Shackman v Smith
[2021] NZHC 3162
•23 November 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,
PLEASE SEE https://www.justice.govt.nz/family/about/restriction-on-publishing- judgments/
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2021-404-000852
[2021] NZHC 3162
UNDER THE Care of Children Act 2004 IN THE MATTER
of an appeal from a decision of the Family Court at Manukau on 12 April 2021
BETWEEN
JOHN SHACKMAN
Appellant
AND
GLORY SMITH
Respondent
Hearing: 17 August 2021 Appearances:
A E Ashmore for the Plaintiff
S R Jefferson QC and Z L Wackenier for the Defendant C Riddell as Lawyer for Child
Judgment:
23 November 2021
JUDGMENT OF ROBINSON J
This judgment was delivered by me on Tuesday 23 November 2021 at 5.00 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date:…………………………
SHACKMAN v SMITH [2021] NZHC 3162 [23 November 2021]
Introduction
[1] This case is about Sally.1 The appellant is Sally’s father. The respondent is Sally’s mother.
[2] The appellant and the respondent were married in 2004. Sally was born in September 2007. The parties separated in June 2012, when Sally was four. They agreed on a shared care arrangement for Sally and her older brother.
Procedural history
[3] In May 2015 the appellant issued proceedings in the Family Court seeking a parenting order in his favour. On 27 January 2017 the Family Court made a final parenting order by consent (“parenting order”). This provided for the parties to have shared care of Sally and her brother on a week-on/week-off basis. The parenting order was sealed on 11 May 2017.
[4] The agreement between the parties was short lived. The respondent issued fresh proceedings on 2 June 2017 seeking a warrant to enforce the parenting order. These proceedings involved Sally but were focussed more on her brother. Those proceedings were discontinued approximately two years later in May 2019.
[5] On 24 November 2020 the Family Court issued a warrant in the respondent’s favour to enforce the parenting order. Attempts to execute the warrant were unsuccessful. On 3 December 2020 the respondent applied to vary the parenting order; and the appellant applied to suspend both the parenting order and the warrant that had been issued to enforce it. All these applications were about Sally, not her brother who by this time had turned 16.
[6] The proceedings were consolidated and heard by Judge Burns in the Family Court on 22 March 2021. By then the respondent had not seen Sally since October 2020. In substance, each party sought orders to have the day-to-day care of Sally, with the other party having more limited time with her.
1 The names of the parties and their daughter have been changed in this judgment. The judgment may be cited as Shackman v Smith.
[7] Judge Burns effectively reinstated the shared care arrangement provided for in the parenting order.2 But first he suspended the parenting order for a fortnight and directed that Sally spend that time exclusively with the respondent. This was to enable Sally and her mother to begin to re-establish their relationship. By that time they had not seen each other for nearly six months.
Appeal
[8] In this appeal the appellant seeks orders that Judge Burns’ judgment be overturned, and that his application dated 3 December 2020 to suspend the parenting order be granted.3 The respondent does not cross-appeal in respect of her application dated 3 December 2020 to vary the parenting order.
[9] The upshot of this procedural history is that Sally has been the subject of litigation and other hostilities between her parents since she was seven year’s old. The dispute between her parents has become increasingly acrimonious. The parties say that their dispute is about what is best for Sally. Ms Riddell, who has been counsel for Sally since 2015, submits that what is best for Sally is for her parents’ disputes to stop.
[10] I set out and summarise below: the relevant factual background giving rise to the parties’ applications to the Family Court; Judge Burns’ judgment; the updating evidence; and the arguments on appeal.
Factual Background
Evidence – The parties
[11] The parties each filed affidavits in support of their Family Court applications, and affidavits in support of their notices of response. The appellant filed a supporting affidavit from his wife. The respondent filed supporting affidavits from her brother and two friends. The parties were both cross-examined in the Family Court.
2 [Smith] v [Shackman] [2021] NZFC 3002.
3 The temporary suspension of the parenting order has run its course so any appeal of that aspect of Judge Burn’s judgment is essentially nugatory.
[12] In the appeal the appellant filed updating affidavit evidence, to which the respondent replied. They were both cross-examined in relation to that updating evidence.4
[13] What is immediately apparent from the parties’ evidence is their constant disagreement, and their consistently contradictory perception of events. In many respects, the fact of their constant conflict and disagreement is more significant than the specific details of their various disputes. Sally is embroiled in that conflict. The parties have involved her in the conflict and she is deeply affected by it. In October 2020 the appellant effectively asked Sally to resolve the conflict by choosing one place to live. That is what has given rise to these proceedings.
