Roberts v Lister
[2021] NZHC 2764
•15 October 2021
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 2021-404-1781
[2021] NZHC 2764
IN THE MATTER OF
AND
An Originating Application under Part 19 of the High Court Rules 2016 IN THE MATTER OF
AND
A without notice application for appointment as litigation guardian under Rule 4.35 of the High Court Rules 2016
IN THE MATTER OF
An application by PRICE Applicant
Continued
Hearing: 12 October 2021 (by VMR) Appearances:
Lister in person Roberts in person
S Abdale for the applicant in CIV 2021-404-1783 and the appellant in CIV 2021-404-1784
B P C Carter counsel assisting the CourtJudgment:
15 October 2021
JUDGMENT OF CAMPBELL J
This judgment was delivered by me on 15 October 2021 at 11:30 am pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar
ROBERTS V LISTER [2021] NZHC 2764 [15 October 2021]
IN RE JOHN LISTER ROBERTS
A minor
CIV 2021-404-1783
UNDER Section 143(2) of the Care of Children Act 2004 and s 124 of the District Courts Act 2016 BETWEEN
LISTER
Appellant
AND
ROBERTS
Respondent
CIV 2021-404-1784
UNDER Section 143(2) of the Care of Children Act 2004 and s 124 of the District Courts Act 2016 IN THE MATTER OF
An appeal against a judgment of the Family Court at Auckland
BETWEEN
JOHN LISTER ROBERTS by PRICE his
litigation guardian Appellant
AND
LISTER
First Respondent
ROBERTS
Second Respondent
[1] These related proceedings concern two appeals from a judgment of Judge S J Fleming in the Family Court at Auckland dated 19 August 2021.1 The Judge made orders under the Care of Children Act 2004 for gradually increasing contact between Mr Roberts and his son, John, who is aged 12. There are two appeals from Judge Fleming’s decision. One is brought by Ms Lister, John’s mother. The other is brought by John by his litigation guardian Dr Price.2
[2]This judgment deals with two applications:
(a)An application by Mr Roberts (in CIV 2021-404-1781) to review my order appointing Dr Price as litigation guardian for John.
(b)An application by John (in CIV 2021-404-1784) for a stay of the Family Court’s orders pending determination of his appeal.
[3] A separate judgment will deal with an application by John’s maternal grandparents, Ms Hartley and Mr Lister, for leave to intervene in the two appeals.
Background
[4] John and his parents were born in the United States. They moved to New Zealand in October 2018. John has no other family connections in New Zealand.
[5] Ms Lister is in her late forties. She is legally trained and has considerable legal expertise. Mr Roberts is in his early seventies. He practised law for many years in the United States. He is now retired. He was diagnosed with cancer in 2010. He underwent treatment and his cancer is in remission.
[6] Mr Roberts and Ms Lister commenced their relationship in 2005 and were married in 2007. They separated in late 2019. During their relationship there were lengthy periods when John was effectively in the sole care of Ms Lister because he was living with her overseas while Mr Roberts remained working in the United States, though he would visit and stay with them from time to time.
1 Roberts v Lister [2021] NZFC 6541.
2 I have anonymised the names of the parties.
[7] Following separation there was no contact between John and Mr Roberts for some months, except for a brief period over Christmas 2019. Mr Roberts applied to the Family Court in February 2020.
[8] Ms Lister and John live on Waiheke Island. Mr Roberts lives in an apartment in central Auckland.
Family Court judgment
[9] The Judge said there were two incidents in October 2019 that led to the separation and to difficulties with John having contact with his father. The first was on 1 or 2 October. There was a dispute between John and his father. John complained to his mother. The Judge set out the differing accounts that were given to her of that incident. In summary:
(a)According to Ms Lister, John told her that Mr Roberts had dragged him down a staircase and thrown him forcibly into a room.
(b)In July 2020, John told Mr Carter (lawyer for the child in the Family Court) he had been kicked by his father and pushed down the stairs.
(c)Mr Roberts said John had a tantrum when asked to complete a task and threw himself on the floor. Mr Roberts said he then tapped John with his foot, picked him up by the armpits and directed him to the stairs to go to his bedroom.
[10] The second incident was on 8 October. Mr Roberts and John were on a ferry. Again, the accounts differed:
(a)According to Ms Lister, John told her that he did not want to put his violin on the luggage rack and his father had taken his violin and tried to shove it between John’s legs to the floor. John told her his father threatened to slap him if he did not stop resisting. John told her his father was kicking him and a woman nearby slipped him a note saying
“you should tell someone if anyone hurts you” and provided a telephone number for victim support.
