Ross v Richards
[2023] NZHC 797
•17 April 2023
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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2022-404-000247
[2023] NZHC 797
UNDER the Care of Children Act 2004 IN THE MATTER OF
an appeal against the decision of the Family Court at Auckland on 25 January 2022
BETWEEN
JOHN ROSS
Appellant
AND
CATHERINE RICHARDS
Respondent
Hearing: 28 March 2023 Appearance:
Appellant self-represented
P Le’au’anae for Respondent
G M Webster as Lawyer for ChildJudgment:
17 April 2023
JUDGMENT (ANONYMISED) OF VAN BOHEMEN J
[Reasons for decision]
This anonymised judgment was delivered by me on 17 April 2023 at 2:00 pm Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
……………………………..
Counsel/Solicitors:
P Le’au’anae, Auckland G M Webster, Auckland Copy to: Appellant
ROSS v RICHARDS [2023] NZHC 797 [17 April 2023]
[1] John Ross appeals the decision of Judge J G Adams given in the Family Court at Manukau on 25 January 2022 granting parenting orders in relation to Helen Richards, the daughter of Mr Ross and Catherine Richards.1
[2]In his decision, Judge Adams granted:
(a)a parenting order for day to day care of Helen to Ms Richards, except when Helen is in the day to day care of Mr Ross; and
(b)a parenting order for day to day care of Helen to Mr Ross for alternate weekends during the school term from 4.30 pm Friday to 4.30 pm Sunday, and for half the school holidays – with the long holidays being alternate weeks, arranged so Helen spends Christmas Day with Mr Ross.
[3]I heard Mr Ross’ appeal on 28 March 2023.
[4] After hearing from Mr Ross, who is self-represented, counsel for Ms Richards, Mr Le’au’anae, and counsel for the child, Mr Webster, I advised Mr Ross that I intended to dismiss his appeal. However, having heard from Mr Webster that Helen wished the orders made by Judge Adams to be varied to increase the time she spent with Mr Ross, and from Mr Le’au’anae that Ms Richards was prepared to consent to the variations that Helen had indicated to Mr Webster, I offered Mr Ross the opportunity to resolve his appeal and to vary Judge Adams’ orders by consent. I adjourned the hearing to give Mr Ross and counsel the opportunity to agree on the terms of varied orders.
[5] In the event, Mr Ross refused to agree to the variations which Helen had indicated to Mr Webster and insisted on more extensive variations that would have equalised the amount of time that Helen spent with him. Ms Richards would not consent to vary the orders to that extent at that time.
1 Richards v Ross [2022] NZFC 611.
[6] Accordingly. I dismissed Mr Ross’ appeal and said I would issue my reasons as soon as possible.
Relevant background
[7] Mr Ross and Ms Richards are South Africans of Indian ancestry.2 They married in South Africa in March 2000. Helen was born in South Africa on 1 June 2010. Ms Richards is Hindu; Mr Ross is Christian.
[8] In 2017, Mr Ross and Ms Richards agreed to separate and Ms Richards applied for divorce. However, when Ms Richards was offered employment in New Zealand, she and Mr Ross reconciled and agreed to come to New Zealand together. Ms Richards withdrew her application for divorce.
[9] In 2018, Mr Ross, Ms Richards and Helen came to New Zealand. They entered on the basis of Ms Richards’ work visa. Although Mr Ross pursued work opportunities in New Zealand, he did not obtain employment or set up a business. Ms Richards supported the family from her salary. Mr Ross says he was a stay-at-home dad and looked after Helen. Ms Richards says Mr Ross was not heavily present in Helen’s life.
[10] In early 2021, Ms Richards was made redundant following a corporate restructuring and lost her right to residency in New Zealand. Ms Richards arranged for the family to return to South Africa and purchased tickets for the family to depart New Zealand on 16 April 2021. It appears from emails exchanged between them that Ms Richards had told Mr Ross she intended to separate from him on their return to South Africa.
[11] On 12 April 2021, Mr Ross made a without notice application for an order preventing Helen from leaving New Zealand. He obtained that order on 13 April 2021.3 He did not advise Ms Richards of what he had done.
