domestic violence
[13] Another of the amendments occasioned by the 2014 reforms was the inclusion of a new s 5A, which applies when (inter alia) an application is made to the court for a parenting order. It provides that it is mandatory to take into account the fact of any protection order that remains in force against any of the parties, the circumstances in which the protection order was made, and the written reasons given
by the Judge who made the protection order.
4 Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [7].
5 At [22].
6 Lowe v Way [2015] NZHC 93 at [9].
Section 6 – Child’s view
[14] The child’s views expressed directly or through a representative must be taken into account in any decision under the Act: s 6(2).
Parenting and contact orders
[15] Orders relating to the provision of day-to-day care for, and contact with, a child are governed in the first instance by s 48 which provides:
48 Parenting orders
(1) On an application made to it for the purpose by an eligible person, the court may make a parenting order determining the time or times when specified persons have the role of providing day-to-day care for, or may have contact with, the child.
(2) A parenting order determining that a person has the role of providing day-to-day care for the child may specify that the person has that role—
(a) at all times or at specified times; and
(b) either alone or jointly with 1 or more other persons.
(3) A parenting order determining that a person may have contact with the child may specify any of the following:
(a) the nature of that contact (for example, whether it is direct (that is, face to face) contact or some form of indirect contact (for example, contact by way of letters, telephone calls, or email)):
(b) the duration and timing of that contact:
(c) any arrangements that are necessary or desirable to facilitate that contact.
(4) A parenting order (whether an interim parenting order or a final parenting order) may be made subject to any terms or conditions the court considers appropriate (for example, a condition requiring a party to enter into a bond).
[16] But s 51(1) provides that if a person has used violence against the child or the day-to-day carer of the child, the Court must consider whether it should impose protective conditions when making a parenting order for contact between the child and the violent parent. When a parent has used violence against another parent, s 51(2) requires the Court to consider whether protective conditions should be
imposed to protect the non-violent parent and/or the child when contact is taking place.
[17] And the possibility of supervised contact orders is addressed in s 59 which provides that the Court may order supervised contact (as defined in s 58) if it:
(a) is making or varying a parenting order determining the time or times when a person may have contact with a child; and
(b) is not satisfied that the child will be safe with that person.7
This case: the factual matrix
[18] R and B were in a relationship between 2006 and 2009. During the relationship there were incidents of violence and on 19 October 2009 Judge Murfitt granted B a final protection order against R.8 Because of the requirements of s 5A it is important to set out his reasoning in some detail. He begins his judgment by recording that:
[1] … The relationship was a turbulent one with swearing and abuse, arguments and friction, conflict and, at times, physical violence marking their relationship. The genesis of these dynamics lies in the backgrounds of each of the parties. Mr R has a long history of convictions for fighting, disorderly behaviour and assaults. A prior relationship ended with a protection order being made to protect his former partner and all her immediate family. By nature, he is a volatile and impulsive man who easily becomes overwhelmed by his own wants and needs, leaving him to ignore the rights of others.
[2] Ms B, too, has had a background which contributed to the poor functioning of this relationship. She has suffered from psychotic episodes as a result of which she is currently still on low dosage Olanzapine, and which has manifested itself in very heightened states of anxiety. Like Mr R, she has in the past used drugs, and in June 2007 was convicted for possession or use of methamphetamine. Curiously enough, she has an expert analysis of her hair follicle which indicates that from January 2007 her system was clear of methamphetamine.
7 The former ss 60 and 61, which provided a framework for making orders for contact (s upervised or otherwise) with a “violent party” or a person with whom the court was not satisfied that the child would be safe, have effectively been replaced by s 5A. Essentially those sections provided that any contact with such a person was required to be supervised except where, after taking into account the matters listed in s 61, the court was satisfied the child would be safe, unsupervised, with him or her.
8 RJB v BNR FC New Plymouth FAM-2009-043-343, 19 October 2009.
[3] The applicant alleges that she has been physically assaulted by Mr R in 2006 when he punched her in the arms and legs while she was driving and later dragged her because he was angry she did not have his keys. She describes his dominating and demanding behaviour during the relationship when she was commonly described in abusive terms including “fucking bitch”, “fucking egg” and “fucking dolphin”, to name a few. She also alleges that on 20 April 2009 she was again assaulted, when the respondent spat at her, grabbed at her ripping her shirt.