(b)In July 2020, John told Mr Carter his father had grabbed his hands and would not let go when he was on the ferry. He said a woman passed him a note, he was very scared and thought his father might seriously hurt him.
(c)Mr Roberts said he asked John to move his belongings including his violin so that people could sit on the seats. John refused so Mr Roberts removed the items and tried to put them on the seat between the two. John started pushing and hitting him. In response Mr Roberts grabbed his wrists to prevent John from continuing to hit him. Mr Roberts said one woman on the ferry asked whether assistance was required when John was punching him, and another asked whether everything was okay.
[11] The Judge said things must have settled down quite quickly after these two incidents because a few days later John and Mr Roberts went on a planned three-day camping trip that Ms Lister did not attend.
[12] The Judge observed the focus had been on the two October events for almost two years. Given the passage of time she said it was particularly difficult to make a finding or to be certain of what occurred.3 She did not consider either incident, “whichever version is true”, represented future risk to John, although there were better parenting methods to ensure compliance with reasonable directions than those adopted by Mr Roberts.4 She was satisfied Mr Roberts was angry and lost a degree of self- control, but said that “even if the incidents were as relayed by John, they are appropriately described as moderately excessive force used to achieve compliance with a direction”.5 She found, however, there were elements of psychological abuse in the interactions and John was frightened.6
3 At [22] and [28].
4 At [28].
5 At [28].
6 At [28].
[13]The Judge said that based on all the evidence she was satisfied:7
Mr Roberts’ methods of discipline have involved physical contact which is less than appropriate and has resulted in John being fearful of his father.
[14] Judge Fleming recorded that John and Mr Roberts eventually started supervised contact. This went very well and led to unsupervised contact in 2021. The unsupervised contact was negotiated between John and Mr Roberts with the help of a psychologist at a parenting programme. Unsupervised contact appeared to be progressing well.8 On 24 May 2021, Mr Carter reported that John was concerned about his father pressuring him to visit his apartment and said should Mr Roberts continue to pressure him to go to the apartment he would want contact to be supervised again. On receiving that report, Ms Lister proposed contact should be supervised again. There was no further contact, supervised or unsupervised, up until the hearing on 6 and 7 July 2021.9
[15] The Judge said that for John to re-establish normal contact with his father, he needed the wholehearted support and commitment of his parents. She said that Ms Lister had supported and perhaps unknowingly encouraged John’s withdrawal from his father.10
[16] The Judge recorded that John was very clear with her that contact should be supervised.11 The Judge said it was imperative John not lose his relationship with his father.12
[17] The Judge’s view was that John believed he could dictate what he would and would not do when with his father “and he has received a degree of support from his mother in taking that attitude. … She believes Mr Roberts does not parent appropriately, but this belief, albeit possibly unconscious, supports John’s defiance.”13
7 At [29].
8 At [30].
9 At [31] and [32].
10 At [34].
11 At [35]. See also [33].
12 At [35].
13 At [36].
[18] The Judge recognised John was entitled to have his views taken into account, but said his parents had to make some decisions for him. John needed to be freed from responsibility for making decisions about contact with his father.14
[19] The Judge turned to consider whether contact between John and his father should be supervised or unsupervised. The Judge recorded everyone agreed to unsupervised contact except John.15 She found the two October 2019 incidents were not as serious as Ms Lister had described. The Judge noted Mr Roberts had completed programmes and embraced a therapeutic and lengthy approach to the reinstatement of contact and there had been no incidents of concern since contact resumed, even when unsupervised.16
[20] The Judge found that although John told Mr Carter he was frightened his father would be irrationally angry, she was satisfied “this does not present a real risk to John. It is John’s apprehension and it needs to be addressed.”17 The Judge noted John had been content with unsupervised contact which commenced in April 2021. No concerns had been raised until John took exception to going to his father’s apartment despite him agreeing to do so after telephoning his mother.18 The Judge concluded:
[47] I am quite satisfied it is in his best interests for there to be unsupervised contact as agreed by his parents.
