RM v JB
[2022] NZHC 1126
•20 May 2022
NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION,
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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2021-488-000091
[2022] NZHC 1126
IN THE MATTER of an appeal against the decision of the Family Court dated 4 August 2021 BETWEEN
RM
Appellant
AND
JB
Respondent
Hearing: 30 November 2021 and 1 December 2021 Counsel:
L J Kearns QC and K Cohen for Mr M C Muston for Mrs B
V A Crawshaw QC and M Davies for Ms K N J Dore and G Thompson for Mr B
D W Hart for the children (V and L)
Judgment:
20 May 2022
JUDGMENT OF KATZ J
This judgment was delivered by me on 20 May 2022 at 3:30 pm pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
Solicitors: Thomson Wilson
Henderson Reeves Connell Rishworth Wills Westenra Ltd
C Muston D W Hart
Counsel: L J Kearns QC
V A Crawshaw QC
M v B [2022] NZHC 1126 [20 May 2022]
CIV-2021-488-000097 CIV-2021-488-000098
IN THE MATTER of an appeal against the decision of the
Family Court dated 4 August 2021
BETWEEN KV
Appellant in CIV-2021-488-000097 Respondent in CIV-2021-488-000098
AND CB
Appellant in CIV-2021-488-000098 Respondent in CIV-2021-488-000097
Table of Contents
Introduction........................................................................................................... [1]
Background............................................................................................................ [7]
The Care of Children Act 2004........................................................................... [15]
Section 4 – Child’s welfare and best interests to be paramount [16]
Section 5 principles [17]
Parenting and contact orders [20]
Approach on appeal............................................................................................. [22]
Mr and Mrs B’s past behaviour.......................................................................... [25]
The Judge’s concerns [26]
The potential risks associated with Mr and Mrs B’s polyamorous lifestyle,
and strategies to mitigate those risks [30]
Have V and L been exposed to adult sexualised behaviours in the B home? [34] Have V and/or L been introduced to short-term partners of Mr and Mrs B? [36] Were Mr and Mrs B child focused and appropriately nurturing to V and L? [40] Were V and/or L psychologically abused? [42]
Does Mr and Mrs B’s past behaviour raise safety concerns? [57]
Did the Judge err in concluding that shared care would be in V’s
best interests?....................................................................................................... [62]
The Family Court decision [63]
What are the risks to V’s psychological safety in the B household? [68] Did the Judge place undue weight on V’s views and/or the status quo? [83] Is shared care in V’s best interests? [88]
Did the Judge err in her determination of the final parenting order in
respect of L?......................................................................................................... [91]
The Family Court decision [93]
What are the risks to L’s psychological safety in the B household? [97]
Was the Judge correct to order unsupervised daytime contact and
supervised overnight contact? [112]
Is the condition that L not be exposed to nor educated in his father’s
polyamorous lifestyle appropriate? [119]
Are the conditions of the parenting order requiring L’s parents to obtain a psychiatric diagnosis and agree a treatment plan before overnight
contact commences appropriate? [125]
Is the condition requiring that Mrs B not be present at changeover for
L appropriate? [134]
Is the condition requiring that L be transported in a five-point car seat
harness appropriate? [138]
Did the Judge err in making final parenting orders for L, rather than
further interim ones?......................................................................................... [139]
Summary and conclusion................................................................................... [142]
Result.................................................................................................................. [150]
Introduction
[1] This is an appeal from a judgment of Judge L King in the Family Court, making final parenting orders under the Care of Children Act 2004 (the Act) relating to two stepsiblings – a nine-year-old girl (V) and a five-year-old boy (L).1
[2] L’s father (Mr B) and V’s mother (Mrs B) entered into a relationship in early 2018 and married in February 2019. They have chosen to live a polyamorous lifestyle although, currently at least, they are not involved with any other long-term, committed, partners. Rather, since their marriage, they have had a number of short-term partners (either singles or couples).
[3] V is the child of Mrs B and her former partner Mr M. L is the child of Mr B and his former partner Ms K. V and L live with Mr and Mrs B some of the time. L’s mother and V’s father believe that V and L have been psychologically harmed by exposure to aspects of Mr and Mrs B’s polyamorous lifestyle and that the final parenting orders that have been made will fail to protect them from future psychological harm.
[4] In her substantive decision of 4 August 2021 (which followed an 11-day hearing) Judge King found that V had been psychologically abused in Mrs B’s care and that L had been psychologically abused in Mr B’s care. V was found to be safe in her mother’s unsupervised care going forwards, however. L was found to be safe in his father’s unsupervised care in the daytime, but not in the evenings or at night-time. Pursuant to the Judge’s final parenting orders:
(a)V is to continue to be in the shared care of her parents, on a week about basis, subject to certain conditions aimed at protecting V from psychological harm arising out of inappropriate exposure to adult sexual behaviours or language.
(b)L’s mother is to have responsibility for his day-to-day care. His father, however, was granted unsupervised contact during certain specified daytime hours, as well as supervised overnight contact on the weekend
1 KV v CB [2021] NZFC 7015.
that he exercises daytime contact, at the home of L’s paternal grandfather, who must be present at all times. The order in respect of L is subject to the same protective conditions as V’s final parenting order.
[5]Three appeals have been filed:
(a)V’s father says there are serious risks posed to V’s psychological welfare if she is to remain in her mother’s care on a week about basis. He seeks an order granting him day-to-day care of V, with V’s mother only having supervised contact, subject to strict conditions.
(b)L’s father seeks further contact with his son, including unsupervised overnight contact. He also seeks the removal of a number of the conditions of the parenting order.
(c)L’s mother seeks an order that L’s father’s care of his son must be supervised at all times and be subject to strict conditions.
[6] The primary issues raised by the appeals relate to whether the Judge correctly assessed the risk of psychological harm to V and L in the B household.
Background
[7] V is the only child of Mr M and Mrs B, who separated in January 2016 when she was three-and-a-half-years old. From the age of five, V has lived in a 50/50 shared care arrangement between her parents, on a week about basis. She is now aged nine. Mr M is now married to Mrs M, and they have a young son together.
[8] L is the only child of Ms K and Mr B, who separated in January 2018 when he was one year old. L has been in the primary care of his mother since then but has been a regular visitor to the B household. He is now aged five.
[9] Mr and Mrs B entered into a relationship in early 2018. This was a polyamorous relationship and included Mrs B’s fiancé at the time. In March 2018, Mr B moved in with Mrs B and her fiancé. The three lived together in a polyamorous relationship until
October 2018, when the fiancé left the relationship. Mr B and Mrs B subsequently married, in February 2019.
[10] The blended family of Mr and Mrs B also includes Mrs B’s two sons from a previous relationship, J and S, who are both now teenagers. Mrs B has shared care of them, on a week about basis.
[11] Since the departure of Mrs B’s former fiancé, Mr and Mrs B have not had any other long-term partners. Rather, they have had a succession of relatively short-term, non-exclusive, relationships with other individuals and couples. These relationships appear to be primarily focused on sexual activity.
[12] In the Family Court, Mr M and Ms K alleged that V and L had suffered psychological abuse in the care of Mr and Mrs B, as a result of the couple prioritising their own sexual lifestyle over the children’s needs. Mr and Mrs B rejected this assertion and maintained that neither child had been psychologically abused, and the children were safe in their care.
[13] Ms K commenced care proceedings in respect of L in October 2018. Mr M commenced proceedings in relation to the care of V in March 2020. In May 2020, Judge King consolidated the proceedings, and subsequently presided over hearings to determine V and L’s interim care arrangements. The interim parenting order in respect of L is dated 6 July 2020. The interim parenting order in respect of V is dated 11 November 2020. The Judge’s interim orders remained in place until they were replaced by final parenting orders in the Judge’s substantive decision of 4 August 2021.
[14] Ms K subsequently applied to this Court for a stay of the Family Court Judgment (namely the final parenting orders in respect of L). On 22 October 2021 Gordon J granted that stay and amended the final parenting orders pending the outcome of this appeal to provide for Mr B’s contact with his son during the day to be monitored rather than unsupervised.2
2 KV v CB [2021] NZHC 2840.
The Care of Children Act 2004
[15] The purpose of the Act is 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; and to recognise certain rights of children.3
Section 4 – Child’s welfare and best interests to be paramount
[16] Section 4 states that the welfare and best interests of the child must be the first and paramount consideration in applications and proceedings under the Act. 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 in s 5 of the Act;4
(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;5 and
(c)may take into account other matters relevant to the child’s welfare and best interest.6
Section 5 principles
[17] The six principles that must be considered by the court when determining what best serves the welfare and best interests of a child are that:7
(a)a child’s safety must be protected and, in particular, he or she “must be protected from all forms of violence … from all persons”;8
3 Care of Children Act 2004, s 3.
4 Care of Children Act 2004, s 4(2)(a)(ii).
5 Care of Children Act 2004, s 4(2)(b).
6 Care of Children Act 2004, s 4(4)(b).
7 Care of Children Act 2004, s 5.
8 Care of Children Act 2004, s 5(a). “Violence” as defined in ss 9(2), 10 and 11 of the Family Violence Act 2018. The definition of violence contained in s 9 of the Family Violence Act 2018 includes psychological abuse. “Psychological abuse” is defined in s 11 of the Family Violence Act 2018.