The psychologists
[14] In the appeal Ms Riddell filed an affidavit from Dr Camilla Nguyen. Dr Nguyen is a clinical psychologist who specialises in working with adolescents. Dr Nguyen has been Sally’s therapist since January 2021, following a referral from Ms Riddell. A letter Dr Nguyen wrote to Sally’s doctor on 18 March 2021 (ie four days before the Family Court hearing) was exhibited in the Family Court and also relied on by the appellant on appeal.5
[15] Dr Nguyen was not examined in the Family Court but she was before me. Because of her clinical relationship with Sally Dr Nguyen did not (and could not) give independent evidence pursuant to s 133 of the Care of Children Act 2002 (Act). In the course of examining her counsel were necessarily sensitive to her professional obligations to Sally, including confidentiality. I refer to Dr Nguyen’s evidence in more detail below.
[16] There was no report prepared pursuant to s 133 of the Act specifically for the purposes of the Family Court hearing, or the appeal. However, in the context of the
4 Whilst cross-examination on appeal might be uncommon, I echo Wild J’s observations in S v O [Relocation] [2005] 25 FRNZ 259 (HC), at [64] cited by counsel: such evidence can serve two purposes, first to bring the position up to date, and secondly to give the appeal court “a grasp of the parties personalities” which it would not otherwise have had.
5 Below, at [38].
previous litigation three s 133 reports were prepared by Dr Briar McLean. These were dated 5 February 2016, 15 November 2017, and 26 November 2018. These were in evidence in the Family Court, and in the appeal. They are not current, and in many respects focus more on matters then affecting Sally’s brother rather than Sally. However, Dr McLean’s reports remain relevant. They provide background and context to issues that arise in this appeal. In some ways Dr McLean’s reports predict the regrettable position in which Sally finds herself today.
Events leading to Family Court proceedings
[17] As noted above Sally has been living with each of her parents on a week- on/week-off basis since she was four. This was formalised in the Family Court’s parenting order made by consent in January 2015. Litigation and disputes between Sally’s parents have been constant since then.
[18] Since around mid-2017 Sally’s older brother has been living almost exclusively with the appellant. The arrangements between the parties for the care of Sally’s brother were a primary focus of the earlier litigation. The respondent issued proceedings to enforce the parenting order four months after it was made. She was concerned that the appellant was alienating Sally’s brother away from her.
[19] The appellant defended those proceedings. He denied doing anything to turn Sally’s brother away from the respondent. He said Sally’s brother just preferred to stay with him (together with his wife and her children).
[20] During the course of those proceedings the parties took various therapeutic interventions to try to resolve matters. The therapy did not lead to a resolution satisfactory to both parties. On 7 March 2019 the respondent applied to discontinue the proceedings, nearly two years after she had issued them.6 The respondent says she discontinued the proceedings in the hope that, without the pressure of litigation, her relationship with her son would in time be restored. That has not happened. The respondent sees her son infrequently. That is understandably upsetting for her. She remains firmly of the view that he has been alienated by the appellant. She remains
6 The proceedings were eventually discontinued after a dispute between the parties about costs.
hopeful that they can rebuild their relationship when he gets older. In the meantime she says “I believe I must fight for my daughter’.
The appellant tells Sally to choose where to live
[21] Throughout this time the parties continued to care for Sally equally in accordance with the parenting order. However, in around August 2020 the appellant decided that the shared caring arrangement provided for by the parenting order was unsuitable. He deposes he told Sally that “it is time you make a decision on where you wish to live”. He suggested that Sally should choose to live with him and his wife (and therefore Sally’s brother and step-siblings) “under our roof and rules” and spend “some weekends that she wants with her mother for fun times”. The appellant says he told Sally that if she wished to stay with her mother then he was “ok with this”, and she would still be able to come to his house “though not back and forth”.
[22] The appellant says he required Sally to make this decision because her behaviour had been deteriorating over the previous nine months. He blames this on the respondent. He says that after returning from her mother’s each week Sally would be anxious, confronting, argumentative, and would lie to others in the house. He said Sally was starting to get into trouble at school, her friendships were suffering, and her behaviour was putting tension on his household.