[21] The Judge then referred to the applicable principles under the Care of Children Act 2004. In so doing she said:
(a)In terms of s 5(a) (a child’s safety must be protected, in particular from all forms of violence), she was satisfied John was safe in the unsupervised care of Mr Roberts.19 Ms Lister had exposed John inappropriately to adult concerns and in particular had exposed him to her views about Mr Roberts and Ms Hartley (John’s grandmother). She seemed to lack insight into the unconscious messages she shared with
14 At [37] and [38].
15 At [43].
16 At [44].
17 At [45].
18 At [46].
19 At [50].
John, but there was no concern (in terms of safety) raised about John remaining in her primary care.20
(b)In terms of s 5(b) (a child’s care and development should be primarily the responsibility of his or her parents), there was a risk Mr Roberts would continue to be marginalised in decision making if John was permitted to continue to determine what contact he had with his father.21
(c)In terms of s 5(d) (a child should have continuity in his or her care, development and upbringing), Mr Roberts’ importance in the life of John had been marginalised and this needed to be addressed to ensure there was continuity in contact. Both parents needed to accept responsibility for this. The Judge did not accept Mr Roberts’ position that Ms Lister was entirely to blame for the difficulties in his relationship with John. It was incumbent on Mr Roberts to learn better parenting techniques. She noted again he had attended a parenting course.22
(d)The Judge regarded the principle in s 5(e) (a child should continue to have a relationship with both his or her parents and the child’s relationship with his or her family group, whānau, hapū or iwi should be preserved and strengthened) as particularly relevant in this case. Her impression was John had not been encouraged by Ms Lister to develop his relationship with his father “and at the slightest complaint is able to dictate to his mother what contact will occur, which she supports”.23 The Judge expected that as John’s relationship with his father strengthened, Mr Roberts would also be able to facilitate John’s relationship with his maternal grandparents, which had been lost.24 There was a further imperative: although Mr Roberts’ cancer was in remission, there was no guarantee as to how long that would remain so.
20 At [51] and [55].
21 At [56].
22 At [58].
23 At [59].
24 At [60].
[22] The Judge concluded Mr Roberts had shown insight by attending a parenting programme and following a therapeutic approach in resuming contact. Ms Lister had supported that therapeutic intervention. It was in the best interests of John for orders to be made so John was clear about what contact arrangements were in place and that he (and his parents) needed to comply with the orders.25 The Judge ordered a gradual approach to increasing contact with Mr Roberts:
(a)A day on Saturday for four weeks. There was no prohibition on Mr Roberts taking John to his apartment (and it would be preferable that he did).
(b)For the next eight weeks, contact was to move to overnight from Saturday until Sunday one week and in the alternate week, day only (Saturday or Sunday).
(c)For the next four weekends, contact to increase on the weekend John was staying overnight with his father from Friday after school until Sunday evening, and in the alternate week, day only (Saturday or Sunday).
(d)Contact would then move to every second weekend from Friday after school to Monday morning with no contact in the alternate weekend.
(e)Where there was a public holiday on a contact weekend, contact would extend to include that public holiday.
(f)Over school holidays commencing Christmas 2021 John’s care was to be shared by agreement.
25 At [64].
Events since Family Court judgment
[23] Judge Fleming delivered her decision on 19 August 2021. At that time Auckland had recently been put into a COVID-19 alert level 4 lockdown. The parties agreed to suspend commencement of the orders until Auckland moved to alert level 3.
[24] Dr Price applied to be John’s litigation guardian for the purpose of bringing an appeal against the Family Court judgment. I granted that application on 17 September 2021. Meanwhile, John and Ms Lister filed their respective appeals on 16 September 2021. John also applied for a stay of enforcement of the Family Court orders until further court order.
[25] Auckland moved to alert level 3 on 21 September 2021. Mr Roberts did not agree to any further suspension of the orders. Therefore, absent a stay, the orders were to begin to have effect from Saturday 25 September 2021. John’s application for a stay was scheduled to be heard on 12 October 2021. Pending that hearing, John sought an interim stay of the first part of the Family Court orders (namely, those providing for John to have unsupervised contact with his father for a day on four consecutive Saturdays).
[26] Gault J, in a judgment delivered 24 September 2021, declined to grant an interim stay. He recognised, however, that COVID-19 alert level 3 restrictions limited the indoor options for contact. He therefore directed that, while COVID-19 alert level 3 restrictions remained in place in the Auckland region, contact on Saturdays was to occur only on Waiheke Island for approximately three hours.
[27] Alert level 3 restrictions have remained in place in the Auckland region since Gault J’s judgment. Mr Roberts and John have had three unsupervised contacts on Waiheke Island over the last three Saturdays.