2 In his amended notice of appeal, Mr Ross says he and Ms Richards are descendants of Crown indentured labourers.
3 Ross v Richards FC North Shore FAM-2021-044-000206, 13 April 2021.
[12] On 15 April 2021, Mr Ross took Helen to a shopping mall, ostensibly for the purpose of buying Helen a toy. He advised Ms Richards by text message that he had obtained an order preventing Helen from leaving New Zealand and that he would agree to meet Ms Richards only in a public place. He asked Ms Richards for funds to meet the costs of Helen and himself. He also sought crowd-funding by posting messages on the internet under the by-line “South African Dad and Daughter need help in New Zealand”.
[13] On 22 April 2021, Ms Richards applied without notice to the Family Court for an interim parenting order and an order to uplift Helen. Those orders were granted without notice to Ms Richards on 25 April 2021.4 However, an application for an order to allow Helen to leave New Zealand was denied, as was an application to discharge the non-removal order obtained by Mr Ross.
[14] As a result of Ms Richards’ application, Helen was placed in the care of her mother. Mr Ross then applied for his own parenting orders.
[15] On 15 June 2021, the Family Court made an interim parenting order by consent.5 Ms Richards was granted day to day care of Helen. Mr Ross was granted contact with Helen on specified terms. Mr Ross was given care of Helen on alternate weekends and for a week during school holidays.
[16] The applications for final parenting orders were heard by Judge Adams on 21 January 2022. Mr Ross and Ms Richards were each represented by counsel. Mr Kannemeyer was counsel for Helen. Judge Adams issued his judgment on 25 January 2022.
[17] Between the interim orders granted in June 2021 and the hearing in January 2022, Ms Richards accepted an offer of permanent employment in New Zealand and applied for new residency visas for herself and Helen. In order to make that application, however, Ms Richards had to apply for orders from the Family Court granting her exclusive guardianship of Helen for the purposes of making the
4 Richards v Ross FC North Shore FAM-2021-044-000206, 23 April 2021.
5 Richards v Ross FC North Shore FAM-2021-044-000206, 15 June 2021.
immigration applications and to obtain the release of Helen’s passport from the police.6 Mr Ross opposed the applications because he was unwilling for Ms Richards to have sole responsibility for the process. The Family Court Judge made the orders because she was satisfied the applications were in the welfare and best interests of Helen.7
Judge Adams’ decision
[18] Judge Adams noted that the parties’ immigration status was uncertain, particularly for Mr Ross. He noted that Ms Richards had a permanent position of employment and had been open about her intentions, whereas Mr Ross had been evasive to the Family Court and not prepared to disclose his immigration affairs. However, the Judge noted that Ms Richards, Helen and Mr Ross all wished to remain in New Zealand and recorded that his decision was based upon the premise that it would be possible for them to do so. He said it would be unfortunate for Helen if she and her mother remained in New Zealand but her father was unable to gain residence.8
[19] Judge Adams noted that, because immigration issues had dominated early affidavits from the parties, little attention had been given to establishing what arrangements would best promote Helen’s welfare and best interests. However, the judicial interview he had with Helen and material proffered during the hearing enabled him to make a confident assessment.9
[20]Judge Adams considered the applications under four headings:
(a)The parties’ immigration status;
(b)The resources of each household;
(c)Helen’s views and the weight to be given to them;
(d)The orders that would best promote Helen’s welfare and best interests.