[23] The appellant believes that the respondent and the shared care arrangement caused Sally’s anxiety and behavioural difficulties. That is why he told Sally she had to choose where to live, and why he suggested she choose to live with him. He did not discuss any of this with the respondent. He says he understands that Sally did so.
[24] The respondent confirms that Sally told her that the appellant had asked her to choose one home to live in. She reports that Sally understood her choices to be: to stay with the appellant and see the respondent from time to time; or to live with the respondent but then miss out on life with the appellant and her brother (and step- siblings).
[25] The respondent says that the appellant’s ultimatum made Sally highly anxious. Sally started cutting herself. The respondent took Sally to her GP who Sally told about
the ultimatum. In August 2020 Sally cut herself at school. The school contacted the parties about this. In his affidavit evidence the appellant explains that although he understands cutting can be serious, in Sally’s case he thought she was just seeking attention from her mother. The appellant says he thinks Sally has previously feigned injury to get attention from her mother. The evidence includes a lengthy and remarkably blunt text message that the appellant sent Sally to that effect.
[26] On 17 October 2020 the respondent dropped Sally off to the appellants home. Sally had spent an extra night with the respondent so that they could attend a concert together. On 22 October 2020, the day before the appellant was due to return Sally to the respondent’s care, she received a text from Sally saying that she would be staying with the appellant. Sally said she would call the respondent in a few days, but she did not.
[27] On 26 October 2020 Sally’s mobile number was changed. On 30 October 2020 the respondent received a telephone call from the Inland Revenue Department (IRD) to advise that the child support payments were to change now that Sally had left her care. IRD later advised her that she would have to pay child support to the appellant because Sally was in his sole care. This appears to have been based on information the appellant had given IRD.
[28] The appellant did not discuss these changes to Sally’s care arrangements with the respondent. He took no steps to vary the parenting order. Instead, he unilaterally breached the parenting order. He continues to argue that these changes were what Sally wanted because they were consistent with the choice he required her to make.
Warrant to enforce the parenting order
[29] The respondent says she messaged Sally and tried unsuccessfully to call her. On 24 November 2020 the respondent obtained a warrant to enforce the parenting order. The respondent, through her solicitors, contacted the appellant to try to enforce the warrant but was unsuccessful. The appellant says he was not prepared to “man handle” his daughter to go somewhere she did not wish to go.
[30] On 27 November 2020 the Police attended the appellant’s home to uplift Sally. A friend of the respondent known to Sally was with them. The Police attended for two hours. The affidavit evidence filed by both the appellant and the respondent’s friend demonstrates that the situation was highly charged, and deeply distressing for Sally.
[31] The upshot is that Sally said she did not wish to return to the respondent and she did not do so. The Police ultimately determined that they were unable to execute the warrant without forcibly removing Sally from the appellant’s house which they were not prepared to do. However, they advised the appellant they would return the following Friday (4 December 2020) to pick up Sally.
[32] Judge Burns noted that the appellant was questioned extensively about the events of that evening. The Judge found that it was “clear from [the appellant’s] evidence” that he did not tell Sally she should comply with the Court order, or that he would apply to vary the parenting order. He essentially remained passive and told Sally she could do what she wished. In this way he took the law into his own hands and was in breach of the Court order. Having read the affidavits and the notes of evidence I agree with the Judge’s findings in this regard.
The 3 December 2020 applications
[33] On 3 December 2020, the day before the Police were due again to enforce the Family Court warrant, the appellant applied to suspend the parenting order. The appellant made that application on the grounds that he was concerned for Sally’s safety, in particular that she had told him that if the warrant was executed she would run away from the respondent’s home in the middle of the night.
[34] On 3 December 2020 the respondent also applied without notice to vary the parenting order. She did so partly on the basis that the appellant had breached the order, and made it impossible for the police to execute the warrant. She also said there were “significant concerns for the safety and wellbeing of Sally’s whilst in the [appellant’s] care”.
[35] Both applications went to Judge Somerville in the first instance. On 4 December 2020 her Honour expressed concerns that “a 13-year old was preventing
the warrant being executed by her refusal to go with the Police”. She thought the matter required further investigation and requested the “urgent reappointment of lawyer for child”. The Judge suspended the warrant to enforce the parenting order until the lawyer for the child reports.