(b)a child’s “care, development, and upbringing should be primarily the responsibility of his or her parents and guardians”;9
(c)a child’s “care, development, and upbringing should be facilitated by ongoing consultation and co-operation between his or her parents, guardians, and any other person having a role in his or her care under a parenting or guardianship order”;10
(d)a child “should have continuity in his or her care, development, and upbringing”;11
(e)a child “should continue to have a relationship with both of his or her parents, and … [his or her] relationship with his or her family group, whānau, hapū, or iwi should be preserved and strengthened”;12 and
(f)a child’s “identity (including, without limitation, his or her culture, language, and religious denomination and practice) should be preserved and strengthened”.13
[18] The s 5 principles are non-exhaustive. They do not limit the range of matters that may be considered in deciding what orders will best serve the welfare and best interests of the child. Principle (a) is the only principle that is expressed in mandatory terms, thus giving it greater importance than the other principles. “Violence” is defined broadly and includes psychological abuse.14
[19] In considering a child’s safety during day-to-day care or contact, the court must first assess whether any allegations of violence affecting the child have been established, and then assess the risk to the child from the person who has been found to have acted violently. This will involve reviewing the previous history of violence and assessing whether there is a pattern of behaviour that is likely to continue or escalate. When
9 Care of Children Act 2004, s 5(b).
10 Care of Children Act 2004, s 5(c).
11 Care of Children Act 2004, s 5(d).
12 Care of Children Act 2004, s 5(e).
13 Care of Children Act 2004, s 5(f).
14 For the purposes of s 5(a) of the Care of Children Act 2004, “violence” is given the same meaning as in ss 9(2), 10 and 11 of the Family Violence Act 2018.
undertaking a safety assessment, factors considered by the court include such things as how recent the conduct was, its frequency, its nature and level of seriousness, whether it arose in a particular context, the resulting physical and emotional harm, and whether the violence was isolated or formed part of a broader pattern of behaviour. The views of the other party and the child are also relevant, together with any steps taken by the violent parent to prevent further violence occurring.15
Parenting and contact orders
[20]Section 48 relates to parenting orders. It 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).
15 See Surrey v Surrey [2008] NZCA 565, [2010] 2 NZLR 581. See also Ness v Ness [2016] NZFC 2078 at [6]. These factors largely mirror the factors listed in the former s 61 (Care of Children Act 2004). The former ss 60 and 61, which provided a framework for making orders for contact (supervised 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.
[21] Pursuant to s 51, the court must consider protective conditions in certain cases, including when making a parenting order for contact between the child and a parent who has previously inflicted family violence against the child. Section 59 provides that the court may order supervised contact (as defined in s 58) in some circumstances, namely where the court:16
(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.
Approach on appeal
[22] An appeal from a parenting order proceeds by way of rehearing.17 As the Supreme Court stated in Austin, Nichols & Co Inc v Stichting Lodestar the appellant bears an onus of satisfying the appeal court that it should differ from the decision under appeal, and it is only if the appellate court considers that the appealed decision is wrong that the appellate court is justified in interfering with it.18 However, as the Court further said:19
[16] 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. 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.
(footnote omitted)
16 Care of Children Act 2004, s 59(1).
17 Section 143(4) of the Care of Children Act 2004 provides that the High Court Rules 2016, and ss 125–130 of the District Court Act 2016, with all necessary modifications, apply to an appeal under s 143 of the Care of Children Act 2004 as if it were an appeal under s 124 of the District Court Act 2016. Section 127 of the District Court Act 2016 states that appeals must be by way of rehearing. Section 124 of the District Court Act 2016 confers a general right of appeal, stating that a party to a District Court proceeding can appeal to the High Court, unless another act expressly confers or prohibits a right of appeal.
18 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [4].
19 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
[23]In Kacem v Bashir20 the Supreme Court discussed the specific application of the
Austin, Nichols appellate approach to appeals under the Act. They said:21
[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.
(footnotes omitted)
[24] Accordingly, in determining this appeal I take account of the fact that Judge King had the advantage of hearing and seeing the witnesses (including all four parents) give evidence. 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 the decision was wrong.
Mr and Mrs B’s past behaviour
[25] Many of the issues that arise in these appeals turn on an analysis of Mr and Mrs B’s past behaviour and sexual lifestyle, and the conclusions that can be drawn from that. I will therefore address that issue first. I note at the outset, however, that the Court may only take into account Mr and Mrs B’s past conduct to the extent that it is relevant to V and L’s welfare and best interests.22 The sexual behaviours of, and between, consenting adults are not normally relevant to the determination of risk to children. It is only to the extent that Mr and Mrs B’s sexual activities and/or polyamorous lifestyle potentially impacts on V and/or L that it is of legitimate concern to the Court, or indeed the children’s other parents.
20 Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1.
21 Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1.
22 Care of Children Act 2004, s 4(2)(b).
The Judge’s concerns
[26] The Judge’s findings that V and L had been psychologically abused were based on three concerns that related to both V and L, three that were exclusive to V, and three that were exclusive to L.
[27]The shared concerns were that:
(a)First, the children had been put at risk of exposure to sexual activity in the B home. Of particular concern was that, on 11 October 2019, when all four children were in the care of Mr and Mrs B, Ms W, a woman Mr and Mrs B had met a month or so previously through the dating app Tinder, came to the home for dinner and met the children. Later, when the children were in bed, Mr B and Ms W engaged in sexual activity, including sexual intercourse, in the lounge. Mrs B’s evidence was that she did not participate, but kept a lookout to prevent the children (who were in their bedrooms) from walking in. The Judge found that Mr and Mrs B had failed to prioritise the children’s psychological safety over their own needs.
(b)Second, the Judge noted inconsistencies in relation to Mr and Mrs B’s evidence regarding the events of 11 October 2019. These included:
(i)a claim that Ms W’s presence in the B home that evening was the result of a miscommunication, when Mrs B had in fact collected Ms W from her home;
(ii)that Ms W’s presence in the home was a clear breach of a judicial direction (made by consent) that L was not to be introduced to any of his father’s partners other than Mrs B,23 and that Mr B would have known L was not to come into contact with Ms W, despite
23 I note that there was also a direction by Judge Courtney on 26 October 2018 that L was not to be exposed to any sexual behaviour in any household. I am not satisfied, however, that this order was breached on 11 October 2019. Although there was a clear risk that L could have been exposed to sexual behaviour that night, he was not.
an attempt by Mr B to say Ms W was not a partner and therefore he was not in breach; and
(iii)that Mr and Mrs B had misled Ms Clough, at a meeting the very next day, by telling her that they were not currently intending to introduce the children to anyone new.
(c)Third, Mr and Mrs B had failed to mitigate any harm suffered by V and L caused by introducing them to successive short-term partners.
[28]The additional concerns exclusive to V were:
(a)V’s knowledge and use of sexualised language. For example, the Judge accepted evidence from the mother of V’s friend that she overheard V say the words “orgy”, “pussy”, “cunt” and “cock”, and that her daughter had told her that when they were playing V was “making the male doll be angry and violent with two girl dolls for being “cheating sluts””.
(b)The possibility that V had been exposed to sexual activity in her mother’s home, based on Ms Clough’s “triangulation of data”. The three sources relied on by Ms Clough were:
(i)V allegedly acting out sexual scenes with dolls;
(ii)V telling Ms Clough that she knew what the word “orgy” meant; and
(iii)information from J and S regarding their behaviour at night (such as taking water bottles to their sleepout) intended to avoid inadvertent exposure to sexual activity in the lounge.
(c)Mrs B had failed to adequately address previous concerns raised by J’s school regarding his inappropriate sexualised behaviour.
[29]The additional concerns exclusive to L were that:
(a)L was 16 months old when Mr B had him sleep in a cot in the same bedroom in which Mr B, Mrs B and Mrs B’s then fiancé shared a bed.
(b)L was two years and 10 months old when, while in their care, Mr B and Mrs B engaged in a seven-and-a-half-hour online chat with Ms W and her partner, the content of which was of an explicit sexual nature. The chat log included a reference to Mr B being dragged outside to play with L in the middle of “furry porn scrolling”.
(c)L was less than three years old when the 11 October 2019 incident occurred.
The potential risks associated with Mr and Mrs B’s polyamorous lifestyle, and strategies to mitigate those risks
[30] The parties accepted most (but certainly not all) of the Judge’s factual findings. The Judge presided over an 11-day hearing and heard oral evidence from a number of witnesses. I have carefully reviewed the notes of evidence, the relevant reports (in particular from the court appointed psychologist, Ms Clough), and the documentary exhibits. In my view, the Judge’s factual findings were, on the whole, well supported by the evidence. Save to the (limited) extent that my findings below differ from those of the Judge, I see no basis to depart from her findings of fact.
[31] Although polyamory is still a relatively unusual family configuration, there is no evidence before the Court that being raised in a polyamorous family environment is inherently harmful to the emotional wellbeing of children. Rather, Ms Clough’s evidence was that the limited academic literature available on polyamorous families identified the key risks to children’s emotional wellbeing as:
(a)The risk of loss of a loved caregiver, whether it be through divorce, separation or death. As Ms Clough noted, this risk is inherent in any form of adult relationship, whether it be monogamous or non-monogamous; hetero-normal or homosexual; polyamorous; or otherwise. The primary concern in any relationship is if a child is exposed to frequent changes of
a parent’s partner and therefore the subsequent loss of caregivers that they may have become attached to.
(b)The risk of discrimination for children whose parents are in relationships that are different to societal norms. This risk will arise to some degree in all family structures that are not hetero-normal.
[32] Given that a polyamorous lifestyle is different from currently accepted societal norms of habitation and families, Ms Clough stated that it is incumbent on parents to resource their children with ways of dealing with this. Ms Clough suggested that, in the context of this case, the risk of psychological harm to V and L could be mitigated with a focus on the following:
(a)the adults in the relationship are child focused and appropriately nurturing to the children;
(b)the relationships are long-standing and stable, with no introduction of a new person to the child until such time as the relationship is well established; and
(c)the children are not exposed to adult sexualised behaviours.
[33] In my view it is helpful to consider Mr and Mrs B’s past behaviour through the lens of these mitigating strategies. In other words, have Mr and Mrs B been appropriately child focused? Have they introduced the children to short-term partners? Have they exposed the children to adult sexualised behaviours (or risked doing so)?
