S v J HC Hamilton CIV-2006-419-688

[2006] NZHC 1682

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2006-419-688

IN THE MATTER OF     an appeal against a decision of the Family

Court

BETWEEN  K H S

Appellant

AND  C D J

Respondent

Hearing:29 May 2006 (Heard at Hamilton)

Appearances: KHS in Person

T Sutcliffe for Respondent

T Gunn as counsel appointed for the child Judgment:  29 May 2006

JUDGMENT OF ASHER J

Solicitors:

KHS, 8 Kingsbury Court, Hamilton

Till Henderson King, PO Box 19021 Hamilton T Gunn, Barrister, PO Box 4179 Hamilton

S V J HC HAM CIV-2006-419-688 [29 May 2006]

[1]    This  is  an appeal against  a  decision of the  Family Court  at  Hamilton of  23 May 2006 declining the appellant’s request for adjournment of a fixture. That fixture was set down for two days commencing Wednesday, 31 May 2006. The hearing is to determine an application for parenting orders filed by the respondent in respect of J H (“J”). J is six years old. The matter was

heard at 5:00 pm today because of its urgency.

Brief general history

[2]    There has been continuing litigation in the Family Court at Hamilton concerning J since he was seven months old. The heart of the dispute has been

the respondent’s wish to have reasonable time and a normal father/son relationship with J, and his complaints that the appellant has actively sought to thwart this.

There have been a number of decisions given in the Family Court concerning the issues.     There was a period of eight months when  J  was  taken  to  Australia without the respondent’s knowledge or consent.

[3]    The central issue is whether, because of the actions of the appellant and her family, J has been and continues to be alienated from his father. The situation reached a point last year when the respondent sought day to day care of J.

[4]    In a judgment of 27 September 2005 Judge A E McAloon declined to make a parenting order in the respondent’s favour. In a decision that essentially found that  he was being denied proper access to J, and that that was affecting J’s

wellbeing, a number of orders were made which were designed to ensure that there would be proper contact thereafter. Orders were made in detail, but regrettably the directions have not been observed and there has been only odd and spasmodic contact between the respondent and J. At the present time there is no contact

at all.

Reasons for adjournment request

[5]    The appellant’s reason for the adjournment request is that she does not have legal representation for the hearing due to commence the day after tomorrow. She has had a number  of  lawyers  act  for  her  in  the  course  of  these  proceedings.  Mr Sutcliffe has submitted that she has had 17 lawyers act for her. She denies this but has accepted that there have been 11 different lawyers who have acted for her. The lawyer who most recently acted for the appellant  ceased to  do  so on or about   5 May 2006. Since then the appellant has informed me from the Bar that she has made every effort to obtain a lawyer to represent her but has been unsuccessful. She points out that the hearing due to start on Wednesday will be a crucial hearing and she wishes to be represented. She believes she will be substantially disadvantaged if she is not so represented.

[6]The appellant criticises the decision of the Family Court of 23 May 2006.

She submits that it is “perverse and unreasonable” and denies her and J the

right to “natural justice”. She asserts that the adjournment shows “judicial prejudice and bias against the applicant”. She wishes to obtain a critique of the Court psychologist’s report.

The test to be applied

[7]    A decision on an adjournment request is the exercise of a judicial discretion. In Gray v Thom [1997] NZFLR 328, Penlington J stated that the orthodox appellate approach to the exercise of judicial discretion applies to an adjournment  request. The appellant is required to demonstrate that the Court appealed from has proceeded on a wrong principle or that the judge gave undue weight to some  factor or insufficient weight to another factor or that the judge was plainly wrong. It is not open to the Court simply to substitute its own view as to the proper outcome.

[8]    Mr Sutcliffe for the respondent also referred me to the decision of O’Malley v Southern  Lakes   Helicopters   Limited   (High   Court   Christchurch,   CP 513/89,  4 December 1990) in which Tipping J pointed out that the essential question in relation to an adjournment request is whether or not an adjournment is necessary in

order to do justice between the parties. It is not to be overlooked that it is not only justice for the party who is seeking the adjournment that must be considered. It is also justice for the party who wishes to retain the benefit of the fixture. It is essentially a balancing exercise.

[9]    In these sorts of proceedings there is a further matter to be put into the balance. That is the welfare of the child. These are proceedings under the Care of Children Act 2004. The child’s welfare and best interests must be the first and paramount consideration. I consider that in terms of s 4(1) this must apply to an adjournment request which may affect the child as much as to any substantive issue.

Immediate procedural history

[10]   I have already briefly referred to the extensive history of this case. The hearing before Judge AE McAloon took five days. There was then a further application and decision as to the particular orders that were in place made earlier this year. The appellant appealed that decision. Following that, the respondent applied for parenting orders and obtained the pending fixture.

[11]   An application for an adjournment was first made informally by letter by the respondent at some stage in early May 2006. That was considered by Judge DR Brown on 12 May 2006. In a Court Minute he declined the application. That is not the decision that is appealed from.

[12]   Following that informal application the appellant filed a formal written application for an adjournment. This was initially to be heard on 19 May 2006. It was deferred at the appellant’s request to Monday 22 May 2006. At that stage there was a request for an adjournment made informally and the matter was deferred again to the next day, 23 May 2006. The hearing took place in the  afternoon.  The appellant did not appear.