Ms Riddell’s first report
[36] On 14 December 2020 Ms Riddell filed her first report into Sally’s situation. By then she had spoken privately with Sally. Ms Riddell expressed “serious concerns about Sally’s emotional and psychological welfare and her ability to have a relationship with both parents.” She said the matter needed to be “dealt with urgently to avoid Sally being in the impossible situation of having to choose with which parent she is to live and to make orders and directions that will promote Sally’s relationship with both parents”. She reported that:
(a)Sally has been forced to make a painful decision which has caused her significant distress.
(b)the decision she has made will potentially have lifelong consequences.
(c)neither parent is providing the support for the other parent which would assist Sally to manage her relationship with her parents.
(d)robust court intervention is required to determine the cause of Sally’s distress and directions made to remove the stress from Sally’s shoulders.
Dr Nguyen’s 18 March 2021 letter
[37] This was the context in which Ms Riddell referred Sally to Dr Nguyen in January 2021. By the time of the Family Court hearing on 22 March 2021 Dr Nguyen and seen Sally three times. By the time of the appeal, 16 times. Ms Riddell reports that Sally has developed a good rapport with Dr Nguyen and finds their sessions helpful. Sally has said, through Ms Riddell, that she would like these sessions to continue.
[38] On 18 March 2021 Dr Nguyen wrote to Sally’s GP. The letter is an important part of the appellant’s case so I set it out in full:
Sally has been the subject of a dispute between her parents since she was aged 7 years. Understandably, this has been very difficult on Sally’s emotional and psychological wellbeing. Both parents have agreed it would be helpful for Sally to have access to individual therapy to process some of the past trauma and current emotional distress. Sally is currently residing with her dad full- time. One of the main stressors in Sally’s life currently is the Family Court hearing on 22 March 2021.
I met up with Sally and [the respondent] today… [The respondent] was understandably concerned about Sally’s mental health as he had found a cocktail of pills in her bedroom. Sally reported that she had been collecting pills for some time. Sally is currently showing symptoms of depression with suicidal ideations. Sally has planned to overdose on pills if the Family Court decides on 50/50 parental custody. I am concerned about her mental health and risk and have advised her farther to book in an appointment for Sally to see yourself urgently. I would appreciate if you could assess her risk and make a referral to her local Child and Adolescent Mental Health Service (CAMHS). In the meanwhile, [the respondent] has agreed to remove all medications in the house. I have also given [the respondent] the telephone number to the Crisis team.
[39] This letter was placed before Judge Burns when he came to decide the matter four days later, on 22 March 2021. Dr Nguyen later confirmed before me that she was unaware that her letter would be placed before the Court, but that she would not have written it any differently if she had known it would be used for that purpose.
[40] The appellant relies on this letter in support of his submission that Judge Burns “failed to take into account the potential negative impact upon the child by resumption of contact [with the respondent]”. The appellant submits that Judge Burns chose to do this “purposely” because he blamed the appellant, and in doing so failed to carry out the enquiry into Sally’s welfare and best interests as required by s 5 of the Act.
Family Court Judgment
[41] Judge Burns recorded his task as being to “assess the evidence and make findings and then determine the most appropriate way (if at all) to restore the relationship between Sally and her mother”.7 He described the issue in the case as being “whether the Court accepts the unilateral action of the [appellant] and Sally in
7 [Smith] v [Shackman], above n 2, at [10].
breaching the Court order or enforces the Court order as it presently is or varies it. This may involve an assessment of placing Sally in the day to day care of her mother”.8
[42] Judge Burns recorded that the respondent “squarely argued that the case was one of alienation”.9 He quoted extensively from counsel’s submissions which included reference to academic texts, articles, seminar papers and judicial authorities.10
[43] On the other hand, Judge Burns summarised the appellant’s argument as being that the estrangement between Sally and her daughter was realistic, Sally having been “caught in the middle of entrenched parental conflict largely caused by the mother and exacerbated by members of her maternal family”.11 He quoted from counsel’s submissions which in turn cited various aspects of Dr McLean’s three earlier reports.12
[44] Judge Burns also set out Sally’s views. He quoted from Ms Riddell’s report setting out those views,13 and he set out in full his minute of the judicial interview he conducted with Sally on the day of the hearing.14
[45] Ultimately, Judge Burns found that “a lot of the features of alienation identified by [counsel for the respondent] have been proven in this case and there is alienating type of behaviour”.15 He set out his findings in support of that conclusion at paragraph
[23] (i) – (xxiii) of his judgment. These findings are extensive, and highly critical of the appellant. Most importantly, Judge Burns found that:
(a)the appellant gave Sally an ultimatum requiring her to choose between her parents. This was not a child-focussed approach and placed Sally in an impossible position.16