Have V and L been exposed to adult sexualised behaviours in the B home?
[34] There is no evidence that V and L have been directly exposed to any adult sexual activity. Mr and Mrs B clearly ran a real risk of exposing V and L to such behaviour, however, when Mr B engaged in sexual activity with Ms W in the lounge of the family home on 11 October 2019.
[35] As the Judge noted, the evidence also raises the possibility that V has been exposed to sexual activity in the B home. J and S have clearly been exposed to such
activity (at least indirectly) and have adopted specific strategies to avoid seeing it. Further, J’s history of inappropriate sexualised behaviour at school also tends to suggest some exposure to adult sexualised language or behaviours. This context, combined with V’s acting out with dolls and sexualised language, raises the possibility that she has been exposed to sexual activity in the B home, or at least has an age-inappropriate awareness of the types of sexual activity that take place. It is no more than a possibility, however. As Mr Hart pointed out, given the prevalence of online pornography and access to internet capable devices, V could have potentially been exposed to inappropriate sexual content anywhere.
Have V and/or L been introduced to short-term partners of Mr and Mrs B?
[36] Mr and Mrs B commenced a relationship in early 2018. Mr B subsequently moved in with Mrs B and her then fiancé in March 2018. The three adults lived together in a polyamorous relationship until October 2018.
[37] L was presumably exposed to the relationship throughout that period, given that he slept in a cot in the adults’ bedroom when he visited. V was also presumably exposed to this relationship during the times she was in her mother’s care.
[38] In my view, however, the relationship between Mr B, Mrs B and her then fiancé was not a transient relationship, but a committed one that appears to have been relatively stable for the time the three adults were living together. The three adults shared a home and a bed for approximately seven months. I therefore do not put this relationship in the same category as the short-term relationships Mr and Mrs B have engaged in since Mrs B’s former fiancé moved out.
[39] V and L did, however, both meet one or more short-term partners. V met a short-term partner, BW, who was introduced as “Mummy’s girlfriend” in June 2019, and V met Ms W on several occasions in late 2019. There is also evidence that V met a short-term partner K, whom she appears to have formed some degree of (relatively low level) attachment to. L met Ms W in October 2019. It is not clear if L also met other short-term partners. Introducing V and L to short-term partners clearly carried some risk of causing emotional harm.
Were Mr and Mrs B child focused and appropriately nurturing to V and L?
[40] I have no doubt that V and L are deeply loved by their respective parents. Three incidents in particular, however, demonstrate that Mr and Mrs B at times lacked child focus and failed to prioritise V and L’s emotional welfare and safety over their own sexual lifestyle. The incidents are the 11 October incident with Ms W; engaging in a sexually explicit online chat for over seven hours when L was in Mr B’s care; and introducing V and L to short-term partners.
[41] Mr and Mrs B’s lack of child focus is further illustrated by their previous attempts to justify their “right” to engage in sexual activity with other people in the family home while V and L are in their care. For example:
(a)Mr B argued that a Court direction prohibiting any partners other than Mrs B being present during his contact with L was not breached by Ms W’s presence in the family home for dinner, followed by sexual activity, on the basis that Ms W was not a “partner”. The Judge rightly rejected this narrow interpretation in a context where Mr B would have known that the purpose of the condition was to protect L from potential harm caused by exposure to multiple people and/or adult sexual activity.
(b)On 1 June 2020 Mr and Mrs B entered into a parenting agreement with Mr and Mrs M in relation to V. The parenting agreement prohibited Mr and Mrs B from introducing any new partners to V as partners until at least three months after having been acknowledged as a partner. The only exception provided for in the agreement was that “[t]hese persons may be around [V] in a platonic sense and setting, i.e. for a board game night.” At the interim hearing Mr and Mrs B’s evidence was that they believed that this exception allowed a board game evening to conclude in consensual sex between the adults present in the home, while V and L were staying. (I note, however, that despite this strained and clearly incorrect interpretation, there is no evidence of any actual breach of this condition, which was only operative from 1 June 2020).
Were V and/or L psychologically abused?
[42] Mr B appealed the Judge’s finding that he had psychologically abused L. Mrs B did not formally appeal the finding that she had psychologically abused V. However, Mrs B’s counsel, Mr Muston, made submissions on the issue on the basis that s 128(6) of the District Court Act 2016 empowers the High Court on appeal to make any decision it thinks should have been made. That power may be exercised in favour of a respondent or party to the proceedings even if the respondent or party did not appeal against the decision.
[43] Given that the Judge’s findings that V and L were both psychologically abused are inextricably linked, it is necessary to consider those findings together.
[44] The definition of psychological abuse in the Family Violence Act 2018 relevantly includes:
(a)intimidation or harassment (including various types of “stalking” behaviour);24
(b)damage to property;25
(c)ill-treatment of household pets;26
(d)financial or economic abuse (for example, unreasonably denying or limiting access to financial resources, or preventing or restricting employment opportunities or access to education);27
(e)in relation to a person unable, by reason of age, disability, health condition, or any other cause, to withdraw from the care or charge of another person, hindering or removing (or threatening to hinder or remove) access to any aid or device, medication, or other support that affects, or is likely to affect, the person’s quality of life;28 and
24 Family Violence Act 2018, s 11(1)(b).
25 Family Violence Act 2018, s 11(1)(c).
26 Family Violence Act 2018, s 11(1)(d).
27 Family Violence Act 2018, s 11(1)(e).
28 Family Violence Act 2018, s 11(1)(f).
(f)threats of physical abuse, of sexual abuse, or of abuse of one of the kinds stated above.29
[45]In addition, a person psychologically abuses a child if that person:30
(a)causes or allows the child to see or hear the physical, sexual, or psychological abuse of a person with whom the child has a family relationship; or
(b)puts the child, or allows the child to be put, at real risk of seeing or hearing that abuse occurring.
[46] Psychological abuse may be or include behaviour that does not involve actual or threatened physical or sexual abuse.31
[47] I accept Ms Dore’s submission, on behalf of Mr B, that none of the Judge’s factual findings fall within the specific categories set out in the definition of psychological abuse in s 11.32 That definition is inclusive, however. Conduct that does not fall within the examples given in s 11 may still be psychologically abusive. As Gendall J observed in M v Police:33
Psychological abuse may take an infinite variety of forms. … It is to be determined in the context of all the surrounding circumstances, historical as well as proximate or present, as they relate to the abuser and victim. Psychological abuse typically plays on a victim’s mind and emotions, and often does not involve physical contact …
There may be cases where genuine, but wrong-headed beliefs or motives on the part of a person (for example, in seeking to create or resurrect a relationship) can amount to psychological abuse depending on all the circumstances.
[48] Some of the factual findings that underpinned the Judge’s conclusions that V and L had been psychologically abused relate to matters that the children were not aware of at the time, or subsequently, and which did not otherwise impact them. This raises the issue of whether such conduct can be psychologically abusive (which is a separate issue
29 Family Violence Act 2018, s 11(1)(a).
30 Family Violence Act 2018, s 11(2).
31 Family Violence Act 2018, s 11(4).
32 Family Violence Act 2018.
33 M v Police [2007] NZFLR 160 at [15] and [17].
as to whether such conduct raises safety concerns). McKenzie J considered this issue in BZ v MS (Protection Order).34 He held that conduct unknown to the applicant at the relevant time cannot constitute psychological abuse:35
It is of the essence of psychological abuse that the abused party must be aware of the conduct, so as to be potentially psychologically affected by it.
[49] I broadly agree with that observation. The person affected does not necessarily need to know all of the details of the relevant conduct, but if they are entirely unaware of it, it is difficult to see how it can psychologically or emotionally affect them. For example, in this case, neither V nor L were aware of the sexual activity that took place in the lounge on 11 October 2019. It follows, in my view, that they cannot have been psychologically harmed by it.
[50] It is not necessary for a person to be aware of the precise details of behaviour, however, to be harmed by it. Here, Mr B engaged in sexually explicit chat on the internet for over seven hours while L was in his care. Although L would not have known exactly what his father was doing in the bedroom while L was watching television in the lounge, he would have been impacted to some extent by the fact that his father was disengaged and distracted for an extended period. (I note, however, that Mr B did put down his cell phone and go outside to play with his son when asked to do so). It is Mr B’s lack of focus on his son, rather than the precise activity that Mr B was engaged in, that had the potential to be harmful. From L’s perspective it was irrelevant whether his father was engaging in sexually explicit online activity, playing video games, or was distracted by work.
[51] There were two other matters identified by the Judge that V and/or L would have had some knowledge or awareness of, and which therefore had the potential to be psychologically harmful. The first is their exposure to Mrs B’s former fiancé. As set out at [37] above, in my view that was a relatively stable and committed relationship. I do not consider that it was psychologically abusive for either V or L to have been introduced to Mrs B’s former fiancé. Nor was it psychologically harmful for L (as a young toddler) to sleep in the same bedroom as the adults. Many babies and
34 BZ v MS (Protection Order) [2009] NZFLR 311.
35 BZ v MS (Protection Order) [2009] NZFLR 311 at [14].
toddlers sleep in a cot in their parents’ bedroom. There is nothing inherently harmful in that practice. Given his young age, it seems unlikely that L had any real understanding of the nature of the relationship between the adults. Obviously, however, whatever the family configuration, children should not be exposed to adult sexual activity. But there is nothing to suggest that L was so exposed.
[52] V and L did, however, both meet one or more short-term partners. As noted above, V met a short-term partner, BW, who was introduced as “Mummy’s girlfriend” in June 2019, and V met Ms W on several occasions in late 2019. There is also evidence that V met a short-term partner K, whom she appears to have formed some degree of attachment to. L met Ms W in October 2019. It is not clear if L also met other short- term partners.