6 Richards v Ross [2021] NZFC 11634.
7 At [17].
8 Richards v Ross, above n 1, at [3]
9 At [4].
The parties’ immigration status
[21] Judge Adams summarised the developments that had led to Ms Richards’ decision to return to South Africa and the events that had followed. He noted that Ms Richards was now permanently employed and wished to remain in New Zealand. She had applied for appropriate visas for herself and Helen. Because Ms Richards had had to obtain an order from the Family Court to make that application, Judge Adams found that Mr Ross had been obstructive, whether because he wanted to control Helen’s application or incidental to his competition with Ms Richards.10
[22] Judge Adams recorded that Mr Ross had been “remarkably coy” about his own immigration status and had refused to answer questions to elucidate.11 The Judge also recorded that he thought it would promote Helen’s best interests if Immigration New Zealand obtained accurate information about the parties. Because of his concern that Mr Ross was not necessarily straightforward about the family’s history and the family’s circumstances, the Judge directed that a copy of his decision should be provided to Immigration New Zealand in relation to applications affecting all three parties.12
The resources of each household
[23] The Judge said that because Ms Richards had permanent employment, she was able to afford suitable accommodation. She and Helen lived in Whangaparāoa, where Helen attended school. The Judge considered that Ms Richards seemed well able to run the household despite work commitments.13
[24] The Judge noted that Mr Ross resided at Māngere in accommodation provided by an organisation that cared for persons whose immigration status was under question. The Judge said Mr Ross had no formal lease and was hampered by having no employment and, as the Judge understood it, no current right to employment in
10 At [8] – [11].
11 At [11].
12 At [15].
13 At [16].
New Zealand or any right to a WINZ benefit. Mr Ross had offered no information on how he managed to live.14
[25] The Judge found that Mr Ross had undertaken no actual enquiry about schools that Helen could attend and did not know the names of local schools and did not seem to have “invested strategic energy in planning for Helen to be in his residential care”.15 Considering Mr Ross’ lack of foresight in seeking the order preventing Helen’s removal and his appeal for crowd-funding, the Judge inferred that Mr Ross was not a capable planner or organiser. The Judge stated that Mr Ross “is time-rich but I find he is not strongly motivated.”16
[26] Judge Adams noted that a theme of Ms Richards’ application had been that Mr Ross had been carried financially by her. The Judge did not find that, while the family was intact, Mr Ross’ engagement with Helen was superior to that of Ms Richards, despite Ms Richards’ work hours.17
[27] The Judge found that Mr Ross could manage from day to day, but his circumstances were uncertain, short term and unlikely to endure long-term. In addition, Mr Ross’ relationship with Helen was much less supportive of Helen than that of her mother. In terms of material and strategic resources, the Judge found Ms Richards to be in a much sounder position than Mr Ross.18
Helen’s views
[28] The Judge recorded that he met Helen in the company of counsel for the child, Mr Kannemeyer. The Judge said Helen impressed as competent for her age and was forthright in telling the Judge she wanted to remain living with her mother but wished to have contact with her father on alternative weekends and one week periods in school holidays. The Judge noted that Helen was in on-going communication with her maternal family in South Africa and spoke of attending Hindu temples with her South African family. He noted that Mr Ross was critical that Helen had little contact with
14 At [17].
15 At [18].
16 At [19].
17 At [20].
18 At [22] – [23].
his family and commented that that was a matter for Mr Ross to organise. The Judge said Helen no longer wished to return to South Africa and seemed comfortable in her social circumstances in Whangaparāoa.19
[29] The Judge said Helen’s conversation reflected an ease and comfort in her relationship with her mother. However, her relationship with her father was more problematic for her. Some of his directives, such as telling her not to have contact with a family who are friends of Ms Richards and whose company Helen enjoyed, made her feel guilty. The Judge referred to text messages Helen had sent her mother when Mr Ross had taken her in April 2021, which had disclosed Helen’s discomfort. The Judge also referred to text messages Mr Ross had sent Helen about her communications with her lawyer before the hearing, which had been intrusive and had made Helen feel uncomfortable.20
[30] The Judge recorded his impressions of Mr Ross’ demeanour and actions when he gave evidence and said that, in his assessment, “a child of Helen’s age would find such forcefulness oppressive.”21 The Judge found that Helen positively wanted to retain an on-going relationship with her father but his behaviour was sometimes emotionally oppressive to her.22
Orders to promote Helen’s welfare and best interests
[31] Judge Adams noted that each parent was seeking predominant day to day care for themselves, with alternate weekend contact in term-time and week-long periods in the holidays for the other parent. Considering the principles in s 5 of the Care of Children Act 2004, the Judge found that a scheme that included both parents was important for Helen’s welfare. He also found that Helen would be best based if she continued to have her principal residence with her mother, with whom she had her strongest, most secure bond.23