Application to review appointment of Dr Price as litigation guardian
Procedural background
[28] On 15 September 2021, Dr Price filed an originating application under r 4.35 of the High Court Rules 2016 to be appointed John’s litigation guardian. Under r 4.35
the court may appoint a litigation guardian for a minor if satisfied that the litigation guardian:
(a)Is able fairly and competently to conduct proceedings on behalf of the minor; and
(b)Does not have any interests adverse to those of the minor; and
(c)Consents to being a litigation guardian.
[29] Dr Price filed an affidavit in support of her application. She deposed that she is an Associate Professor at Stanford University. She said she had known John all his life, had known Ms Lister for 30 years and had known Mr Roberts for 16 years. She described John as an extremely intelligent and emotionally mature child. She said she had spoken with him and he had made it clear he wanted to appeal the Family Court decision. She consented to being his litigation guardian and deposed that she had no interests adverse to those of John.
[30] Under r 4.36, an application under r 4.35 may be made without notice. However, the application must (unless the court otherwise orders) be served on the minor’s parents: r 4.36(2). In accordance with r 4.36, Dr Price’s application was styled as an application without notice but was served on Ms Lister and Mr Roberts.
[31] Dr Price’s application was accompanied by a memorandum of counsel from Ms Abdale. Ms Abdale said the application was urgent, as the period for filing an appeal was about to expire. On 17 September 2021, I granted the application on the papers.
[32] On 20 September 2021, Mr Roberts filed a notice of opposition to Dr Price’s application. By minute dated 21 September 2021, Gault J effectively treated the opposition as an application under r 7.49 to review an order made without notice. That is the basis upon which the matter came before me.26 In the same minute, Gault J
26 Rule 7.49 is not one of the rules governing originating applications: r 19.10. No party took this point.
appointed Mr Carter (who had been lawyer for the child in the Family Court) as counsel to assist the Court.
Mr Roberts’ grounds of review
[33] Mr Roberts’ grounds for reviewing my order appointing Dr Price as litigation guardian were, in summary:
(a)John already had Mr Carter representing him in the Family Court.
(b)Dr Price, being a resident of California, could not ably and competently conduct proceedings on behalf of John.
(c)Dr Price’s affidavits contained significant falsehoods (as to the closeness of her relationship with John and her ability to observe Mr Roberts’ parenting of John).
(d)Dr Price had a conflict of interest as she had been one of Ms Lister’s best friends since they were college roommates. Dr Price would be pursuing Ms Lister’s interests rather than John’s interests.
[34] Mr Roberts made an affidavit in support. Ms Lister made an affidavit in response. They differed as to the closeness of Dr Price’s relationship with John.
[35] Mr Roberts requested the opportunity to cross-examine Dr Price and Ms Lister on their affidavits. I declined that request. Cross-examination of deponents is allowed only in special circumstances: r 7.28. I did not see any special circumstances here. The review application was not going to determine substantive rights. The factual disputes between the deponents appeared to be of marginal relevance (at best) to the issues on the review application.
Decision
[36] A review under r 7.49 means I am considering afresh whether to appoint Dr Price as litigation guardian. Rule 4.35 governs whether Dr Price should be appointed. I have set out, at [28] above, the matters of which I need to be satisfied before making
such an appointment. There is no dispute Dr Price consents to be John’s litigation guardian. On the material before me, the issues under r 4.35 are:
(a)Is Dr Price able fairly and competently to conduct proceedings on behalf of John?
(b)Does Dr Price have interests adverse to those of John?
[37] On the first point, I do not regard Dr Price’s residence in California to be problematic. She can easily communicate with both John and counsel. This is evident from the material that has already been filed on Dr Price’s behalf on John’s appeal. I regard Dr Price’s relationship with John (even on Mr Roberts’ account of that relationship) as being such that she is able to obtain his views. Affidavits she has made since her appointment evidence the communication that is happening between her and John. I am satisfied Dr Price is able fairly and competently to conduct proceedings on John’s behalf.
[38] As to the second point, Mr Roberts submitted Dr Price’s involvement was arranged and driven by Ms Lister. He said Dr Price would act in Ms Lister’s interests, not John’s. I can understand why Mr Roberts has that concern, but it is not one that I share. I accept Ms Abdale’s submission that Dr Price is putting John’s views before the Court, is acting in his interests (not Ms Lister’s) and has no interests adverse to John’s. This is evident from the material that was put before me on these three applications. The material filed on behalf of Dr Price is very different in content and tone from that filed by Ms Lister.
[39] For these reasons, I decline Mr Roberts’ application to review my decision appointing Dr Price as John’s litigation guardian.