[53] I accept Ms Clough’s evidence that meeting successive short-term partners has the potential to be psychologically harmful, particularly if a child forms an emotional attachment to one or more of those partners. This risk is not, of course, exclusive to polyamorous relationships. It is likely that many single parents also engage from time to time in short-term relationships, and that their children might meet such partners. Here, however, there is no suggestion that L became attached to Ms W. V appears to have formed an emotional attachment to one short-term partner, but at a relatively low level. Accordingly, in my view, while introducing V and L to one or more short term partners lacked child focus, it was not psychologically abusive.
[54] In conclusion, it is my view that while the above matters (considered both separately and in totality) raise some legitimate concerns, they are not sufficient to meet the threshold for a finding of psychological abuse in relation to either V or L. The Judge therefore erred in finding that V and L had been psychologically abused.
[55] I accept the submission of Mr Hart (counsel for V and L), however, that relatively little turns on whether a formal finding of psychological abuse is made. Rather, he submitted, the overarching issue is better stated as follows:
Was her Honour correct to find that there was risk for [V and L] in the care of [Mr and Mrs B]?
[56] The Judge also clearly recognised that safety was the critical issue in this case, and that whether Mr and Mrs B’s previous conduct met the threshold for psychological abuse was only one factor relevant to assessing that. For example, she concluded her finding that L had been psychologically abused with the statement that:36
Even if I am wrong, I rely upon M v Y and am satisfied there was an unacceptable risk to [L’s] safety whilst in his father’s care.
(footnote omitted)
Does Mr and Mrs B’s past behaviour raise safety concerns?
[57] Although the Judge’s findings of psychological abuse triggered a requirement to undertake a mandatory safety assessment, issues of safety may also arise where there is no proven history of violence (psychological or otherwise). Here, given the past behaviour of Mr and Mrs B, it is necessary to carefully assess the possible risks to V and L’s psychological safety in the B household.
[58] In my view, although Mr and Mrs B’s past behaviour may not reach the threshold for a finding of psychological abuse, it does raise safety concerns. I have found that at times Mr and Mrs B have lacked child focus and failed to prioritise V and L’s emotional welfare and safety over their own sexual lifestyle. The most serious example of this occurred on 11 October 2019 when they invited Ms W into their home and introduced her to the children, in breach of a condition imposed by the Court. They were cavalier about the risk of exposing V and L to the sexual activity that took place in the lounge of the family home that evening. The next day they deceived Ms Clough about what had taken place and denied any intent to introduce V or L to any new partners.
[59] Mr B’s prioritisation of his own sexual “needs” is further illustrated by his engagement in a seven-hour internet chat when L was in his care. Further, Mr and Mrs B appear to have taken a somewhat blasé approach to introducing V and L to new partners, regardless of the risks to V and L’s emotional wellbeing, even introducing one short-term partner to V as “Mummy’s girlfriend”.
36 KV v CB [2021] NZFC 7015 at [98].
[60] Although these types of behaviour may not have yet resulted in psychological harm to V and L, if Mr and Mrs B were to continue to prioritise their own sexual lifestyle over the emotional needs and wellbeing of V and L there is a clear risk that V and L would be psychologically harmed in the future. For example, if Mr and Mrs B were to continue to engage in sexual activity with other adults in the lounge of the family home while V and L are in their care, it is almost inevitable that V and L would eventually be exposed to such activity.
[61] A key issue for the Court, therefore, is whether Mr and Mrs B are likely to continue to engage in conduct that carries a significant risk of causing psychological harm to V and L.
Did the Judge err in concluding that shared care would be in V’s best interests?
[62] Mr M’s position is that the Judge erred in concluding that shared care would be in V’s best interests, because she significantly underestimated the risks to V’s psychological safety in the B household.
The Family Court decision
[63] Despite her finding that V had been psychologically abused, the Judge was satisfied that V would be safe in her mother’s care going forwards. The Judge noted that since the making of the interim parenting order on 11 November 2020, Mrs B has been obliged to comply with nine conditions in relation to her care of V, as set out in the interim parenting order. Those conditions were aimed at mitigating any risks to V, including risks arising out of exposure to her mother’s polyamorous lifestyle.
[64] The Judge carefully considered whether any of the conditions had been breached. She concluded they had not. Specifically, the Judge held that Mrs B had not breached the interim orders by performing “contact care” therapy at home (although to further mitigate risk the Judge added a condition in the final orders that contact care therapy was only to take place in a container placed in the garden, not in the lounge, nor anywhere inside the house). Further, the Judge noted that there was no allegation of inappropriate behaviour by either J or S towards V or L, and no evidence to suggest they
were a sexual abuse risk to V or L. The Judge did, however, include a condition in the final parenting order that neither J nor S should be left at home alone to care for V.
[65] In essence, the Judge’s view was that if Mrs B had complied with the protective conditions included in the interim parenting orders, it was reasonable to assume that she would comply with similar conditions in the final parenting orders.
[66] The Judge also had regard to V’s close relationship with her mother and noted Ms Clough’s concerns about the current care arrangement changing, and the desirability of maintaining V’s continuity in care, development and upbringing. Mr Hart also strongly supported continuing the status quo, based on V’s very clear views. The Judge considered that shared care best advanced the remaining s 5 principles, including that V’s care, development and upbringing should be the primary responsibility of her parents, and be facilitated by ongoing consultation and cooperation between Mr M and Mrs B; that the shared care arrangement would preserve and strengthen V’s relationship with her maternal and paternal blended families; and that the shared care arrangement would recognise that part of V’s identity is that she is a valued member of a modern blended family.
[67] Taking all of these matters into account, the Judge was satisfied that V’s welfare and best interests required that the current care arrangements continue. The final parenting order in relation to V was therefore that Mr M and Mrs B were to share the day-to-day care of V on a week about basis, subject to certain conditions, including that:37
(a)V shall continue to participate in play therapy until such time as Mr M and Mrs B agree play therapy is no longer required.
(b)Mrs B’s care shall be subject to the following additional conditions:
(i)V shall not be exposed to nor educated in Mrs B and Mr B’s polyamorous lifestyle. This includes:
37 KV v CB [2021] NZFC 7015 at [158]–[160].
1. No direct or indirect exposure to sexual language or sexual activity.
2. Not being introduced, nor exposed, to any sexual partner of, or person, who is in a sexual relationship with, either Mrs B or Mr B or both.
3. No access to nor use of any device that does not have an operating child lock or similar application installed to prevent access to age-inappropriate content.
4. Mrs B and Mr B not viewing any material of a sexual nature, whether it be in print, television or electronic.
(ii)Mrs B shall ensure that J and S do not have access to pornography on any device and shall undertake fortnightly checks of their devices to ensure compliance.
(iii)Neither J nor S shall be left at home on their own, either together or separately, with V.
(iv)No contact care training or therapy is to be undertaken in the B home; instead it shall be restricted to the container sited on the property.
What are the risks to V’s psychological safety in the B household?
[68] As noted above, the key issue for the Court, when considering V and L’s safety in the B household, is whether Mr and Mrs B are likely to continue to engage in patterns of behaviour that carry a significant risk of causing psychological harm to V and L. The final parenting orders include comprehensive protective conditions which, if complied with, will prevent such behaviour. It is therefore necessary to consider the likelihood of those conditions being complied with.
[69] Mrs B’s evidence was that from at least 1 January 2020 “we have operated on a purely monogamous basis around any and all of our children”. Mrs B claims to have taken “decisive steps” to ensure that there is no possibility of accidental exposure of the children to sexual activity in the B home. Going forwards, Mrs B claims:
Of our own volition, we will be continuing to operate on a strictly monogamous basis around our children for the foreseeable future.
[70] Ms Kearns QC, counsel for Mr M, pointed to the following matters, however, as evidence that Mr and Mrs B cannot be trusted on this matter:
(a)Mr and Mrs B breached a judicial direction not to expose L to any other partners on 11 October 2019 (they also risked exposing L to sexual activity on that date, which would have breached a second judicial direction);
(b)Mr and Mrs B deceived Ms Clough the next day about the extent to which they had exposed, or intended to expose, the children to their polyamorous lifestyle; and
(c)Mr and Mrs B have advanced strained and untenable interpretations of Court orders and a parenting agreement, to justify either engaging in sexual activity while V and L were in their care, or their theoretical “right” to engage in such activity.
[71] In addition, Ms Kearns submitted that Mrs B had breached a condition of the interim parenting order requiring that J and S not have access to pornography on any device. Like the Judge, however, I do not accept that a breach of this condition has been established. Mrs B’s evidence that she did not “periodically go looking for porn on their [J and S’s] devices” must be considered in the context of all of her evidence on the issue, which included that there was a parental override at the level of the entire internet connection to the house and that she relied on that rather than checking individual devices. Further, the Judge has clarified the relevant condition going forwards, to require Mrs B to check J and S’s devices fortnightly. This will further mitigate any risk in relation to this issue.
[72] A further risk factor identified by Ms Kearns was that V might be sexually abused, or exposed to sexually explicit material, by J, due to the fact that J had engaged in “sexualised behaviour” at school. Ms Clough was questioned about this, as was a former teacher of J and V’s. The teacher’s evidence was that J’s sexualised behaviour at school was primarily attention seeking in nature and was open, not furtive. Further, it had moderated over time. There have been no reports of sexualised behaviour by J in more recent times, since he started high school. J is reported to be very protective towards V and was “absolutely horrified” about the possibility that she might see pornography on his phone. In addition, Mr M had previously lived as part of a blended family with J for four years but did not see J exhibit any sexualised behaviours in the home environment. V herself has expressed no concerns about either of her older brothers. Ms Clough’s opinion, therefore, was that the risk profile to V from J was minimal. In my view that was a fair assessment.
[73] Ms Kearns also submitted that the Judge overestimated the level of Ms Clough’s support for a shared care arrangement, and that the Judge’s statement that “Ms Clough
... supports week about shared care” was a simplistic and a factually incorrect assessment of her evidence.