19 At [24] – [27].
20 At [24] – [31].
21 At [32].
22 At [32].
23 At [36].
[32] The Judge noted that, in many similar cases, he would make a parenting order for day to day care to Ms Richards and a parenting order for contact to Mr Ross. In this case, however, the Judge said he had tweaked the orders by describing the periods of time when Helen was with her father as day to day care for those periods. The Judge explained his reasoning as follows:24
My intention is to shore up the status of [Mr Ross’] position in his daughter’s life. I intend this to be an implied message to Immigration New Zealand to whom I wish to underscore the importance for Helen of having both parents available to her in the same country if that can be achieved according to immigration requirements.
[33]Accordingly, the Judge made the orders described at [2] above.
Mr Ross’ appeal
[34] Mr Ross’ amended notice of appeal makes critical comments about the Family Court processes leading up to Judge Adams’ decision, in particular the without notice granting of the interim parenting order in favour of Ms Richards. The notice of appeal sets out Mr Ross’ perspective of events and states Mr Ross’ grounds of appeal in 28 paragraphs. In broad terms, the grounds:
(a)challenge the Family Court’s jurisdiction to grant a final parenting order in favour of one parent where the parties are migrants on temporary visas;
(b)allege unspecified breaches of the Care of Children Act, the New Zealand Bill of Rights Act 1990 and the principles of natural justice;
(c)allege predetermination, partiality, irrationality, prejudice, defamation and the suborning of perjury on the part of Judge Adams;
(d)allege failures by Judge Adams in not ascertaining Police reports on Helen’s circumstances when Helen was taken from Mr Ross, in denying Mr Ross’ request for a psychological evaluation of Helen, and in using an improper procedure when interviewing Helen;
24 At [38].
(e)allege failures by Judge Adams in his assessment of the evidence and in not considering the effects of the separation of Mr Ross from Helen, which altered the status quo against Mr Ross and meant that Mr Ross was disadvantaged when the Court was considering what was in Helen’s best interests.
Relevant provisions of Care of Children Act 2004
[35]Under s 3 of the Care of Children Act, the purpose of the Act is to:
(a)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
(b)recognise certain rights of children.
[36] Section 4(1) requires that the welfare and best interests of a child in their particular circumstances must be the first and paramount consideration in any proceedings under the Act.
[37] Section 5 sets out the principles relating to a child’s welfare and best interests. These include:
(a)a child’s safety must be protected;
(b)a child’s care, development, and upbringing should be primarily the responsibility of their parents and guardians;
(c)a child’s care, development, and upbringing should be facilitated by ongoing consultation and co-operation between their parents;
(d)a child should have continuity in their care, development, and upbringing; and
(e)a child should continue to have a relationship with both of their parents.
[38] Section 6 relevantly requires that, in proceedings involving the role of providing day-to-day care for or contact with a child, the child must be given
reasonable opportunities to express views on matters affecting them and any views the child expresses must be taken into account.
[39] Section 48(1) provides that 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.
[40] Section 133(4A) provides that, in a proceeding for a parenting order, the court may obtain a psychological report. However, the court’s discretion to obtain a psychological report must be exercised in accordance with s 133(6), which requires that the court be satisfied that:
(a)the information the psychological report will provide is essential for the proper disposition of the application; and
(b)the psychological report is the best source of the information; and
(c)the proceedings will not be unduly delayed by the time taken to prepare the psychological report; and
(d)any delay in the proceedings will not have an unacceptable effect on the child.
[41] Section 133(6) also requires that a psychological report is not sought solely or primarily to ascertain the child’s wishes.
[42] Under s 143, a person that is party to a proceeding under the Act to make or refuse a parenting order may appeal to the High Court against a decision to grant the order.