[4] It was this allegation which led her to apply on 23 April for a temporary protection order and interim parenting order. Mr R had been charged with assault and wilful damage, the latter referring to him breaking her cellphone. He had pleaded not guilty, and was remanded on bail. Because of the protective bail conditions which then applied, I directed the application for a protection order should proceed on notice, but in order to provide stability for the parties’ child, [J] …, I made an interim parenting order to secure her mother’s role as primary caregiver, and her father’s ongoing contact with the child.
[5] While Mr R was on bail, he generally complied with the conditions preventing him from having contact with the applicant. On 26 August 2009 he was convicted of assault and wilful damage. He does not recall that he was convicted of assault but I am quite satisfied on the evidence that he was. Ms B was present at the hearing. A social worker has obtained details of both parties’ convictions including this assault conviction. Moreover she records in her report that Mr R had told her he received a sentence of
60 hours community work for the assault.
[6] On 17 September the applicant was walking near East End when she says she observed the respondent driving by, and that he called her a “fucking fat arse”. She says she walked along the walkway with her daughter to escape the scene, but that when she reached the playground at East End, the respondent was there. Their daughter saw him, and he called to their daughter. The respondent acknowledges that he saw the applicant while he was driving, and he acknowledges that he coincidentally went to the East End playground, not to see his daughter, but to look at whitebait. That is inherently unlikely. The respondent lives at Opunake. He was well aware that contact arrangements had been crafted with a clear plan of keeping the parents apart because of the conflict between them. He was well aware the application for a protection order was still pending hearing.
[7] Another incident occurred a few days later on 21 September. Contact arrangements negotiated with the help of Ms Manning provided for Mr R’s sister, S D, to act as a transition agent, conveying the child from one parent to the other. She gave evidence, and impressed as a sensible, well motivated, down to earth person, even though she had been subpoenaed to testify against her brother. Arrangements had been made for her to collect the child at Okato. While she and the applicant were enjoying a perfectly amicable conversation, the respondent turned up – well aware that he was contravening the plans which had been agreed for contact, sheltering the child from parental conflict. Immediately a loud abusive exchange developed. He began to demand explanations from the applicant as to why she had walked away from him at the playground and when she gave him a reason, he called her a “fucking egg”. The respondent’s sister was distinctly unimpressed by her brother, and ordered him to go home. While she was
reluctant to criticise her brother too much, she did say that she was angry with him for initiating this confrontation. She also described the applicant’s reaction as “terrified”.
[8] From this scene the applicant drove toward New Plymouth, and to Ms D’s horror, she saw her brother following. She pursued him and tried to stop the applicant to see how she was. However, the applicant was too far ahead for that to work.
…
[10] In his own evidence, the respondent has admitted slapping the applicant and punching the dashboard of the car, spitting at her on 20 April (although he says she had previously punched him), grabbing and breaking her cellphone (although he says it was after she had taken his car keys), and he admits in the distant past he has slashed her car tyres in January 2007 (although he says that was to stop her from accessing drugs).
[19] Judge Murfitt concluded:
[11] These events alone enable the Court to conclude that he has committed acts of domestic violence against the applicant. His explanation, however, I consider seek to excuse and minimise his past behaviour. I am quite sure the applicant herself is not blameless in the conflict which has occurred in this relationship. She, too, had made choices, including drug taking and remaining in the relationship which have contributed to the violent dynamics. However, the respondent demonstrated a pattern of thinking where he excuses and minimises his behaviour. He blames others for “provoking” his behaviour. He is inclined to reshape the truth to suit himself. One example of this was his attempt to reinvent his conviction history. Another was his denial of drug use, when analysis shows he has been a regular user of cannabis. The respondent effectively said he discounted cannabis as a drug at all. He also denied knowing of the temporary protection order, yet in his own affidavit of 6 October, he acknowledges knowing of it.
…
[14] I am quite satisfied that the applicant has proved the respondent has committed acts of domestic violence against her, in particular the punching incident in 2006 and the spitting/grabbing incident on 20 April. His demanding manner and the verbal abuse he routinely used during the relationship is harassment, to the extent it comprises psychological abuse. The respondent acknowledged using rough language, but says it was every day parlance in his social group, and not intended to be abusive. However, the test of what is abusive is found in the effect it has on the victim. In this case, the insults and rude behaviour had a serious effect on the applicant who was particularly vulnerable because of her own fragile psychological and psychiatric health. It led her to be cowed, insecure and fearful. She continues to be very anxious about the respondent’s potential to harm her and abuse her.