[74] Ms Clough gave extensive evidence at trial, which is difficult to summarise in one sentence. I accept the submission of Mr Muston (counsel for Mrs B), however, that the general thrust of Ms Clough’s evidence by the time of the substantive hearing (as opposed to views she may have expressed in her earlier reports) was that shared care should continue if risks were mitigated and there was appropriate, child focused behaviour by Mrs B and Mr B. Ms Clough acknowledged that it was for the Judge to determine the level of risk, but said that, having reviewed the notes of evidence, her view was that the level of risk to V was “pretty low”. Against this, V had expressed clear and consistent views to Ms Clough and the play therapist that she wished to spend equal time with her mother and father.
[75] Ms Clough’s support for shared care was accordingly qualified and, as she made clear in her evidence, was dependent on the Judge’s factual findings regarding the risks to V of a shared care arrangement. Ms Clough was very clear, however, that V’s strong preference was for a shared care arrangement, and that being separated from her mother
(due to the COVID lockdown) had been very distressing for V, who had taken many months to recover from that lack of contact. Ms Clough said that V would be distraught if she could not get to spend equal time with her mother going forwards. Such a disruption would pose “quite significant” risks to V’s emotional wellbeing, which Ms Clough rated as being at nine on of a scale of one to 10 (10 obviously being the most serious). Mr M himself acknowledged in his own affidavit evidence that V had been distressed when her contact with her mother had decreased during the COVID lockdown period.
[76] Overall, Ms Clough’s evidence raised the strong possibility that the risk to V’s emotional welfare of removing her from her week about care arrangement was significantly greater than any risk to her emotional welfare arising out of possible accidental exposure to her mother’s lifestyle.38 It is also of note that V’s play therapist and Mr Hart did not appear to have any concerns regarding V’s ongoing psychological safety in her mother’s care. On the contrary, in his submissions in this Court Mr Hart expressed the view that a change to the current shared care arrangements would be damaging for V, and that he would have real concerns as to the impact on her if the appeal were granted. I note that Mr Hart has spent “a lot of time” talking to V, who did not have concerns for her safety or emotional wellbeing in either of her parents’ homes and was extremely positive about the current week about care arrangement.
[77] Risk assessment is an inherently difficult exercise. The Judge’s approach was to look at Mrs B’s actions to see if they were consistent with her words. In other words, did Mrs B’s behaviour in the lead up to the Family Court hearing support the conclusion that she is now committed to taking a more child focused approach? The Judge assessed this primarily by examining whether Mrs B had breached the interim parenting order in relation to V, concluding that she had not. In my view this was a reasonable approach. Obviously, however, the duration of any recent changes in behaviour will be relevant. Further, any recent changes must be viewed against the backdrop of the totality of Mr and Mrs B’s previous conduct, including its duration and seriousness (as outlined above). Further, due regard should be given to Ms Clough’s expert views.
38 Ms Clough identified a further benefit of week about care as being that it would compartmentalise time for Mr and Mrs B to focus on adult activities, and would also allow time for child-focused care in the alternate weeks.
[78] The interim parenting order was made in November 2020. The Judge found that at the time of the Family Court hearing (March 2021) the interim order had been complied with. The Judge’s analysis of this issue, including in relation to Mrs B’s contact care therapy training, and the prohibition on the older children accessing pornography, was careful and thorough. I see no basis to depart from her findings on these issues. The Judge also took the opportunity to clarify and expand the conditions relating to contact care therapy and the prohibition on J and S accessing pornography on their devices. This fine tuning of the conditions will further mitigate any residual risk in relation to these issues.
[79] At the time of the hearing in the Family Court, however, the interim order had only been in force for four or five months. The period of compliance was therefore limited. A further period of approximately eight months elapsed, however, between the Family Court hearing and the appeal hearing in this Court. There is no evidence that Mrs B breached the protective conditions in either the interim or final parenting orders during that time (the interim orders continued until 4 August 2021, when the final orders came into effect). If there had been any material breaches, and Mr M was aware of them, he presumably would have sought leave to file updating evidence drawing this Court’s attention to any breaches.
[80] I accept, of course, that a Court will not always have visibility into what is happening in a household. Ms W’s evidence provided a rare insight from a third party into life in the B household in late 2019. That insight is no longer available. There is nothing to suggest, however, that Mr and Mrs B have exposed V to inappropriate behaviour (or risked such exposure) beyond the end of 2019. V is reported to be an outspoken and articulate child, who is now aged nine. Ms Clough observed that “[V] does talk” and noted that she had disclosed the contact care training and therapy that was happening in her mother’s home. Ms Clough further observed that since V had gone back into shared care (which she described as being a “considerable period of time” as at the date of the Family Court hearing) V had not disclosed any untoward behaviour in the B household. V has a number of trusted adults she can confide in, including her father, Ms Clough, her play therapist, and her teacher. As the Judge observed, however, the play therapist did not disclose any ongoing concerns, indeed “quite the opposite”.
[81] The extended period of compliance with both the interim orders and, subsequently, the final orders, supports the conclusion that Mr and Mrs B have indeed modified their behaviour as claimed. That provides considerable assurance regarding V’s emotional safety in the B household. Quite simply, there is no evidence that Mrs B had engaged in any conduct since late 2019 that has prioritised her own sexual lifestyle over V’s emotional wellbeing. Further, the previous conduct of concern was relatively infrequent and only included one proven incident (the 11 October incident) where V and L were put at serious risk of being exposed to sexual activity in the family home. V does not appear to be at risk of any of the more commonly recognised forms of psychological violence, as set out in s 11 of the Family Violence Act 2018.
[82] Taking into account the various matters I have outlined above, it is my view that the Judge was correct to conclude that the risks to V’s psychological safety in her mother’s care going forwards are low, and that V is therefore safe in her mother’s unsupervised care.
Did the Judge place undue weight on V’s views and/or the status quo?
[83] A child must be given reasonable opportunities to express views on matters affecting them. Any views so expressed (either directly or through a representative) must be taken into account in any proceedings under the Act.39
[84] V has consistently expressed the view that she wishes to remain in the current week about arrangement. She has expressed these views to Mr Hart, Ms Clough, the play therapist, and a teacher.
[85] Ms Kearns submitted that the Judge had placed undue weight on V’s views. This submission was predicated, however, on the assumption that the Judge had erred by not finding that there were extensive safety concerns with a shared care arrangement. If so, Ms Kearns submitted, safety concerns must outweigh V’s views.
[86] I accept that V’s personal preferences and views cannot prevail over serious safety concerns. However, that is not the case here. The risks to V in her mother’s care
39 Care of Children Act 2004, s 6(2).
are low. V has been in a shared care arrangement since October 2017, when she was a young child. In the absence of significant risks to V’s psychological safety, it was appropriate for the Judge to give considerable weight to V’s strong wish for that arrangement to continue.
[87] Similarly, her Honour’s view that the continuation of the status quo was and is in the best interests of V cannot be faulted. Such a conclusion was further supported by Ms Clough’s evidence which identified three clear needs for V – stability, security, and consistency of care.
Is shared care in V’s best interests?
[88] Having concluded that V was safe in her mother’s care, the Judge had regard to the remaining s 5 principles. These included that V’s care, development and upbringing should be the primary responsibility of her parents and facilitated by ongoing communication and cooperation between them.40 Further, the shared care arrangement would preserve and strengthen V’s relationship with her maternal blended family, as well as her paternal family,41 and recognise that part of V’s identity is that she is a valued member of a modern blended family.42 Further, both V’s own views and the status quo supported continuation of the existing shared care arrangements.
[89] The key attack to the Judge’s reasoning process related to V’s psychological safety. I share the Judge’s view, however, that V is at low risk of suffering psychological abuse in her mother’s care. Indeed, the totality of the evidence strongly supports the view that changing the current shared care arrangement would be likely to carry a significantly greater risk of psychological harm to V than continuing with the status quo. The previous disruption to the shared care arrangements, due to COVID, caused V significant emotional trauma which she took many months to recover from. V’s situation is now settled and stable. She is secure in her current care arrangements. They accord with her own preferences, as strongly expressed to various adults, including both Ms Clough and Mr Hart. There is simply no justification for disturbing the current care arrangements.
40 Care of Children Act 2004, s 5(b) and (c).
41 Care of Children Act 2004, s 5(e).
42 Care of Children Act 2004, s 5(f).
[90] For the reasons outlined, I am satisfied that the Judge was correct to conclude that V’s welfare and best interests would be best served by a continuation of the existing shared care arrangements.
Did the Judge err in her determination of the final parenting order for L?
[91] The Judge found that L’s welfare and best interests would best be served by Ms K having day-to-day care of L, with Mr B having unsupervised daytime contact and supervised overnight contact at Mr B’s father’s home on the weekend that Mr B exercises daytime contact, subject to certain conditions. Overnight contact is not to commence, however, until L has undertaken a psychiatric assessment, the source of L’s increased anxiety and/or deteriorating behaviours identified, and, if required, a treatment plan made and agreed between his parents.
[92] On appeal, Mr B seeks further contact with his son, including unsupervised overnight contact. He also seeks the removal of several other conditions of the parenting order. Ms K, on the other hand, seeks an order that L’s father’s care of his son must be supervised by a person approved by the Court and be subject to strict conditions.
The Family Court decision
[93] The interim parenting order in respect of L was made on 6 July 2020. It granted Ms K day-to-day care of L and provided for Mr B to have daytime contact only, with any contact in the B home to be monitored. In addition, various protective conditions were put in place to protect L from exposure to his father’s polyamorous lifestyle.
[94] The Judge found there had been no breaches of the interim parenting order. Nevertheless, she concluded that L would be safe in his father’s unsupervised care for the purposes of daytime contact only. The evening and overnight periods, in the Judge’s view, continued to pose a safety concern. In part, this was because that is when the incident involving Ms W took place. Furthermore, in Ms K’s parenting application, she had expressed concerns for L in his father’s unsupervised care as relating to overnight stays only.