8 At [13].
9 At [20].
10 At [20] .
11 At [22].
12 At [21].
13 At [11].
14 At [12].
15 At [25].
16 At [23](iii), (xvi).
(b)the appellant (and his wife) had exposed Sally to negative views about the respondent and had failed to shield her from the overt parental conflict.17
(c)the appellant has undermined Sally’s ongoing relationship with her mother, and the mother’s parenting.18 Sally’s description of her mother (for example as being “bi-polar”, only wanting Sally for the money, and “having fake emotions”) tends to show that she has been exposed to overt negative statements the appellant or others have made about the respondent.19
(d)the appellant continues to have very strongly held negative views and feelings about the respondent and sees himself in competition with her.20
(e)Sally has found it very difficult being exposed to the respondents “serious emotional reaction” of distress and grief at losing her relationship with her son and the risk of losing her relationship with her daughter.21 But there was no evidence before the Court that prior to October 2020 the relationship between Sally and the respondent was dysfunctional or unhealthy.22
(f)both parents have used Sally inappropriately as a “message-giver” to the other, and she has had adult issues confided in her.23
(g)the respondent would be supportive of Sally’s relationship with the appellant, his wife and their extended families; but the appellant will not do so in reverse.24
17 At [23](iv).
18 At [23](vi), (xvii).
19 At [23](ix), (xxii).
20 At [23](vii), (xi).
21 At [23] (xi), (xiii).
22 At [23](xviii).
23 At [23] (xii).
24 At [23] (xxiii).
[46] Ultimately Judge Burns found that there had been “alienating type behaviour” by the appellant.25 Importantly, Judge Burns recorded that:26
I do not think that father has done it with a malicious or deliberate intent. I think he is so overwhelmed by the strongly-held negative feelings that he has towards the respondent that he has failed to shield his two children from those negative views, with the result that they have been influenced against her.
[47] Although Judge Burns much preferred the respondent’s case over the appellant’s, the respondent was not successful in her application for day-to-day care. Instead, Judge Burns suspended the parenting order for a fortnight to enable Sally and the respondent to begin to rebuild and repair their relationship after five months apart. After that Judge Burns restored the week-on/week-off shared care arrangement provided for in the parenting order.
[48] In making these orders Judge Burns acknowledged the relevance of Dr Nguyen’s letter of 18 March 2021 in addressing Sally’s safety, and the need to make orders to determine “what is in the best interests and welfare of Sally”.27 The Judge was well aware of Sally’s “clearly expressed views” and recorded that he was “expecting considerable resistance” to the orders he made.28
[49] Nevertheless he considered that the orders were “absolutely necessary and in the best interests and welfare” of Sally in order to repair the damage that had been done, and to re-establish the relationship between her and the respondent.29 He acknowledged that this would be “a significant challenge” for the respondent.
[50] In order to manage the risks to Sally, Judge Burns made it a condition of his order that Sally continues in her relationship with Dr Nguyen. He required appointments to be made immediately prior to her going into the respondent’s care. The Judge also granted leave for either party to come back to him for urgent orders on
25 At [25].
26 At [25].
27 At [24].
28 At [30].
29 At [26] and [30].
24 hours’ notice. He foreshadowed that this might require him to interview Sally again. He also directed that Ms Riddell’s appointment continue.30
[51] Judge Burns also directed that if Sally did not go into the respondent’s care on 16 April 2021 then the appellant was to attend the Family Court on 23 April 2021 for the Court to determine whether the appellant should be held in contempt, and if so whether he should be placed into custody until the contempt is purged.31 The Judge was highly unimpressed that the appellant had unilaterally breached the parenting order and essentially frustrated the execution of the warrant. In the result Sally did go into the respondent’s care on 16 April 2021, so nothing came of this direction. But the direction clearly caused the appellant some consternation. He blamed the respondent. Unfortunately, Sally also came to learn of it and she blamed the respondent too. 32
The grounds of appeal
[52] The appellant’s Notice of Appeal sets out four grounds of appeal which I set out in full:
(a)His Honour accepted and relied upon expert evidence of a psychological nature concerning the concept of parental alienation which was not adduced correctly by an expert but rather directly from counsel and from His Honour’s own personal enquiry;
(b)His Honour considered the task before him was to classify the family dynamic as either parental alienation or estrangement, and in doing so failed to carry out the individualised analysis required by s 4 of the Care of Children Act 2004;
(c)His Honour failed to take into account the potential negative impact upon the child by resumption of contact and His Honour purposely chose to disregard this as he considered it to be the responsibility of
30 At [26].
31 At [29].
32 See below at [65].
father; in doing so His Honour failed to carry out the enquiry required by s 5 of the Care of Children Act 2004; and
(d)His Honour disregarded the views of the child and accordingly did not discharge his obligation under s 6 of the Care of Children Act 2004 – instead adopting a binary analysis of the child’s view not contained in the legislation.