[20] As far as J was concerned, the Judge said:
[16] Mr R’s great concern about a protection order is the effect it will have upon his relationship with his daughter. The applicant’s mother does not believe Mr R would ever harm his daughter. Clearly he is passionately attached to her and wants to remain an active person in her life.
[17] Unfortunately the Domestic Violence Act 1995 provides in s 16(1) that where a protection order is made, it applies for the benefit of any child of the applicant’s family. In many cases respondents are inflamed by the thought that they are to be seen as a threat to their child, even when they may be quite prepared to acknowledge the mother of their child needs protection from them. It would be of great benefit if the Court could make a protection order designating whether or not the children should be incorporated as protected persons. In some situations where a protection order is justified, the domestic violence is very contextual and has had no impact upon the relationship between the children and a violent parent. However, the Court is straightjacketed by s 16(1), so that when the grounds for a protection order are established the children will be named as protected persons.9
[18] I make it clear in this case that there is no evidence Mr R presents a direct threat to the safety of his daughter, in the sense that he would do her any physical harm. However, he must learn to appreciate that exposing her to the brutal language he uses against her mother, and threatening to abduct her from her mother is behaviour which does create psychological harm for the child. As Ms Manning raised in her cross-examination, Mr R should wonder how he would react when his daughter begins to use at school the same sort of threatening and abusive language which she hears him use to her own mother. He says that he will have to train her not to use that type of language. In actual fact he is training her right now to use precisely that type of language by setting her a bad example.
[19] It will be necessary for the parenting proceedings to be advanced in a constructive way. Presently Mr R is having contact at Barnardos with his daughter. I make a direction under s 62 Care of Children Act 2004 that the costs of that contact be funded from the consolidated fund.
[21] As the Judge noted R was, at that point, permitted to have supervised contact with J at Barnardos. A belts and braces approach made it a condition of the parenting order permitting him this contact that he comply with the protection order.
[22] But R had only five visits with J before they were stopped. A report from a
Barnardos worker in June 2010 noted that:
(a) R frequently breached the agreement with Barnardos by whispering to
J (the agreement provided that all conversations should be audible);
(b)he behaved in an angry and agitated manner and was hostile and intimidating to staff;
(c) he constantly made derogatory remarks to J about B and questioned J
about what B was doing;
(d)he failed adequately to supervise J’s play with the result that her safety was endangered; and
(e) J was visibly distressed by his behaviour and on one occasion wet
herself and on another asked “When is it time for Daddy to go home”.
[23] B also later deposed to certain specific things that (according to J) R had said to J during these visits, including:
(a) saying that he was going to take J from B and that J would not see B
again;
(b)saying that B was “stink”, that R was going to smash her and break her eyeballs and “you won’t have a mummy but it’s ok because you will have me”;
(c) describing the supervisor as a “nosy parker”; and
(d) telling J to “just walk away from” B.
[24] As a result of the events at Barnardos Judge Murfitt issued a minute dated
26 April 2010 which stated:
There is strong evidence that [R] is breaching the conditions of supervision at Barnardos and is emotionally abusing [J]. The parenting order as to contact is suspended.
[25] Recommendations were made by Barnardos that R complete various parenting courses and attend drug counselling. R has not seen J since that time.
[26] On 17 November 2011 R breached B’s protection order. He was convicted and sentenced to three months imprisonment. There was then a further breach for which he was sentenced to five months imprisonment on 17 January 2012.
[27] There have been no breaches since his release from prison in 2012. However it is not in dispute that two of R’s previous partners have also obtained protection orders against him and that he has a total of nine convictions for breaches of such orders. He has 15 convictions for violent offending.
The application for contact in the Family Court
[28] In addressing R’s application for supervised contact the central issue for the Family Court was whether allowing for supervised contact would risk psychological or physical harm to J.