Submissions by Mr Ross
[43] Mr Ross took issue with Judge Adams for not referring to the interim without notice parenting order granted to Ms Richards. He noted that the Immigration Protection Tribunal granted his appeal against deportation, despite what he said was
Judge Adams’ referral of Mr Ross to Immigration New Zealand for investigation. He took issue with Judge Adams’ account of what happened between himself and Ms Richards after she lost her job and said Judge Adams misinterpreted the steps he had taken to protect Helen. He said Judge Adams was not impartial in his assessment of the evidence of Ms Richards and himself and did not adequately assess the evidence about what had caused Mr Ross to apply for his orders to prevent Helen leaving New Zealand.
[44] Mr Ross questioned the Family Court’s jurisdiction to take “immigration situations” into account when making final parenting orders. He challenged the fairness of the hearing of Ms Richards’ application for parenting and guardianship orders and said the orders had negative consequences for his own immigration situation and for his ability to provide care for Helen. He also said he was not treated fairly in the hearing before Judge Adams.
[45] Mr Ross said his personal circumstances in January 2022, when Judge Adams heard the applications, had been compromised by earlier decisions of the Family Court, which had removed Helen from his care, and by the actions of Immigration New Zealand in cancelling his right to work and his ability to access support. Mr Ross took particular exception to Judge Adams’ observations about Mr Ross’ ability to plan and organise and said they were contradicted by the evidence.
[46] Mr Ross questioned Judge Adams’ account of his interview with Helen and submitted that the account and the weight the Judge gave to the interview should not be a qualitative factor in considering his appeal. The Judge denied his repeated requests for an assessment of Helen by a qualified professional in accordance with s 133 of the Care of Children Act and Mr Ross’ request that the interview be delayed.25 He said Judge Adams erred in concluding that Helen was Hindu and disputed the Judge’s finding that Helen would find Mr Ross’ behaviour oppressive. He asserted that Helen later told him that she had not wanted to speak to the Judge or the lawyer
25 The Judge did this in an earlier minute made before the hearing took place: Richards v Ross FC Auckland FAM-2021-044-000206, 19 January 2022 (Minute of Judge Adams). Mr Ross requested “a specialist report” to “ascertain whether Helen is a victim of coaching, coercion, or parental alienation”. Mr Ross later characterised this report as a “psychological evaluation” in his Amended Notice of Appeal.
for the child. He also said that it had become apparent that Ms Richards had been present at the Judge’s interview with Helen, which raised issues of conflict of interest and inappropriate influence. Mr Ross referred to the Notes of Evidence of the hearing before Judge Adams in support of this submission.
[47] Mr Ross made other complaints about the way Judge Adams considered the evidence and about the way the Family Court operates more generally. None of these complaints had any merit.
Submissions on behalf of Ms Richards
[48] Mr Le’au’anae, counsel for Ms Richards submitted that Judge Adams made no error in law or fact and correctly applied the Care of Children Act. Mr Le’au’anae also submitted that orders were entirely appropriate in the circumstances before Judge Adams. For these reasons, he said Mr Ross’ appeal should be dismissed. However, Mr Le’au’anae said Ms Richards was willing to resolve the appeal by consent and to agree to an adjustment of the parenting orders made by Judge Adams to accord with what Helen had discussed with the Lawyer for the Child.
Submissions on behalf of Helen
[49] Mr Webster, Lawyer for the Child, filed a memorandum prior to the hearing in which he advised that Helen was pleased her father was living closer to her and her school and that she would like to spend more time in her father’s care provided that did not intrude on her time with her friends. Helen had proposed that the care arrangements be adjusted so that she would begin weekends with her father from
4.30 pm on Thursdays and would end with her going directly to school from her father’s house on Monday mornings. Helen said that she liked the current school holiday arrangements which were split into two equal blocks and indicated that she preferred this over holidays being broken down into smaller blocks.
[50] In his memorandum, Mr Webster said he intended to convene a roundtable meeting prior to the hearing to see whether agreement might be reached in relation to Helen’s on-going care. However, that meeting did not occur because Mr Ross wanted to achieve more equal care arrangements.