Application by John for stay
The application
[40] Dr Price, on behalf of John, applied for a stay of enforcement of Judge Fleming’s orders. The application was supported by affidavits of Ms Lister and Dr Renate Marquis-Nicholson (John’s medical practitioner).
[41] Dr Marquis-Nicholson deposed she had seen John shortly before the Family Court issued its judgment. She said John reported he was suffering from insomnia and anxiety. John told her this was because he was (at that time) waiting for a court decision on the initiation of unsupervised overnight contact. John said he was fearful his father would physically injure him during an unsupervised overnight visit. Dr Marquis-Nicholson expressed the opinion John’s physical and mental health had been adversely affected by the prospect of unsupervised overnight contact. Her view was that John’s health and wellbeing would be best supported by a stay on the proposed unsupervised overnight contact.
[42] Ms Lister deposed she had two concerns for John if the Family Court orders were not stayed. The first was a concern for John’s safety on unsupervised contact. Ms Lister said Judge Fleming had incorrectly assessed that Mr Roberts did not pose a future risk to John. Secondly, she was concerned about the emotional impact on John of being forced into visits against his will. She said he was highly distressed by the Family Court decision. Ms Lister’s affidavit raised several other matters that had little if any bearing on the stay application.
[43] Mr Roberts filed a notice of opposition and an affidavit in support. He said he believed Ms Lister had stoked John’s fears rather than making an attempt to allay them. He attached a message John had sent him in early September 2021 (after the Family Court judgment). John said he wanted a relationship with him but was scared to go to his apartment. Mr Roberts replied to John that he had no reason to feel unsafe with him and if John was concerned they could talk about it with the counsellor.
[44] Ms Lister made a further affidavit in response to Mr Roberts’ affidavit. Ms Lister’s and Mr Roberts’ affidavits reveal considerable disputes between them, mostly on matters that are not relevant to the stay application.
[45] Dr Price then filed a further affidavit from herself dated 6 October 2021. Dr Price conveyed views that she said John had expressed to her. John said he disagreed with the Family Court’s decision and did not want to go to his father’s apartment because he believed his father would hurt him. He said he had been anxious, experiencing insomnia and having panic attacks. He said he would like any contact to be supervised. He said under alert level 3 he did not want to go to Auckland and so wanted any contact to be on Waiheke Island.
[46] John also told Dr Price about the two unsupervised contacts that had by then occurred on Waiheke Island. John said those contacts had not gone well. He had felt unsafe and had told his father he did not want to be there. He thought his father had not taken his fear seriously.
[47] Mr Roberts made an affidavit in response dated 11 October 2021. By then there had been a third unsupervised contact. Mr Roberts had a different perspective on the contacts. He deposed they had gone well and had not involved any incidents that would cause John to be fearful of him. He described the contacts in detail.
Principles governing stay applications
[48] An appeal does not operate as a stay of enforcement of any order appealed against.27 However, the court may order a stay of enforcement, or grant any interim relief, pending determination of an appeal.28
[49] A party seeking a stay generally has to persuade the Court that, absent the stay, the party’s appeal rights would be rendered nugatory.29 The Court is involved in a balancing exercise:30
27 Rule 20.10(1). The High Court Rules 2016 apply to an appeal under s 143 of the Care of Children Act: see s 143(4).
28 Rule 20.10(2).
29 Philip Morris (NZ) Ltd v Liggett & Myers Tobacco Co (NZ) Ltd [1977] 2 NZLR 41 (CA).
30 Duncan v Osborne Building Ltd (1992) 6 PRNZ 85 (CA) at 87.
[I]t is necessary carefully to weigh all of the factors in the balance between the right of a successful litigant to have the fruits of a judgment and the need to preserve the position in case the appeal is successful. Often it is possible to secure an intermediate position by conditions or undertakings and each case must be determined on its own circumstances.
[50] The position is a little different with applications to stay orders under the Care of Children Act. Section 4 of that Act provides that in any proceedings under the Act the welfare and best interests of a child must be the first and paramount consideration.
Accordingly, in a stay application under the Act:31
(a)The paramount consideration is the welfare and best interests of the child.
(b)Whether or not the appeal will be rendered nugatory if a stay is refused will be a highly relevant consideration.
(c)The arguments in favour of a stay will be stronger if the decision under appeal has the effect of significantly changing the status quo.
(d)The Court will have regard to any evidence of lack of bona fides in the filing of an appeal and an application for stay as a consequence.
(e)The merits of the appeal will be important. A stay will be more likely to be granted where there are strong grounds to support the appeal and vice versa.