[95] The Judge had regard to Ms Clough’s expert opinion that L needs meaningful contact with his father and, further, that requiring L’s daytime contact in the B home to be monitored was no longer required. However, due to Ms K’s lack of trust in Mr B, the Judge was concerned about the impact on Ms K, and by extension L, should the Court decide on entirely unsupervised contact. Of note, there were a number of behavioural concerns relating to L, including recent behavioural changes. These included distress, anxiety, aggressive behaviour, hypersensitivity to noise and touch, and regression to daytime wetting. The Judge could not determine the source of L’s deteriorating behaviour. Both parents agreed, however, that L should be assessed by a child psychiatrist.
[96] Against this background, the key conditions of the final parenting order made by the Judge were that:
(a)Ms K shall have the day-to-day care of L.
(b)Unless agreed otherwise, Mr B shall have unsupervised daytime contact with L at certain specified times.
(c)Mr B shall have overnight supervised contact on the weekend that he exercises daytime contact on the following terms:
(i)L’s paternal grandfather is to be continuously present during overnight contact.
(ii)Overnight contact shall take place at the home of L’s paternal grandfather.
(iii)In the event L becomes distressed, L’s paternal grandfather will facilitate a phone call between L and Ms K with the aim that Ms K will encourage L to enjoy his visit. If L does not settle, then L’s paternal grandfather shall arrange with Ms K for L to be returned to Ms K’s care.
(d)Unless the parties agree otherwise, no overnight contact shall occur until such time as L has been assessed by a child psychiatrist and the source of L’s increased anxiety and/or deteriorating behaviours are identified and, if required, a treatment plan made and agreed to by his parents.
What are the risks to L’s psychological safety in the B household?
[97] For the reasons outlined above, I am not satisfied that Mr B’s past behaviour meets the threshold for psychological abuse. Nevertheless, given that behaviour and the concerns that it gives rise to, it is necessary to carefully assess L’s ongoing psychological safety in the B household.
[98] Mr B’s level of insight into how his lifestyle or behaviours might affect L is obviously highly relevant in this context. Mr B was questioned about this at trial by Mr Hart. Mr B accepted that Ms K was never going to be comfortable with or agree to him having a polyamorous lifestyle around L. Further, given L’s strong relationship with his mother, L’s belief system would likely align with hers as he grew older. This could negatively impact on L’s relationship with his father, if Mr B were to openly live a polyamorous lifestyle around L.
[99] Mr B also accepted that if he continued his attempts to pursue polyamorous relationships around L, this would cause ongoing conflict in his relationship with Ms K, which would have a negative flow on impact for L. Mr B also accepted that L’s emotional state had worsened as the proceeding between his parents had progressed. He attributed this to other people’s (negative) views of his polyamorous lifestyle, and the conflict associated with that, rather than polyamory per se.
[100] Mr B also accepted that his time and energy was a finite resource and that it was important that he prioritised L’s needs over his own pursuit of polyamorous relationships (which he believed he did). He acknowledged that it was potentially harmful to introduce children to transitory relationships. Mr B claimed, however, that L had not been exposed to his polyamorous lifestyle “since this all came to a head” (which I take to mean since Ms W had come forward ).
[101] In my view, Mr B has demonstrated a reasonable degree of insight into the risks to L of being exposed to aspects of Mr B’s polyamorous lifestyle (including, in particular, the risk of increased adult conflict associated with the divergent lifestyles of Mr B and Ms K). Mr B also confirmed that he was prepared to abide by any condition that the Court imposed in order to address safety concerns, including a condition that there be no polyamorous partners around L. Further, if necessary, he was willing to “live in the closet” until L was 18, if that was required. In other words, Mr B would be willing to compartmentalise his life and restrict his polyamorous activities to the times when he did not have care of the children. I accept Mr Hart’s submission that that was a helpful concession and consistent with Ms Clough’s evidence that there was some insight shown by Mr and Mrs B.
[102] As with Mrs B, however, the Court must assess whether these are just hollow words, are reflect a real commitment to change.
[103] Many of the arguments advanced by Ms Crawshaw QC on behalf of Ms K mirrored those advanced by Ms Kearns QC on behalf of Mr M. I have addressed the key arguments above. Much of the analysis I have set out previously,in relation to V’s safety in the B household, applies equally to L. Many of the adverse findings made in this Court and the Family Court apply equally to both V and L. Similarly, some of the more favourable findings also apply equally. For example, it is my view that neither V nor L are at risk of harm from J or S.
[104] There are, however, material differences between V and L, and also between Mr B and Mrs B. These differences impact the overall safety assessment for L. First, when the children are in the B home, Mrs B is primarily responsible for V’s care and Mr B is primarily responsible for L’s care. The past behaviour of Mr and Mrs B is not identical. Although Mr B and Mrs B have both prioritised their own sexual lifestyle over the needs of their children on (limited) occasions, such behaviour has been more pronounced in the case of Mr B. For example, on 11 October 2019 it was Mr B who engaged in sexual activity with Ms W in the lounge of the family home, and Mr B who breached a Court ordered condition requiring him not to introduce L to any other partners. Although Mrs B was also present that day, her culpability is significantly less.
Mr and Mrs B appear to be equally responsible, however, for misleading Ms Clough the following day.
[105] Similarly, Mr B must bear responsibility for being disengaged and distracted by participating in a seven-hour long sexually explicit online chat when L (then aged two years and ten months) was in his care. It was Mr B’s primary responsibility to care for his son, not Mrs B’s.
[106] There are also significant differences between V and L. V is older, confident and articulate. She has several trusted adults she can confide in and has done so in the past (for example, in relation to Mrs B’s “contact care” training and therapy). V has a strong relationship with both parents and appears to be able to make her needs known and communicate any concerns. She is also engaged with a play therapist, which is a further protective mechanism. Although V suffered emotionally when she lost day-to-day contact with her mother due to the COVID lockdown, her emotional state improved significantly once the care arrangements reverted to the status quo of shared care. Her current situation is stable. While there is conflict between her parents it appears to be less pronounced than in the case of L.
[107] L is younger and correspondingly, of course, relatively less verbal, although I note that he has been described as “very vocal”, intelligent, mature and articulate for his age. He has had a different parenting arrangement to V, having been in the day-to-day care of his mother from a very young age. As a result, his primary attachment is to his mother. Ms K does not trust Mr B and the relationship between Mr B and Ms K is fraught. As the Judge noted, it is almost inevitable that these tensions impact on L, either directly or indirectly. In Ms Clough’s view, L is potentially caught in a loyalty bind, and appears to have been very aware of the tension between his parents. Against this background, L has recently exhibited several behaviours of concern, including expressing suicidal ideation. He is emotionally vulnerable and particularly susceptible to emotional harm arising out of the conflict between his parents.
[108] In Mr B’s favour, the Judge found (and I accept) that there had been no breaches of the interim parenting order in relation to L at the time of the Family Court hearing. Further, since then, there have also been no reported breaches of either the interim orders
(which continued until delivery of the Family Court decision) or the final parenting orders (as modified by Gordon J in response to Ms K’s stay application). There is no evidence to suggest that L has been exposed to inappropriate sexual activity or introduced to any sexual partners since the making of the interim order in July 2020. Indeed, there is no evidence of risky or concerning behaviour by Mr and Mrs B since the beginning of 2020, almost two and a half years ago.
[109] Given Mr B’s past conduct and attitudes, however, the degree of confidence the Court can have in his commitment to complying with court directions is somewhat less than that for Mrs B. Nevertheless, at least in terms of the risks to L’s psychological safety during the daytime, Mr B’s compliance with both the interim and final parenting orders over an extended period is a factor that carries considerable weight, as is the fact that Mr B’s past behaviours of concern are not extensive and are all now fairly aged.
[110] Due to the requirement that overnight visits be deferred until L had been assessed by a psychiatrist, Mr B’s compliance with the parenting orders during the evenings and at night-time remains untested. I agree with the Judge that the evening and night-time hours are the times of highest risk. It is a reasonable inference that it is during those periods that Mr B is most likely to engage in direct sexual activity. The sexual activity with Ms W, for example, took place at night after the children had gone to bed. It is this type of behaviour that carries the greatest risk of causing psychological harm, if L were to be accidentally exposed to it. During the daytime there is, of course, a risk that Mr B may be distracted by engagement in online sexual activity. The type of psychological harm associated with such activity, however, is towards the lower end of the spectrum. It is essentially the risk of “benign neglect” that may arise when a parent lacks appropriate child focus and is unduly distracted by their own pursuits for an extended period, whatever the nature of those pursuits may be.
[111] In conclusion, it is my view that the Judge was correct to conclude that the risks to L’s psychological safety differ between daytime and the evening or night-time. The risk of L suffering psychological harm in the B household during the daytime is, in my view, relatively low. The risk to L in the evening or night-time periods is somewhat more difficult to assess. Given, however, that the psychological wellbeing of a young child who is already emotionally fragile and exhibiting concerning behaviours is at
stake, it is appropriate to take a conservative approach. Taking all the factors I have outlined above into account, I assess the risk of psychological harm to L in the unsupervised care of Mr B during the evenings and overnight periods as being in the low to moderate range. The risk of L being psychologically harmed if overnight contact occurs at his grandfather’s home, with his grandfather present, is negligible.
Was the Judge correct to order unsupervised daytime contact and supervised overnight contact?