[51] At the hearing, Mr Webster agreed with Mr Le’au’anae that Judge Adams had not made any error in law or fact and for that reason, the orders made by Judge Adams should stand. However, from Helen’s position, he said that was not ideal. Mr Webster explained that he and Helen had discussed various options for adjusting the parenting orders made by Judge Adams and that the option he had put forward in his memorandum had been the one that Helen wanted to proceed with. Mr Webster observed that, if Mr Ross was prepared to agree, it would be open to the Court to vary Judge Adams’ parenting orders by consent along the lines proposed by Helen.
The hearing
[52] At the hearing on 28 March 2023, I explained to Mr Ross that my focus on appeal was solely on Judge Adams’ decision. It was not open to me, and nor had it been open to Judge Adams, to revisit earlier decisions taken with respect to Helen’s guardianship and care. I also pointed out to Mr Ross that he was quite wrong in his contention that Judge Adams had sought to compromise Mr Ross’ position with Immigration New Zealand. To the contrary, it was plain from Judge Adams’ decision that he had been trying to bolster Mr Ross’ case for staying in New Zealand so that Helen would be able to have access to Mr Ross as well as Ms Richards.
[53] I explained to Mr Ross that I had read Judge Adams’ decision carefully and was satisfied there was no basis for overturning the decision. I considered Mr Ross’ criticisms of the Judge’s decision to have no substance. My reasons for those conclusions are set out below. I pointed out to Mr Ross that if I simply decided the appeal, the result would be that the orders made by Judge Adams would stand. However, if Mr Ross was willing to resolve the appeal by consent, it would be open to me to adjust the parenting orders so that Helen would be able to spend more time with her father.
[54] I adjourned the hearing to give the parties an opportunity to discuss the terms of a possible consent order. When the hearing resumed, I was advised that Mr Ross was not prepared to agree to anything less than an equal care arrangement with Ms Richards. I was also advised that Ms Richards was unwilling to make such a significant change to the parenting orders at this stage.
[55]In these circumstances, I dismissed Mr Ross’ appeal.
Reasons for dismissing appeal
[56] An appeal under s 143 of the Care of Children Act is a general appeal. Accordingly, the principles set out by the Supreme Court in Austin, Nichols & Co Inc v Stichting Lodestar apply.26 This Court is free to reach its own view on whether parenting orders should have been made in the terms set out in the Family Court’s orders, based on the evidence before the Family Court and any further evidence admitted on appeal. However, the appellant bears the onus of satisfying the appeal court that the Family Court was wrong. Mr Ross has not discharged that onus.
[57] It is clear that Judge Adams’ first and paramount consideration throughout his decision was on Helen’s welfare and best interests in her particular circumstances, as required by s 4 of the Care of Children Act. It is equally plain that Judge Adams had regard to the principles in s 5 of the Act and to Helen’s views as required by s 6 of the Act.
[58] Mr Ross’ criticisms of the Judge’s judgment relate largely to the Judge’s findings and observations about Mr Ross’ conduct and circumstances. I consider those findings and observations were open to the Judge on the basis of the evidence before him. I also consider they were appropriate and relevant to the Judge’s assessment of what would be in Helen’s welfare and best interests. I do not accept Mr Ross’ attempts to reinterpret the evidence. I do not accept that the Judge failed to remain impartial or acted against Mr Ross’ interests. The Judge acknowledged that Helen’s relationship with her father was important to her and that a mix of activities with both her parents was beneficial.
[59] As with much of the case presented by Mr Ross, those aspects of Mr Ross’ submissions were focused on Mr Ross’ views of his rights and responsibilities, were not objective or supported by independent evidence and took little account of Helen’s views or her welfare and best interests.
26 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [4] – [5].
[60] There was no error in the Judge taking account of the family’s immigration situation. Where Helen and her parents were able to reside was directly relevant to Helen’s welfare and best interests. The Judge also proceeded on the basis that it was possible that both parents could remain in New Zealand.