(f)The reluctance of the High Court on appeal to interfere with findings of credibility, and the disposal of an appeal largely or entirely on the evidence heard in the Family Court, decrease the prospects of a successful appeal and hence weaken the arguments in favour of a stay.
(g)Each case will turn on its own facts. The length of time before the appeal is likely to be heard, the current circumstances of the parties and
31 WAH v HTW [2010] NZCA 344 at [20]-[23].
the child and the consequence of delay pending the hearing of the appeal will all be relevant.
[51] I also accept that, as submitted by Ms Abdale, the views of the child must be taken into account.32
Submissions
[52] Although the stay application was sought by Dr Price on behalf of John, the first submissions in support of the stay application were filed by Ms Lister, on 5 October 2021. Her 43 pages of submissions were accompanied by a 23-page chronology spanning events starting in May 2008.
[53] Ms Lister’s submissions began with the claim Mr Roberts had committed “acts of family violence” against her and John. She said the Family Court had ordered unsupervised contact “despite having found that Mr Roberts had perpetrated physical and psychological violence against John”. She said for more than ten years “Mr Roberts terrorised Ms Lister and John”. Ms Lister’s statements do not sit easily with Judge Fleming’s finding that, even if the October 2019 incidents were as relayed by John (a matter of which she was uncertain), they were “appropriately described as moderately excessive force used to achieve compliance with a direction”.
[54] Ten pages of Ms Lister’s submissions were devoted to factual errors she said had been made by Judge Fleming in her evaluation of the evidence. These submissions involved a fine-grained analysis of evidence that was before the Family Court but was not before me. There were five pages referring to critiques of the approach that judges in the New Zealand Family Court have taken to family violence. There were eight pages devoted to social science research on such matters as the risk to children of contact with “abusive fathers” and the correlation between “child contact and child abuse”. Ms Lister referred to work by the Family Violence Death Review Committee and the United Nations Committee on the Elimination of Discrimination Against
32 Care of Children Act 2004, s 6(2)(b).
Women. All this material may (or may not) be relevant to the substantive appeal. It was not of assistance in determining the stay application.33
[55] On 11 October 2021, Ms Abdale filed Dr Price’s submissions in support of the stay application. The submissions did not refer to Ms Lister’s submissions. At the hearing I asked Ms Abdale whether she was relying on Ms Lister’s submissions. She said she was not.
[56] Ms Abdale’s submissions presented a summary of Judge Fleming’s findings. The summary was selective. Ms Abdale described the October 2019 events solely by reference to Ms Lister’s and John’s accounts of those incidents. She did not refer to the Judge being uncertain of what had occurred on those incidents, to her finding they did not reach the level of seriousness described by Ms Lister, or to her finding that neither incident represented future risk to John. Ms Abdale recorded the Judge’s finding that there was no safety issue in Ms Lister’s care. She did not record the finding that John was safe in the unsupervised care of Mr Roberts.
[57] Ms Abdale referred to the evidence of John’s fear and anxiety since the Family Court judgment. She said John had made it clear the unsupervised contacts on Waiheke Island had not gone well. She submitted there was consistent evidence that the prospect and experience of unsupervised contact with Mr Roberts was adversely affecting John’s physical and mental health. She said this had not been predicted by Judge Fleming when she made her decision.
[58] At the hearing Ms Abdale confirmed John was seeking a stay of any orders for unsupervised contact. Ms Abdale said there was other ongoing contact between Mr Roberts and John by telephone, video and online. She said John wanted that to continue.
[59] I asked Ms Abdale about the effect a stay of all unsupervised contact would have on the relationship between John and his father, given that an appeal was unlikely
33 I acknowledge some of Ms Lister’s submissions addressed matters relevant to the stay application, such as the status quo and why John’s appeal would be rendered nugatory absent a stay.
to be heard for several months. Ms Abdale said it was a matter of balancing the potential harms from a stay and no stay.
[60] Ms Lister addressed me briefly at the hearing. She emphasised the application was supported by evidence that was not before the Family Court, namely John’s reactions to the orders and to the unsupervised contact thus far.
[61] Mr Roberts submitted John’s appeal would not be rendered nugatory if I refused a stay. He submitted Ms Lister’s view of the appeal being nugatory was that John would be fearful of contact. He said this amounted to a challenge to the Judge’s findings, which I should resist. He acknowledged the paramount consideration was John’s welfare and best interests but said Judge Fleming had already made a decision on that. Her judgment, he said, was well written and well thought out.