[53] In essence, the appellant says that Judge Burns was wrong to focus on whether Sally’s failing relationship with the respondent was caused by alienation or estrangement. Instead, the Judge should simply have analysed the relative advantages and disadvantages for Sally in the competing care proposals. The appellant says the Judge incorrectly blamed the appellant for the breakdown of Sally’s relationship with her mother, and incorrectly focussed on restoring that relationship. In doing so the Judge failed properly to focus on Sally’s best interests. He disregarded Dr Nguyen’s letter, and minimised the risks of forcing Sally to return to her mother’s care against her strong objections.
[54] In relation to the final point the appellant was particularly critical of Judge Burns’ finding that “Sally’s views have been influenced and I do not think they are truly her own”.33 He says that Judge Burns erred by dividing a child’s views into a “binary pair”, namely: “true views” which the Court will take into account, and “untrue views” which can be safely disregarded. Similarly, the appellant criticises Judge Burns’ finding that there is no “objective support” for Sally’s perception that she was unsafe in her mother’s care; 34 and that “Sally’s views are not based on reality but have been influenced”.35
[55] The respondent submits the findings made by Judge Burns and the outcome he reached were open to him on the evidence before him. She says the Judge effectively undertook the required ss 4 and 5 analysis in reaching his decision, including the
33 At [23](xiii).
34 At [23](xiii).
35 At [23](xvi).
potential impact of his decision on Sally’s safety. Finally, she submits that Judge Burns properly took Sally’s views into account in reaching his decision.
[56]I briefly summarise the relevant legal principles, and the updating evidence.
Legal Principles
Approach to Appeal
[57] Appeals from the Family Court are general appeals, not appeals from the exercise of a discretion.36 The principles set out in Austin Nichols & Co Inc v Stichting Lodestar apply.37 The appellate Court is to reach its own view on the merits of the case. Its decision is a matter of assessment and judgment. The appellant has the onus of satisfying the appellate Court that the decision under appeal is wrong and should be altered. It is for the appellate court to assess what, if any, weight to place on the reasoning of the lower Court.
Care of Children Act 2004
[58] In applying the Act the first and paramount consideration must be the welfare and best interests of a child in his or her particular circumstances.38 In considering this the Court must take into account the principles in s 5 of the Act; and may take into account the conduct of the person seeking to have a role in the upbringing of a child to the extent that that conduct is relevant to the child’s welfare and best interests.39
[59] The relevant principles relating to a child’s welfare and best interests are set out at ss 5(a) – (f) of the Act. In Bashir v Kacem the Court of Appeal considered that:40
[T]he Judge should have referred to all the s 5 principles, briefly indicating which were not relevant and why, before discussing those which were relevant in more detail. As Rodney Hansen J notes in AD v KT [Parenting order], such an approach is desirable as it helps to avoid unnecessary argument about whether the Judge has or has not considered particular principles.
36 Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1, at [33].
37 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
38 Care of Children Act 2004, s 4(1).
39 Care of Children Act 2004, s 4(2).
40 Bashir v Kacem [2010] NZCA 96, at [54] citing AD v KT [Parenting order] [2008] NZFLR 761 (HC), at [15].
[60] Counsel for the respondent accepts that Judge Burns did not expressly analyse the case with reference to the s 5 principles but submits that such an analysis can be distilled from his judgment. Whilst I tend to agree, that distillation is not entirely straight-forward and ideally would not be necessary. Nevertheless, I agree with Hinton J in Brown v Wilson that to the extent this is an error it can be remedied by the High Court carrying out the analysis itself.41
Updating Evidence
[61] Once again the parties’ updating evidence confirms their constant disagreement and contradictory perceptions.