The s 133 report
[29] The Court received a report under s 133 of COCA from Mr Kevin Garner, a clinical psychologist. He opined that J was unlikely to be at risk of physical harm from R and under cross-examination expressed the view that the risk of R behaving badly during any contact had significantly diminished. That said, Mr Garner had identified a number of questions about R’s psychological state that, in his view, had
yet to be answered, including whether (in Judge Walsh’s words):10
(a) The father had moved on from:
· such psychologically abusive behaviour;
· his relationship with the mother;
· feeling the need to denigrate the mother in [J]’s eyes.
(b) The father accepted his role in [J]’s life was going to be significantly less i.e. had he reached a point of acceptance about his limited role. Mr Garner thought it was possible – “more likely than not” the father accepted that situation.
(c) The father’s sense of injustice and resentment of supervised contact
had gone.
(d) The father could give priority to [J] and not to any other agenda that he might have going on.
[30] Judge Walsh acknowledged, however, that Mr Garner was cautiously in favour of supervised contact being renewed.
J’s views
[31] The Family Court had before it three reports from Counsel for the child, Ms Stevenson. The reports made it clear that J now remembers very little about her father, having last seen him when she was three. The second report recorded that J liked the idea of resuming contact with him although expressed concerns for her own safety, saying (inter alia) that her father should be “chained to a chair” for the duration of any visit. In the third report, however, she is reported as saying she did not want contact at all. She said “I just want to live the same life”. However, Ms Stevenson expressed some reservations about the weight that could safely be accorded to J’s views.
The Judge’s analysis
[32] Judge Walsh noted that pursuant to s 5A of COCA domestic violence must be taken into account when looking at the need to protect a child's safety under s 5(a) and that s 59 of COCA allows the court to make an order for supervised contact where it is not satisfied that the child will be safe with the relevant person.
[33] The Judge considered R’s history of violence and the extent to which he had addressed the underlying problems. He recorded his reservations about R’s own evidence about these matters. In particular, he said:11
1There was no independent expert assessment provided by the father that might have explained the nature and causes of his violence, whether the father had satisfactorily addressed such issues and whether there remained any unresolved ongoing issues of violence. Mr Garner confirmed there was a lack of information as to why the father was so angry and violent; there was nothing in his background to explain it.
2The father claimed he had been violent to the mother because of relationship issues and issues arising relating to mental health of the
11 At [69].
mother. I found that claim lacked substance. As already noted the father has an appalling record of historical violence. That record indicated he had been troubled by violence issues for numerous years even before he met the mother. He advised Mr Garner he had played rugby league so he could assault people; eventually he was banned at the age of 34 years from playing rugby league because of his violent behaviour. When I took those factors into account I was concerned there was “something deep rooted in his violence” which needed careful assessment.
3Three women, including the mother, have obtained protection orders against him. The father has been convicted on 9 occasions for breaching protection orders. It is unclear from his evidence whether he ever completed satisfactorily an approved anger management programme under the Domestic Violence Act. Even if he did complete any programme satisfactorily questions must arise about the effectiveness of the programmes, given his history of convictions for violent offending and breaching protections orders, coupled with his lack of insight into his violent behaviour.
4I am satisfied on the evidence the father was psychologically abusive to [J] when he had supervised contact at Barnardo’s in 2010. That abuse involved him saying inappropriate things to [J] such as “I am coming to get you” and he was going to “smash the mother”. He did not comply with the terms of supervision and was antagonistic to the supervisor. The father continued to deny aspects of his behaviour during that supervised contact; he denied whispering unsettling comments to [J] and claimed the whispering was part of a game. I was not convinced by his explanation.
5When Ms Davis cross examined the father about his behaviour during that period of supervised contact and the background which led to the father having the word “bitches” tattooed on his body I found he was evasive and defensive. I considered he was minimising his actions. Mr Garner felt the father had continued to minimise his actions after 2009 but not to the same extent. He noted the father had never fronted up to the mother and acknowledged his violence to her. He suggested there was still an element of the father retaining a sense of grievance and seeing himself as the victim. The father had not explained his breaches of the protection orders.
6The father acknowledged in the past he had exhibited an unhealthy attitude towards women. He accepted he had used “brutal language” as described by Judge Murfitt. Although he had opposed the protection order in favour of the mother he had not opposed the other protection orders. He now accepted the protection orders in favour of the mother and the other two former partners were justified. To that extent he did demonstrate some insight into his past abusive behaviour and the harmful impact it had on the mother and the two other women.