[112] L’s welfare and best interests in his particular circumstances is the first and paramount consideration.43 While L’s psychological safety is the key factor, a number of other matters are also relevant to the overall assessment of L’s welfare and best interests, including the s 5 principles.44
[113] L’s care, development, and upbringing should be primarily the responsibility of his parents45 and should be facilitated by ongoing consultation and cooperation between them.46 Mr B and Ms K are both responsible for building a constructive and cooperative parenting relationship. Mr B must work to regain Ms K’s trust. Ms K, on the other hand, must recognise that it is in L’s best interests to have a good relationship with his father, and that his parents both need to work on their relationship to facilitate this. For now, however, Ms K does not trust Mr B, given his past conduct, and is deeply concerned for L’s wellbeing in his father’s care. As the Judge noted, an order for entirely unsupervised contact is therefore likely to cause distress to Ms K, and by extension L. As Mr Hart noted, one of the key risk factors for L is adult conflict.
[114] On the other hand, Ms Clough observed, it is important for L to have meaningful contact with his father. Mr Hart has also previously reported that L wanted more time with his father. The final order made by Judge King achieves such an outcome. It gives L about six extra hours per month of daytime contact with his father. L’s degree of contact will increase further once it is possible for him to stay with Mr B overnight, at
43 Care of Children Act 2004, s 4(1).
44 Care of Children Act 2004.
45 Care of Children Act 2004, s 5(b).
46 Care of Children Act 2004, s 5(c).
his paternal grandfather’s home. Allowing overnight visits at the home of L’s paternal grandfather will help strengthen L’s ties to his extended paternal family.47
[115] Another important consideration is continuity in L’s care, development, and upbringing.48 L is said to be somewhat resistant to change. Hence, while it is important to continue to strengthen his relationship with his father, I accept Ms Crawshaw’s submission that any final order must reflect that Ms K has always been L’s primary caregiver. Preserving Ms K’s role as the primary caregiver recognises that.
[116] Given that the risk to L’s psychological safety in the B household during the daytime is low, I am satisfied that the Judge’s order for unsupervised contact during daytime hours is in L’s best interests and is consistent with both his safety and the other s 5 principles.
[117] The issue of overnight contact, and whether or not it should be supervised, is more difficult. I have assessed the risk of psychological harm to L during the evening and overnight periods, if such contact is entirely unsupervised, as being in the low to moderate range. Further, as Ms Crawshaw emphasised, L is emotionally fragile and has exhibited escalating behaviours of concern, of unknown cause. The difficult relationship between Mr B and Ms K, the need for Mr B to work on regaining Ms K’s trust, and the high degree of distress that would be caused for Ms K by allowing Mr B to have unsupervised overnight contact with L (which is likely to flow on to L) are all relevant factors.
[118] Overall, taking these various matters into account, it is my view that the Judge was right to take a cautious approach to overnight contact. Allowing overnight contact will strengthen the bonds between L and his father (and his extended paternal family), but it must be done in a way that minimises the risk of psychological harm to L. Having overnight contact take place under the watchful eye of L’s paternal grandfather will best achieve that goal.
47 Care of Children Act 2004, s 5(e).
48 Care of Children Act 2004, s 5(d).
Is the condition that L not be exposed to nor educated in his father’s polyamorous lifestyle appropriate?
[119] The final parenting order for L made by Judge King includes the following conditions:
[L] shall not be exposed to nor educated in [Mr B] and [Mrs B’s] polyamorous lifestyle. This includes:
1. No direct or indirect exposure to sexual language or sexual activity.
2.Not being introduced, nor exposed, to any sexual partner of, or person, who is in a sexual relationship with, either [Mrs B] or [Mr B] or both.
3.No access to nor use of any device that does not have an operating child lock or similar application installed to prevent access to age inappropriate content.
4.[Mr B] and [Mrs B] not viewing any material of a sexual nature, whether it be in print, television or electronic.
[120] Mr B appeals these conditions (other than condition 1) on the basis that they are not based on a factual risk assessment and are not within the ambit of s 48 of the Act, further, the conditions are said not to provide certainty or enforceability.
[121] I reject the submission that the conditions are outside of the scope of s 48. Section 48(4) expressly provides that a parenting order may be made subject to any terms or conditions the court considers appropriate.49 The above conditions are logically linked to the risks identified by the Judge, and by this Court on appeal. I accept, however, that, in the interests of certainty and enforceability, some fine tuning of these conditions is appropriate. In particular, the condition commences with the very general direction that “L shall not be exposed to nor educated in [Mr B] and [Mrs B’s] polyamorous lifestyle.” It then lists a number of non-exclusive matters that are said to be included in that general prohibition.
[122] Mr and Mrs B are, of course, entitled to engage in a polyamorous lifestyle with other consenting adults. As noted above, although polyamory is still a relatively unusual family configuration, there is no evidence before the Court that being raised by a parent and stepparent who are living in a stable and committed polyamorous
49 Care of Children Act 2004.
relationship with others is inherently harmful to the emotional wellbeing of children. The concerns that arise in this case are not with polyamory generally, but with the particular manner in which Mr and Mrs B have recently chosen to conduct their sexual lives. On (fairly limited) occasions this has involved prioritising their own sexual activities over their children’s emotional wellbeing and needs.
[123] V is obviously already aware that her mother and Mr B live a polyamorous lifestyle, as are J and S. It is therefore unlikely that it will be possible to “shield” L from this knowledge until he is 18 (even if it were appropriate to do so, which I doubt). At some stage, when L is older, his father will need to be in a position to answer any questions that L may have regarding polyamory, in a careful and age-appropriate way. Mr B should not be precluded from having that discussion by uncertainty over the precise terms of a court order. The conditions need to be directed to the specific types of behaviour that are harmful, not to polyamory in a very generalised sense.
[124] In addition, I note that condition 4 above appears to be expressed unduly broadly, and needs to be more closely tailored to the particular risks to L (and V) in the B household. I accordingly propose to allow this aspect of the appeal in part, by “fine-tuning” these conditions to address these issues. It is obviously appropriate that the amended conditions apply equally to both V and L.
Are the conditions of the parenting order requiring L’s parents to obtain a psychiatric diagnosis and agree a treatment plan before overnight contact commences appropriate?
[125]Mr B seeks the removal of two related conditions of the parenting order:
(a)that L’s parents engage with a psychiatrist and obtain a diagnosis for L’s sensory and behavioural issues;50 and
(b)that Mr B’s overnight contact with L shall not occur until L has undergone a psychiatric assessment, the source of L’s anxiety and deteriorating behaviours are identified, and, if required, a treatment plan is agreed to by his parents.51
50 KV v CB [2021] NZFC 7015 at [161(e)(iii)].
51 KV v CB [2021] NZFC 7015 at [161(e)(vi)].
[126] Ms Crawshaw opposed removal of those conditions. She noted Ms K’s evidence that there has been no delay in pursuing a treatment plan for L, and that Ms K has taken steps to have L referred to both a psychiatrist, and a paediatrician.
[127] Mr B acknowledged that at the Family Court hearing both parties agreed to engage with a child psychiatrist about L’s behavioural issues. The parties have since engaged with Dr Vernon Reynolds. Dr Reynolds has advised, however, that a young child such as L would normally be initially assessed by the team at the Child Health Centre associated with the local hospital. That team would include paediatricians, and also possibly psychological and occupational therapy support. Dr Reynolds is of the view that this is the most appropriate initial assessment avenue for L. He has also referred Ms K to other resources and avenues of support around behavioural approaches to helping L manage emotions and behaviours. (These resources, some of which are online, are also presumably available to Mr B.) In a letter dated 22 September 2021 Dr Reynolds stated that:
Regarding the involvement of a Child Psychiatrist, in my opinion, this is something that would be considered following the thorough assessment and support of the Child Health Centre and I would be happy to be involved at that point. As far as involvement of psychologists and therapists, the primary value of this would be around supporting yourself or [L’s] father at this stage. There may be a role for a Child Psychotherapist once the Child Health Centre assessments have occurred.
[128] In her updating affidavit of 22 October 2021, Ms K advised that L was currently awaiting an appointment with a paediatrician for an assessment, which would include assessments for autism and attention deficit hyperactivity disorder. Given that seven months have elapsed since then, I assume that those assessments have now taken place. L is also engaged with an occupational therapist to progress treatment for sensory issues.
[129] Against this background, Mr B is concerned that the requirement for a psychiatric diagnosis and treatment plan before overnight visits can commence is uncertain and unenforceable, as no such diagnosis and treatment plan may be available. On the contrary, the psychiatrist who has been consulted has recommended a different (and presumably more appropriate) assessment and treatment pathway. It is therefore possible that the commencement of L’s overnight visits with his father will be delayed indefinitely.
[130] In my view there is considerable force in Mr B’s concerns. Matters have moved on since the Family Court hearing and updating evidence has been filed. It is obviously possible, given Dr Vernon’s suggested treatment pathway, that L may never receive a formal diagnosis from a psychiatrist. Indeed, it is possible that the precise cause of L’s deteriorating behaviour may never be identified. Nevertheless, it will hopefully improve with multi-disciplinary treatment, support, a reduction of adult conflict, and the passage of time.
[131] Further delay in implementing the final parenting order (including overnight contact) is not in L’s interests. Rather, it is in the interests of both L and his parents that certainty and finality be achieved in his care arrangements. As Mr Hart noted, his parents have been “at war” for an extended period and ongoing adult conflict in L’s life is a key concern. It is this conflict, rather than anything that L may see or hear in his father’s home, that is probably the greatest risk to L’s ongoing emotional wellbeing. Certainty of care arrangements will, hopefully, reduce the scope for future conflict between L’s parents.
[132] L has now been referred to appropriate health services who will be able to support him, and his parents, as he progresses to having overnight contact with his father, at his paternal grandfather’s home. Both his parents have access to resources to guide them in their ongoing support of L. The current requirement that a treatment plan be “agreed” by L’s parents before overnight visits can commence has the potential to cause ongoing delays, conflict and uncertainty, contrary to L’s best interests. The requirement for Mr B and Ms K to reach agreement on a treatment plan prior to overnight contact taking place incentivises Ms K to stonewall or resist reaching agreement. I am not suggesting that she would do so deliberately, but given her anxiety and her concerns, negotiating and finalising a “treatment plan” with Mr B, as a prerequisite to the commencement of overnight visits, could prove very challenging.