[61] There was no error in the Judge’s assessment of the resources of the respective households. It is obvious that Ms Richards can provide a more stable and financially secure home for Helen. Mr Ross’ current situation is better than it was when Judge Adams made his decision. Mr Ross now has the right to reside in New Zealand and has access to WINZ benefits. He has also moved to rental accommodation in Whangaparāoa, which means he is closer to Helen and it is easier for her to be with him. However, these improvements in Mr Ross’ situation would not have persuaded me to reach a different conclusion from Judge Adams regarding the resources of the respective households. It remains the case that Ms Richards is in a much sounder position than Mr Ross in terms of their respective abilities to provide for Helen. In response to my question, Mr Ross confirmed that, while he is looking to do work with a community organisation, he is not currently looking for paid employment.
[62] Mr Ross’ criticisms of Judge Adams’ interview with Helen are without foundation. The Judge met with Helen in the company of her lawyer – which is standard practice. There was no requirement under the Care of Children Act for the Judge to obtain a psychological report just because Mr Ross said there should be one. In accordance with s 133 of the Act, the decision on whether such a report should be obtained was for the Judge to make, bearing in mind the criteria of which the Judge had to be satisfied under s 133(6).
[63] The Judge’s decision not to obtain a report before meeting with Helen was based on his assessment that it would delay the hearing by “many months”.27 In those circumstances, to seek a psychological report would not have been consistent with the statutory directions in s 133(6). Furthermore, on interviewing Helen, Judge Adams found he had “no cause to think that she had been coached, coerced or alienated by
27 Richards v Ross (Minute of Judge Adams), above n 25.
her mother”, and instead found that she was under “some emotional pressure from her father”.28
[64] Mr Ross’ attempts to cast doubt on the validity of the views the Judge obtained from Helen have no credible basis. They suggest that Mr Ross finds it difficult to accept that Helen may have views that differ from his own. There is nothing in the Notes of Evidence that supports Mr Ross’ contention that Ms Richards was present at the Judge’s interview with Helen. Judge Adams’ recording of what Helen said to him about visiting Hindu temples in South Africa was factual and made no assumptions about Helen’s religious affiliation.
[65] I am satisfied that Judge Adams’ interview with Helen and the weight he gave to Helen’s views were entirely appropriate.
[66] I am also satisfied there was no error in the orders that Judge Adams made to promote Helen’s welfare and best interests. They reflect a careful concern to ensure that Helen would be in a secure and stable situation with her mother but would also have regular and meaningful contact with her father. While focussing on Helen’s welfare and best interests, in order to shore up Mr Ross’ immigration position, the Judge deliberately tweaked the order by describing the time Helen would be with Mr Ross as “day to day care” rather than “contact”. Far from acting against Mr Ross’ interests, the Judge was actively seeking to assist Mr Ross – a reality that Mr Ross is unable or unwilling to recognise.
Result
[67] For all these reasons, I was satisfied there was no error of law or fact in Judge Adams’ decision. I was also satisfied that the parenting orders made by Judge Adams were entirely appropriate in the circumstances before the Judge. Accordingly, I dismissed Mr Ross’ appeal.
28 Richards v Ross FC Auckland FAM-2021-044-000206, 21 January 2022 (Minute No 1 of Judge Adams) at [6].
Costs
[68] Mr Le’au’anae submitted that costs should be awarded in favour of Ms Richards. I agree. Mr Ross has insisted on exercising his rights of appeal, as he is entitled to do. A usual consequence of exercising a right of appeal is that, if unsuccessful, the appellant is liable to pay the costs of the respondent.
[69] I direct that Mr Ross pay Ms Richards’ costs on a 2B basis. Because of Mr Ross’ limited means, I do not order any uplift on scale costs.
[70] If the parties are unable to agree on costs, they may file memoranda of no more than four pages. Any memorandum on behalf of Ms Richards is to be filed and served by 9 May 2023. Any memorandum by Mr Ross is to be filed and served by 23 May 2023.
Concluding observation
[71] It ought to have been possible to have resolved this appeal by consent and in a way that would have increased the amount of time that Helen would spend with her father – as Helen herself wanted. That did not happen because of the stance taken by Mr Ross. His approach before me, and before the Family Court, has been to focus on where he believes he was wronged, rather than on what is in the welfare and best interests of Helen. In taking that approach, Mr Ross misunderstands the law and does a disservice to himself and his daughter.
G J van Bohemen J
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