7When I reviewed the evidence relevant to the father’s insight into his past abusive behaviour I was satisfied he recognised and accepted to some extent his role in such abusive behaviour. I had concerns however, which arose from his dissembling answers in cross
examination. I raised those concerns with him during the hearing. Overall I have reservations about his insight into his violent behaviour coupled with my concerns about the causes of his behaviour and violence. In reaching that view I was mindful of Judge Murfitt’s observations about the mother having a background which contributed to the poor functioning of their relationship. Against that observation I weighed my concerns which stem from the father’s behaviour, which occurred after the parties separated, resulting in the making of the protection order in favour of the mother and the father being subsequently convicted on 7 occasions, involving 3 convictions for breaching the protection order in favour of the mother and 4 convictions relating to violent offending.
[34] The Judge noted B’s submission that supervised contact between J and her father would be likely to cause J physical and psychological harm, and that there was a risk of her being abducted. B had said that R’s behaviour would undermine her parenting, and that the stress that resumed contact would place on her would also destabilise J. She said that J was too young to process and manage her father’s behaviour, and lacked the maturity or resilience to deal with emotionally complex situations.
[35] Judge Walsh did not, however, accept that there was any real, objective, risk of J being abducted or physically abused in a supervised setting. He recorded his satisfaction that R was genuine in his desire to re-establish contact with his daughter and that he was unlikely to repeat the behaviour shown by him during supervised contact in 2010.
[36] The Judge expressly considered the principle in s 5(e) that a child should have a continuing relationship with both parents and noted the risks to J of not having contact with her father, and with his extended whānau. He recognised the importance of their desire to have J as part of the whānau and for her to grow up with awareness of her Maori heritage.
[37] But the Judge also said that, having regard to the Court of Appeal decision of
Surrey v Surrey, B’s subjective views about her own and J’s safety ought to be given weight.12 He said:13
12 Surrey v Surrey [2008] NZCA 565, [2010] 2 NZLR 581.
While the court must adopt an objective assessment of risk factors, care must be taken to ensure the views of a party who has been subjected to violence are carefully weighed especially where it is considered there are reasonable grounds for that party to have fears of further violence.
[38] In the end, Judge Walsh determined that resuming contact with R at this time would create an unacceptable risk of harm to J. His specific conclusions were as follows:14
1.Mr Garner confirmed, since April 2010 the mother had been an excellent parent to [J]; he described [J] as “a really healthy, psychologically happy well developed little girl”. He was so impressed by her positive presentation he did not see the need to make any follow up enquiries with [J]’s school. He found no evidence of the mother alienating her from the father. The pivotal question in this context is whether [J]’s welfare and best interests should be put at risk by attempting to re-introduce the father into her life at this stage having regard to all the other identified risk factors.
2.In the context of this case I consider the well being of the mother is a significant factor in maintaining and enhancing [J]’s welfare and best interests. The mother still remains fearful of the father; she has been affected traumatically by the violence in her relationship with him. Mr Garner highlighted in his report and his oral evidence how the mother could promote contact between [J] and the father but I do not consider she is able psychologically and emotionally to do this at this stage. If the mother was confronted with having to cope with supervised contact I am concerned this would cause her considerable anxiety and stress. Ultimately such a situation could result in undermining her role as [J]’s primary caregiver. As noted Mr Garner confirmed in his evidence if the mother was in a constant state of stress and anxiety this would be harmful to [J].
3.There is still insufficient information before the court about the violent behaviour of the father, the causes of that behaviour and whether the father has satisfactorily addressed those causes. Until this information is available to the court it is unable to fully assess these risk factors. At this stage I consider there are still concerns about the level of the father’s insight into his violent behaviour and his tendency to minimise such behaviour.
4.The father had significant drug issues in the past. Although he maintains he no longer uses illicit drugs there is still uncertainty in my view, as to whether he has fully resolved drug addiction issues and has the capability of sustaining his recovery from addiction issues. In the future the court will be assisted by the father undergoing an independent addiction assessment.
5.There is still uncertainty as to whether resumption of supervised contact would have a harmful psychological effect on [J], having regard to her vulnerability, given her young age and previous
exposure to the violence of the father. I accept ultimately the only way to address that issue is for supervised contact to proceed at a stage when it is considered [J] has the emotional capacity and maturity to cope with resumption of contact.