[62] Mr Roberts said the only way to improve his relationship with John was if the orders were allowed to be given effect. Given the time until an appeal, the stay sought by John would severely affect the chances of repairing the relationship. He submitted the status quo was that he and John were having unsupervised contact this year until May 2021.
[63] As an intermediate position, Mr Roberts submitted that if I were minded to grant a stay it should only be of the orders for unsupervised overnight contact.
[64] Mr Carter filed concise written submissions. He addressed these briefly at the hearing. Mr Carter was concerned that a successful stay application would mean John would not have any face-to-face contact with his father for a long time. He said that was troubling given that in the Family Court both Ms Lister and Mr Roberts agreed that unsupervised contact was safe.
[65] Mr Carter submitted the grounds of appeal were not strong. He said Judge Fleming’s decision was careful and measured. In his oral submissions Mr Carter emphasised the Judge’s findings that John believed he could dictate what he will and will not do when with his father, that he had received a degree of support from Ms Lister in taking that attitude, and that John needed to be free from responsibility for
making decisions about contact with his father. Mr Carter expressed concern there was no evidence the adults involved in this proceeding had provided reassurance to John since the Family Court decision and since Gault J’s interim stay.
[66] Mr Carter’s concluding submission was that there should be a stay of the orders for overnight supervised contact. He did not believe it to be in John’s best interests that the unsupervised daytime contact cease. He said it was incumbent on John’s mother and father to support that contact.
Decision
[67] The paramount consideration is John’s welfare and best interests. There is evidence John is anxious and fearful of unsupervised contact with Mr Roberts and that this is causing him insomnia and panic attacks.34 I accept that this evidence is directed at all forms of unsupervised contact, not just overnight unsupervised contact. Also, I take into account John’s expressed view that he does not want any unsupervised contact.
[68] However, the evidence is also tolerably clear that it is the overnight contact that is the primary source of John’s fear and anxiety. This is what Dr Marquis- Nicholson reported. According to Dr Price’s affidavit of 6 October 2021, when she asked John why he wanted to appeal the Family Court decision, his answer was that he did not want to go to his father’s apartment. In the messages exhibited to Mr Roberts’ affidavit of 24 September 2021, John said he wanted to have a relationship but was “scared to go over to your apartment when the visits begin”.
[69] In assessing John’s welfare and best interests I also take into account the judgment in the Family Court. The Judge knew that John did not agree to unsupervised contact and that he was apprehensive about staying overnight with his father.35 The Judge was nonetheless quite satisfied that unsupervised contact –
34 I acknowledge Mr Roberts has a different perspective on this evidence, in particular on the success of the unsupervised contacts that have occurred to date. It is not possible to resolve this conflict on an application such as this.
35 At [43] and [65].
including overnight contact – was in John’s best interests. She came to that conclusion after a two-day hearing and in a careful, measured and well-reasoned judgment.
[70] I agree with Mr Carter’s submission that a stay on all of the Family Court orders would be problematic. An appeal hearing is unlikely until next year. If I were to grant a complete stay, that would likely mean no unsupervised contact between John and his father between May 2021 and the first quarter of 2022 (other than the three recent contacts). In light of the Judge’s careful assessment below, I do not believe that to be in John’s best interests, notwithstanding the evidence of the fear and anxiety he is experiencing from the unsupervised visits.
[71] There is one other matter that is relevant to a consideration of John’s welfare and best interests. In the Family Court the Judge expressed concern that Ms Lister had encouraged, perhaps unknowingly, John’s withdrawal from his father. The Judge thought John had received a degree of support from Ms Lister in taking the attitude that he could dictate what he would do with his father and that she seemed to lack insight into the unconscious messages she shared with John that affected his actions.36
[72] The extensive affidavits filed by Dr Price and Ms Lister on these appeals were silent on whether Ms Lister had given John any encouragement in relation to resuming contact with his father. I found that a surprising omission, given Ms Lister had supported unsupervised contact in the Family Court. I raised it at the hearing. Ms Abdale said it was an oversight. She noted Ms Lister had taken John to the unsupervised contacts on Waiheke Island. I acknowledge that. Ms Lister pointed out that John’s journal (exhibited to one of Dr Price’s affidavits) included an entry: “My mum says she knows he loves me and he’s just not very good at it but I disagree.” Ms Lister is to be credited for the first part of that statement, but telling John that his father is “just not very good at it” is not an encouragement of the resumption of contact.