The decisions

[13]   The judge gave two decisions. First, he declined to adjourn the adjournment application.     He had before him  an  unsigned  facsimile  from  Ms S’s  father stating that Ms S “is unable to attend due to an injury”. There was an attached medical certificate which recorded the appellant was “unfit to resume work for a period of three days from 23 May 2006”. The judge did not consider that that was a satisfactory explanation. The judge pointed out that in a Minute made the previous day he had made it plain that the Court expected any application to justify an adjournment of the matter to be supported by medical evidence. He did not regard  the certificate provided as in any way adequate and noted that the appellant could be unfit for work but could nonetheless come to the Court hearing.

[14]   In the second decision on the substantive issue of an adjournment the judge began by noting briefly the history of the proceedings. He noted that there were concerns about J’s attendance at school. He made this statement:

These proceedings are extraordinary even by the standards of this Court, and I need to say that clearly and succinctly. The Court’s files more than fill two large cardboard boxes. There are literally thousands of pages of material here. The Court’s conclusion when it heard the matter last year was that it was imperative that this boy began steady contact with his father. That has not occurred.

There is a pattern in these proceedings of J’s mother failing or  refusing

to co-operate with persons involved in these proceedings and there is a further pattern of her lodging complaints about people in these proceedings. In that regard, it seems that a complaint has been made, or is about to be made, regarding Ms S’s last lawyer and apparently a complaint is

being made about the Court’s present psychologist.

Parties are entitled to complain. The net result of this, however, is that the Court’s ability to deal with this situation and attempt to find the best solution for   this   little   boy  is  thwarted.  The reality of the present lack of representation for Ms S  is  that  this  is  a  part  of  a  repeating  pattern which has occurred literally before in the face of coming Court proceedings.

[15]   He noted that the Court was hesitant to force matters on for hearing when a party is unrepresented but felt that the Court had no option but to press ahead with  the hearing. He quoted a statement from the latest report of the psychologist appointed by the Court under s 133 of the Care of Children Act to the effect that if alienation is taking place at the behest of the parent this becomes increasingly deep

seated and critical with the passing of time. He noted that the lawyer appointed to represent J, Ms Gunn, had emphasised that the psychologist had reported that

the effluxion of time benefited the alienator. She strongly opposed the adjournment. These matters persuaded the judge to decline the adjournment.

Decision

[16]As I have already stated the paramount consideration is the welfare of

J. I am satisfied that the Family Court judge was well aware of that principle and I note the references to J’s position in his judgment. There was a body of

evidence before the judge which supported a conclusion that an adjournment would be contrary to J’s interests.

[17]I note the following:

a)The conclusion of Judge AE McAloon in  her  careful  judgment  of 27 September 2005 that there was evidence of alienation of J.

In the judgment she made some strong findings stating that the appellant had succeeded in ensuring one way or another that J
had not had consistent or meaningful or satisfactory contact with his father for most of his life: para [29]. She rejected Mr Headley’s evidence and stated that he was not a credible witness. She concluded that J showed signs of being an “alienated child”, although qualifying that because of J’s young age. She concluded that he

was   clearly    and   deeply   estranged   from    his    father   and   that estrangement must be addressed and reversed.

b)The   Court   appointed   psychologist    has expressed her position vigorously. She has stated that there has been act of conspiracy to deny the respondent access to J, and is very concerned about alienation. She comments that time works for the alienator.

c)There are signs that the situation in terms of J’s wellbeing is deteriorating.   The psychologist  in  her  latest  report of 23 May 2006

stated that J has been absent for 15½ days in term 1 and for

13 ½ days in term 2 since the beginning of the 2006 year.  His progress in reading and written work is below average. This is in respect of a child who is clearly of good ability and has previously  had a good school record.

d)The lawyer appointed by the Court for J supports the decision of the Family Court judge and in J’s interests opposes any further delay.

[18]   These factors all fully warrant the conclusion that any further delay will be contrary to J’s interests. It is essential that the position be resolved and that

this fixture not be lost. I note that there have been a number of reports by third parties prepared for the hearing, and those who have prepared the reports will be available. There is a Court appointed psychologist. There is also another clinical psychologist who was appointed to assist the process of contact between the respondent and J. She is available to give evidence. There is also a report

from a Social Welfare Officer prepared under s 132 of the Act. All this evidence  will be before the Court. The Principal of J’s school and his teacher have also

been subpoenaed to appear.

[19]   I cannot discern any error on the part of the Family Court judge. He has considered relevant matters and has not taken into account irrelevant matters. I see absolutely no indication of predetermination or bias. I note that there have already been a number of judicial criticisms of the appellant and her conduct. There also have been other last minute adjournment requests, some of which have been successful, some of which have been unsuccessful. Insofar as the Family  Court judge was being critical of the appellant and her efforts to co-operate with a process to obtain the best result for J, I consider that those criticisms were justified.

[20]   I also note, although this is not of great significance, that the appellant is unrepresented today although her previous lawyer ceased acting for her three weeks ago. While I can understand there can be difficulties in obtaining legal

representation at short notice, it is surprising that no lawyer has been able to be retained to at least appear today to seek the adjournment on her behalf.

[21]   I am very conscious of the fact that legal representation is a right and that it will be a disadvantage for the appellant when the hearing commences for her not to be represented. However, a decision on an adjournment request is one of balancing competing interests. It was entirely open to the Family Court judge to conclude that the balancing of those competing interests came down clearly in favour of the fixture proceeding. I decline this appeal.

………………………..

Asher J