The evaluation of risk factors is difficult because of the inherent uncertainty in assessing the probability of any particular risk factors. I consider these remaining risk factors would cumulatively pose an unacceptable risk to the welfare and best interests of [J] if I ordered the father was to have supervised contact. Accordingly I have determined it is not in the welfare and best interests of [J] to allow the father to have supervised contact at this time and his application is dismissed.
[39] Judge Walsh also observed that by the time J turns 10 or 11, many of the issues militating against contact could well have resolved.
The appeal
[40] R alleges that Judge Walsh “erred in fact and law” by:
(a) deciding it would not be in J’s welfare and best interests to have
supervised contact with her father at this time; (b) failing properly to apply the s 5 principles;
(c) giving too much weight to the s 5(a) principle and too little weight to the principles set out in s 5(b), (c), (e) and (f);
(d)deciding that R having monthly professionally supervised contact as proposed by Mr Garner would pose an unacceptable risk to J;
(e) holding that the only way to address the uncertainty about the effect of supervised contact on J would be to wait until she had the emotional capacity and maturity to cope;
(f) stating that R had breached the protection order four times when in fact there were only three breaches;
(g)failing to give sufficient weight to the absence of any domestic violence between R and B for almost three years;
(h)treating R’s tattoo of the word “bitches” as evidence of his current attitude towards women;
(i)relying on Surrey when, in this case, there is no issue of the protection order being discharged or of R having any contact with B;
(j)deciding that B was not able psychologically and emotionally to promote contact between J and R (as recommended by Mr Garner); and
(k)finding that monthly supervised contact would cause B such anxiety and stress that it would undermine her role as J’s primary caregiver.
Approach on appeal
[41] An application for a parenting order under s 48 of COCA requires the Court to determine and evaluate facts. The central focus of that exercise is the assessment of where the best interests of a child lie and whether those interests will be served by the order sought.
[42] An appeal from a decision under s 48 is brought under s 143 of COCA. Such appeals proceed by way of rehearing.15
[43] As the Supreme Court stated in Austin, Nichols & Co Inc v Stichting Lodestar the appellant bears an onus of satisfying the court that it should differ from the decision under appeal and it is only if the appellate court considers that the appeal decision is wrong that the appellate court is justified in interfering with it.16
However as the Court further said:17
Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion is an assessment of fact and degree and entails a value judgment. If the appellate court’s opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ.
15 Section 143(4), District Courts Act 1947, s 75.
16 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [4].
17 At [16].
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.
[44] As far as the specific application of the Austin Nichols analysis to COCA
appeals is concerned, the Court of Appeal said in Kacem v Bashir:18
[31] The Court of Appeal discussed the application of the decision of this Court in Austin Nichols & Co Inc v Stichting Lodestar to the present kind of appeal. The Court correctly observed that on a general appeal of the present kind the appellate court has the responsibility of considering the merits of the case afresh. The weight it gives to the reasoning of the court or courts below is a matter for the appellate court's assessment. We should add here that if the appellate court admits further evidence, that evidence will necessarily require de novo assessment and consideration of how it affects the correctness of the decision under appeal. The Court of Appeal was right to say that Courtney J had rather overstated the effect of Austin, Nichols when she indicated she should approach the appeal to the High Court “uninfluenced” by the reasoning of the Family Court. The High Court was required to reach its own conclusion, but this did not imply that it should disregard the Family Court's decision. What, if any, influence the Family Court's reasoning should have was for the High Court's assessment.
[45] Accordingly in determining this appeal I take account of the fact that
Judge Walsh had the advantage of hearing and seeing the witnesses give evidence in the
2014 hearing. Nevertheless, I am free to reconsider the Family Court’s decision, and to substitute my own views on evaluative and factual questions, if I consider that that decision was wrong.