[73] If I were to stay the entirety of the Family Court orders, there would be a further period of several months in which Ms Lister would be unlikely to provide any encouragement to John for the resumption of unsupervised contact that she had
36 At [34], [36], [51], [55] and [59].
previously supported. Given the Judge’s carefully expressed views on this topic, I do not regard that to be in John’s best interests.
[74] I next consider whether John’s appeal would be rendered nugatory if a stay were refused. In my view it would, but only in part. The Judge’s orders are not of limited duration. If I refused a stay and John’s appeal succeeded, he would still enjoy the fruits of that success from that point on. His appeal would be nugatory only to the extent he had had contact with his father in the meantime.
[75] As to whether the decision under appeal has the effect of significantly changing the status quo, that depends on how one characterises the status quo. The parties disagreed on that. Ms Lister and Ms Abdale said the status quo leading up to the decision was no unsupervised contact. Mr Roberts said the status quo was a gradual resumption of contact that had led to unsupervised contact in the first few months of this year until it was terminated in May 2021 by Ms Lister. In my view Mr Roberts’ characterisation is the more accurate. However, even that status quo did not include unsupervised overnight contact.
[76] There is no evidence of a lack of bona fides in John’s appeal or in his application for a stay. I am concerned by the content of some of the material that has been filed in support of the stay but I do not doubt that the appeal and the application are being genuinely pursued.
[77] As to the merits of the appeal, I can make no more than preliminary observations. I have already noted that the Judge’s decision is careful, measured and well-reasoned. There is nothing on the face of the judgment to suggest error. The challenges to the judgment appear largely to involve criticisms of the Judge’s factual findings or of decisions the Judge made as to the evidence to be admitted. There is a relatively high hurdle for any appellant to clear on such challenges. My preliminary view is the merits are not strong.
[78] Taking all of these matters into account, I am of the clear view there should not be a stay of all the Judge’s orders. Unsupervised contact should continue. I am equally clear the appropriate balance is struck by staying the orders for unsupervised overnight
contact and by prohibiting Mr Roberts from taking John to his apartment during the unsupervised daytime contact.
[79] It remains to determine the frequency and duration of the unsupervised daytime contact. I agree with the Judge that a gradual approach to increasing contact is in John’s best interests. I also take into account that while Auckland remains subject to COVID-19 alert level 3 restrictions there are limited indoor options for any contact.
[80] I therefore stay the Family Court orders providing for overnight unsupervised contact. I also direct that, pending further order of this Court:
(a)Daytime unsupervised contact for the next two weeks (Saturday 16 and 23 October 2021) is to occur on Waiheke Island for approximately three hours.
(b)For the following four weeks daytime unsupervised contact is to move to Saturday and Sunday. Such contact is to occur on Waiheke Island. While Auckland is subject to COVID-19 alert level 3 restrictions the contact is to be for approximately three hours. While Auckland is subject to COVID-19 alert level 2 restrictions (or lower) the contact is to be for approximately five hours.
(c)Thereafter daytime unsupervised contact is to continue to occur on Saturday and Sunday. While Auckland is subject to COVID-19 alert level 3 restrictions the contact is to occur on Waiheke Island for approximately three hours. While Auckland is subject to COVID-19 alert level 2 restrictions (or lower) the contact can occur on Waiheke Island or in Auckland or both (at Mr Roberts’ choice) and is to be for approximately five hours. However, Mr Roberts may not take John to his apartment.
(d)During (c), where there is a public holiday on a weekend, daytime unsupervised contact will extend to that public holiday, on the same basis described in (c).
[81] The Judge ordered that over school holidays commencing Christmas 2021 John’s care was to be shared by agreement. She granted leave to apply for further orders in relation to school holidays and special occasions if there was no agreement. I do not stay that order or disturb the grant of leave. If Mr Roberts and Ms Lister cannot reach agreement on those matters they are to apply for further orders in the Family Court. To be clear, the directions I have made at [80](c) and (d) will continue through any school holidays, absent agreement or a further order of the Family Court in accordance with the leave granted.
[82] At the hearing I was told there is relatively frequent telephone, video and online contact between John and his father. I considered making orders that contact continue. Ms Abdale was open to that. On reflection, my sense is such orders might be counterproductive.
Result
[83] I decline Mr Roberts’ application to review my decision appointing Dr Price as John’s litigation guardian.
[84] I stay the Family Court orders providing for overnight unsupervised contact. I make the directions set out at [80].
[85] I regard success on the two applications as having been shared. Costs are to lie where they fall.
Campbell J
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