[133] I have found that L has not previously been psychologically abused in his father’s care. I have assessed the risks to his psychological safety in his father’s unsupervised daytime care as low, and the risks to his safety in supervised overnight visits to be negligible. Given those findings, and the other matters referred to above, it is my view that it is in L’s best interests that the transition to overnight visits with his father now
proceed, with appropriate support. I therefore propose to allow this aspect of the appeal by removing the above two conditions and replacing them with conditions to support such a process.
Is the condition requiring that Mrs B not be present at changeover for L appropriate?
[134] The parenting order provides that Mr B will ensure that Mrs B is not present at changeover, unless expressly agreed to by Ms K.
[135] Mr B acknowledges that it is important that L not be exposed to any tensions between his parents at changeovers, and that Mrs B’s presence may be a source of tension with Ms K. However, if the changeover does not involve Ms K, he submitted, then the prohibition on Mrs B being present is not required. This could occur, for example, if the changeover is at day care or school or at another family member’s home. Mr B therefore proposes that the condition be changed to: “Mrs B not to be present at changeovers where Ms K is also present.”
[136] Ms K submitted that the order needs to be well-defined and leave no opportunity for misinterpretation. She submitted that the proposed amendment could give rise to a risk that Mrs B may be present at changeover when Ms K is also present.
[137] The proposed amendment would meet the concern that Ms K and Mrs B not come into contact, provided that there can be certainty as to when Ms K will be present at changeovers. To avoid misunderstandings, the default assumption, in my view, should be that Ms K will be present at changeover, unless she confirms in writing that she will not be. If she does so, however, there can be no objection to Mrs B’s presence at changeover. I propose to amend the relevant condition accordingly.
Is the condition requiring that L be transported in a five-point car seat harness appropriate?
[138] Mr B submitted that no evidence was provided to the Court as to why specifically this type of car seat (being a five-point harness) is required until L is 148 cm tall. Mr B proposes that this condition be amended to state that L be transported in an
approved child restraint as required by law. In my view that is an appropriate amendment.
Did the Judge err in making final parenting orders for L, rather than further interim ones?
[139] Finally, Mr B challenges the Judge’s decision to make a final parenting order in respect of L, rather than an interim one.
[140] On balance, the Judge was satisfied that a final order ought to be made. She stated that a final order approach recognises the principles of continuity in L’s care, development and upbringing; the need for L’s parents to consult and cooperate with each other; and the need to preserve and strengthen L’s relationship with his family group.52 Further, a final order would recognise L’s place with his mother, to whom he is primarily attached, as well as preserving and strengthening L’s place within Mr and Mrs B’s blended family. The Judge stated, however, that in the event L is assessed by a child psychiatrist and a good treatment plan implemented, then it may be appropriate for an application for leave to be filed within two years to review the terms of Mr B’s contact. Mr B expressed concern, however, that this would just lead to further delays.
[141] In my view the Judge did not err in making a final parenting order, rather than an interim order. This matter has been before the court since 2018 and was heard in March 2021, after lengthy delays. In accordance with this judgment, overnight contact can now proceed. If that is successful and no issues of concern arise then it may be appropriate, as the Judge noted, for Mr B to file an application for leave within two years to review the terms of his contact. That, however, is a matter for the future.
Summary and conclusion
[142] In conclusion, I have found that the Judge erred in finding that V and L were psychologically abused in the B household. Nevertheless, the past conduct of Mr and Mrs B does raise safety concerns. Mr and Mrs B have not always conducted themselves in an appropriately child focused way. At times they have failed to prioritise V and L’s emotional welfare and safety over their own sexual lifestyle. If their previous patterns
52 Care of Children Act 2004, s 5(c), (d) and (e).
of behaviour were to continue, then there is a clear risk that V and/or L would suffer psychological harm in the B household.
[143] I have found, however, that the Judge was correct to find that V will be psychologically safe in her mother’s care going forwards. Mrs B’s evidence was that from at least 1 January 2020 “we have operated on a purely monogamous basis around any and all of our children”. Mrs B claims to have taken “decisive steps” to ensure that there is no possibility of accidentally exposing the children to sexual activity in the B home. The extended period of compliance with both the interim parenting orders and, subsequently, the final orders, supports the conclusion that Mr and Mrs B have indeed modified their behaviour as claimed. This provides considerable assurance regarding V’s future emotional safety in the B household. There is no evidence that Mrs B had engaged in any conduct since late 2019 that has prioritised her own sexual lifestyle over V’s emotional wellbeing. Further, the previous conduct of concern was relatively infrequent and only included one (proven) incident (the 11 October incident) where V and L were put at serious risk of being exposed to sexual activity in the family home.
[144] The remaining s 5 principles favour a continuation of shared care, and V herself wishes to spend equal time with her mother and father going forwards. Any disruption to that would pose “quite significant” risks to V’s emotional wellbeing, based on Ms Clough’s expert evidence. Overall, therefore, the Judge was correct to find that shared care would be in V’s best interests. I accept Ms Clough’s evidence that the risk posed to V’s emotional welfare by removing her from the current week about care arrangement is significantly greater than any risk to her emotional welfare arising out of possible accidental exposure to her mother’s lifestyle. Mr M’s appeal accordingly fails.
[145] As for L, much of the analysis I have set out in relation to V’s safety in the B household applies equally to L. Many of the adverse findings made in this Court and the Family Court apply equally to both V and L. Similarly, some of the more favourable findings also apply equally. For example, it is my view that neither V nor L are at risk of sexual or psychological harm from J or S.
[146] There are, however, material differences between V and L, and also between Mr B and Mrs B. These differences impact the overall safety assessment for L.
However, the fact that there have been no breaches of the interim or final parenting orders in relation to L supports the Judge’s conclusion that the risks to L’s safety in his father’s unsupervised care during the daytime are low.
[147] Due to the requirement that overnight visits be deferred until L has been assessed by a psychiatrist, Mr B’s compliance with the parenting orders during the evenings and at night-time remains untested. Those are the times of highest risk. I have assessed the risk of psychological harm to L in the unsupervised care of Mr B during the evenings and overnight periods as being in the low to moderate range. The risk of L being psychologically harmed if overnight contact occurs at his grandfather’s home, with his grandfather present (as directed by the Judge) is negligible.
[148] The remaining s 5 principles support the conclusion that it is in L’s best interests and welfare for him to have increased contact with his father and extended paternal family. The Judge’s orders for unsupervised daytime contact and supervised overnight contact at his paternal grandfather’s home appropriately balance safety with L’s interest in strengthening his paternal relationships (while still preserving his mother’s role as his primary caregiver). I have found, however, that some (relatively minor) amendments to the final parenting order is appropriate.
[149] Finally, I have concluded that the Judge was correct to make a final parenting order rather than a further interim order.
Result
[150]Ms K’s appeal is dismissed.
[151]Mr B’s appeal is allowed in part. In particular:
(a)The finding that L was psychologically abused in his father’s care is set aside.
(b)The order set out at [161(d)(iii)] of the Family Court judgment is amended to state as follows:
Mr B shall ensure that Mrs B is not present at changeovers, unless Ms K has confirmed in writing that she will not be
attending changeover. Ms K is to respond promptly to any inquiry from Mr B as to whether she will be attending changeover.
(c)The order set out at [161(d)(iv)] of the Family Court judgment is amended to state as follows:
At all times, [Mr B’s] contact shall be subject to the following conditions:
…
[L] will be protected from direct or indirect exposure, or the risk of direct or indirect exposure, to aspects of [Mr B] and [Mrs B’s] sexual lifestyle that have the potential to cause him psychological harm. Specifically:
1.No direct or indirect exposure to sexual language or sexual activity.
2.Not being introduced, nor exposed, to any sexual partner of, or person, who is in a sexual relationship with, either [Mrs B] or [Mr B] or both.
3.No access to nor use of any device that does not have an operating child lock or similar application installed to prevent access to age- inappropriate content.
4.[Mr B] and [Mrs B] not viewing any material of a sexual nature, whether it be in print, television or electronic, unless it is between 10.00 pm and
7.00 am, [L] has gone to bed, and [Mr B] and/or [Mrs B] are in their own bedroom.
(d)The orders set out at [161(e)(iii)] and [161(e)(vi)] of the Family Court judgment are deleted. The following order is substituted:
[L’s] overnight contact with [Mr B] will commence on the weekend of 25–26 June 2022. [Ms K] and/or [Mr B] are to seek advice from the Child Health Team (or the lead paediatrician, psychologist or psychiatrist currently responsible for [L’s] care) as to how to appropriately support [L] as he transitions to overnight contact, and are to use their best endeavours to follow any such advice (provided such advice is consistent with overnight contact occurring, on the basis set out in these parenting orders).
(e)The order set out at [161(e)(iv)] is deleted and the following order substituted:
[L] be transported in an approved child restraint, as required by law.
(f)The remainder of the final parenting orders relating to L are confirmed.
[152]Mr M’s appeal is dismissed. In relation to V, however:
(a)The finding that V was psychologically abused in her mother’s care is set aside.
(b)The order set out at [160(a)] of the Family Court Judgment is amended to mirror the order made in relation to L, as set out at [148(c)] above.53
[153] All three appeals have been unsuccessful, or largely unsuccessful, and the key findings and orders of the Family Court decision have been upheld. If costs cannot be agreed between counsel, any costs memoranda from a party who wishes to seek an award of costs are to be filed by 25 June 2022. Any memoranda in response are to be filed by 16 July 2022.
Katz J
53 This requires the first reference to [Mr B] to be changed to [Mrs B], and the references to [L] to be changed to [V].
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