Further evidence
[46] Before turning to consider the merits of the appeal it is necessary to address the further evidence that was sought to be adduced on R’s behalf. That evidence was prepared in response to Judge Walsh’s comment that he had not been provided with any independent expert evidence about R’s psychological state, the causes of his past violent behaviour or the likelihood of that recurring. The evidence in question (which was filed before the hearing of the appeal) was an affidavit from Dr Peter Cowley, a psychiatrist with Māori Mental Health Services at the Capital & Coast District Health Board. R was referred to Dr Cowley in mid 2012 and Dr Cowley has
continued to treat him since that time.19
18 Kacem v Bashir, above n 4 (footnote omitted).
19 Dr Cowley deposed that he had seen R 25 times since his initial assessment.
[47] The gist of Dr Cowley’s affidavit was that:
(a) he diagnosed R with ADHD which, together with his abuse of illicit substances, in Dr Cowley’s view goes some considerable way to explaining his dysfunctional life, lack of achievement, chronic frustration, impaired interpersonal behaviours and violent outbursts;
(b)R has attended individual and group counselling since his last release from prison in 2012 and was, at the time the affidavit was sworn, completing a Stopping Violence program;
(c) he had assessed R as being a suitable candidate for treatment with Ritalin, by which he meant that he formed the view that R would not choose simply to on-sell the Ritalin for profit; and
(d) R has been compliant with his treatment.
[48] At the hearing I received Dr Cowley’s evidence on a de bene esse basis. The principal submission made against its admission was that the affidavit was proffered as expert opinion evidence but was not substantially helpful because the relevant opinions were largely based on R’s self-reporting.
[49] I am not, however, sure that it is fair to characterise the affidavit in quite that way. In many ways Dr Cowley gives factual evidence about his diagnosis and treatment of R. While that necessarily involves the expression of opinion (such as what was the cause of R’s psychological difficulties) he does not hold himself out as an independent expert and, indeed, has not complied with the relevant high court rules in that regard.
[50] Under r 20.16 leave to adduce further evidence on an appeal may only be granted where there are special circumstances. The cogency and freshness of the proposed evidence are the common benchmarks.
[51] In the present case it certainly cannot be said that Dr Cowley’s evidence is
“fresh” in the relevant sense. Dr Cowley could have been called as a witness in the
Family Court and the matters to which he has deposed were known at the time of the hearing of R’s application.20 Although these matters are not determinative, it is not helpful to R’s position.
[52] As to cogency, the issues of self-reporting and lack of independence also count against admitting the evidence. But the acid test is, perhaps, whether the information contained in the affidavit might make a difference to my conclusions below. Although I have carefully considered the affidavit, I have formed the view that it would not. In formal terms, therefore, I refuse leave to adduce it in the appeal.
Discussion
[53] In determining whether the Family Court decision was wrong to decline R’s application, the starting point is necessarily the grounds of appeal. In the present case, however, I observe at the outset that the way in which most of the grounds have been framed is not helpful. Many of them (a, b, d, e, h, j and k at [40] above) are conclusory; they do no more than repeat, in various guises, the bare assertion that Judge Walsh erred in making certain findings or to decide as he did. Similarly, putting the appeal on the basis that the Judge accorded too much or too little weight to conflicting factors (grounds c and g at [39] above) does not really advance matters, particularly given that COCA itself requires that protecting a child’s safety is to be valued or weighed more highly than the other s 5 principles.
[54] Be all that as it may, however, I consider that the appeal comes down to three relatively simple points, all of which relate to the critical question of J’s safety.
[55] The first is a factual issue about whether, on the evidence, the Judge was wrong to have the reservations he did about the extent to which R had successfully addressed the causes of his past violence and antisocial behaviour.
[56] The second point relates to whether the Judge was wrong in his assessment of the strength of B’s subjective fears of R, and in placing weight on their likely
indirect effect on J, were contact to be granted.
20 Indeed, Dr Cowley annexes to his affidavit a letter written by him to R’s lawyer in 2013 advising
of the ADHD diagnosis.
[57] If I conclude that the Judge erred in either of these respects then it would fall to me to undertake my own evaluation of all the ss 4, 5 and 5A factors and to determine whether it was in J’s best interests to have some form of supervised contact with her father. And even if I conclude that there was no such error, a third issue would remain, namely whether, in light of the identified risks, the Judge was wrong to conclude that they could not be managed through supervision and other potential conditions on contact.
[58] As to the first matter, I have set out Judge Walsh’s “credibility” findings about R at [33] above. Ms Tarrant for R took objection to aspects of these findings and I was taken to passages in the transcript of evidence which was said to contradict them. But based on my own review of the evidence (while bearing in mind that Judge Walsh had the advantage of seeing and hearing from R) I consider that the Judge’s conclusions on that topic cannot fairly be criticised. More particularly:
(a) it is indisputable that there was no independent expert assessment provided to the Family Court that might have explained the nature and causes of R’s violence and whether he had satisfactorily addressed his underlying problems;
(b)it is similarly indisputable that three women have obtained protection orders against R and that he has been convicted on nine occasions for breaching such orders and has a number of other convictions for violence;21 and
(c) like Judge Walsh, I:
(i)entirely reject any attempt by R to blame his relationship, B or her mental health for his past violence towards her;
21 I note that, contrary to the ground of appeal recorded at [39](f) above, at [59] the Judge correctly recorded that R had three convictions for breaching the protection order relating to B. The question of the tattoo and whether or not it continues to represent R’s attitude towards women I regard as de minimis.
(ii)accept on the evidence that R was psychologically abusive to J when he had supervised contact at Barnardos in 2010, that he did not comply with the terms of supervision and was antagonistic to the supervisor; but
(iii)accept that R has now begun to acknowledge, and has shown some insight into, his past abusive behaviour.
[59] In R’s favour, however, I am also unable to see any substantive basis for disagreeing with the Judge’s conclusion that the risk of R causing physical harm to J herself or of abducting her, should contact be ordered, is minimal.
[60] As far as B’s fear and anxiety and its effects on J is concerned, there is again no evidential basis upon which I could reasonably differ from Judge Walsh’s factual conclusion that B remains particularly vulnerable and that she is very likely to become acutely stressed and anxious if contact is resumed. I have little doubt that she would not be able either psychologically or emotionally, to promote contact with R in the way that is necessary for contact to be successful. As I have said, the Judge had the advantage of seeing and hearing from B and Judge Murfitt’s earlier decision on the protection order lends further support to this assessment.
[61] Nor can I quibble with the logic that B’s concerns (regardless of whether they are based on present-day reality) will have real and adverse effects of J. B’s high levels of stress and anxiety would in all probability play out in terms of her own ability to care for J and would also indirectly place stress on J herself. Irrespective of the applicability or not of any legal precedent relating to protection orders the facts in this case give rise to concerns for J’s welfare that must, in my view, be taken into account.
[62] Given my conclusions on the first two issues the question becomes whether ordering supervised contact (with or without further specific conditions) might mitigate the risks to J’s safety and well-being that have been identified. Judge Walsh thought not and, as I have said, the history of R’s past conduct is against R on this.
Similarly the nature of the concerns arising from B’s likely reaction to contact (and
its flow on effects) cannot obviously be addressed in that way.
[63] There is also the risk that even supervised contact would not go well. Mr Garner said it was very difficult to predict how J would react to seeing a father that she does not know and about whom she has heard mainly negative things. Equally unpredictable (Mr Garner said) is how R himself is likely to respond to or engage with J one-on-one.
[64] If contact is ordered and difficulties are encountered, I also agree with the Judge’s assessment that B’s own vulnerabilities mean that she would be unlikely to be able to provide parental assistance to J in any meaningful way. There is therefore force in the Judge’s conclusion that contact should be deferred until J is, herself, old enough to be able to make any issues clearly known and to seek appropriate assistance to deal with them herself.
[65] Accordingly, I am unable to discern any error in the Judge’s assessment or approach. Like him, I acknowledge that there are countervailing factors that would ordinarily favour the resumption of contact, in particular the principles that J should if possible have a relationship with both of her parents, and that her relationship with her whānau should be preserved and strengthened. Similarly the desirability of preserving and strengthening J’s identity (her Māori heritage) favours contact.
[66] Against that, however, are the safety and related concerns I have discussed above. Less important, but still relevant, is the principle that J should have continuity in her care, development, and upbringing, which militates somewhat against a change to the present arrangement. Although, like Judge Walsh, I would not place much weight on J’s own views, her repeated statements that she wishes things to “stay as they are” should not be discounted here. I also record that counsel for the child, Ms Stevenson, did not support supervised contact at this time.
[67] The appeal is dismissed. Memoranda on costs may be filed if agreement cannot be reached. Ms Stevenson submitted that it would not be in J’s best interests
to be told about either the fact or the result of this appeal and I make a direction
accordingly.
Solicitors: Aspire Legal Services, Porirua, for Appellant Cuba Family Law, Wellington, for Respondent Rachael Dewar Law, Wellington, Lawyer to Assist
“Rebecca Ellis J”
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