The appellant
[62] The appellant says that the Family Court orders have been highly detrimental for Sally and have caused her behaviour and her mental health to deteriorate. He says the two-week period Sally was ordered to spend with the respondent left her feeling “traumatised and helpless”. He says Sally was “distraught throughout the entire two weeks”; and that during this time Sally was texting Ms Riddell and Dr Nguyen to say that she was scared of the respondent screaming at her.
[63] The appellant says Sally’s “extreme levels of distress” continues. He says this is reflected in her behaviour which has deteriorated since she has been forced to return to the respondent. He refers to incidents of Sally lying, buying and smoking marijuana, vaping, stealing and sneaking out to meet up with older boys. He says she has lost friends and resumed arguing with everyone in the house.
[64] The appellant says all this has occurred since April 2021 when the Family Court orders took effect, prior to which he says she was a “happy, healthy normal 13- year-old girl”. He clearly attributes the decline in Sally’s behaviour and mental health to the restoration of the shared care arrangement with the respondent. Moreover, he says that the respondent has obstructed the therapy which could have helped Sally.
41 Brown v Wilson [2016] NZHC 262, at [56]-[58].
The respondent
[65] The respondent denies that Sally was traumatised, helpless, distraught and distressed during their fortnight together. She says the opposite is true. She says there was a settling in period given they had not seen each other for six months, but that their time together was otherwise relaxed and passed without issues. She says they had a nice time away on holiday. She denies that she was “intensely screaming” or that Sally was scared. She says Sally had a FaceTime session with Dr Nguyen in private, after which Sally appeared happy and comfortable.
[66] The respondent says there was an incident when Sally became upset at her and blamed her for the appellant having been threatened with prison. She says Sally told her she had seen the “court report”, and that the appellant had not done anything wrong. Sally blamed the respondent for everything and said she (the respondent) was the reason she (Sally) wanted to kill herself.
[67] The respondent says that she and Sally have talked this through as part of rebuilding their relationship. She says they continue to spend quality time together and that Sally is safe, protected and supported in her care. The respondent acknowledges that there are some behavioural issues that she and the appellant will need to manage, but she disagrees with the appellant’s suggestion that Sally is a “delinquent mess” who has “lost all sense of right and wrong”. In any event she strongly denies that she is the cause of Sally’s behavioural and other difficulties.
[68] The respondent says that on various occasions since the Family Court hearing the appellant has continued to make things difficult for her. For example, when the week-on/week-off regime restarted the appellant required Sally to change out of her school uniform before returning to her mother on Friday afternoon, putting the respondent to the unnecessary expense of buying a new uniform over the weekend. The appellant blamed the respondent when Sally did not return home one afternoon. The appellant has refused to pay half the costs of Sally’s glasses (which the respondent acknowledges she purchased without consulting him). The respondent says the appellant has not replied to her emails.
[69] Cross-examination revealed that there is merit in the respondent’s complaints. The appellant’s resentment and undermining behaviours identified by Judge Burns have continued.
Sally’s mental health support
[70] As noted above, Judge Burns required Sally to continue seeing Dr Nguyen. Following Dr Nguyen’s letter of 18 March 2021 Sally has also been seeing a psychiatrist and a social worker from CAMHS.
[71] Dr Nguyen’s evidence is that Sally was not happy with the Family Court’s decision because she wanted to live with the appellant permanently. The transition back has proven difficult across both homes where Sally has pushed boundaries with her parents. She reported that Sally has presented with a depressive episode, generalized anxiety disorder, poor self-esteem and some behavioural issues. There have been unhelpful coping strategies. Dr Nguyen observed that Sally’s mental health has deteriorated over the past couple of months. She considered that Sally and her family would benefit from ongoing psychiatric and psychological support from CAHMS. Dr Nguyen’s affidavit attached a letter she wrote to Sally’s GP to this effect.
[72] There was also evidence of an “incident” at Sally’s school where Sally had spoken to someone about self-harm and suicide ideations. The appellant points to this as further evidence to show that the Family Court’s decision to return Sally to the shared care of the respondent was wrong. Dr Nguyen was examined about this incident. She was not able to speak in detail about it due to her confidentiality obligations to Sally. She was able to say that she did not consider it had triggered her obligation to breach Sally’s confidence in order to keep her safe.
[73] At the hearing Dr Nguyen confirmed that she had seen Sally recently, and remains of the view that Sally’s mental health is deteriorating. She referred to the continuous risk of suicidal ideations, as well as her behaviour at school and outside the home.
CAHMS
[74] The appellant relies on a letter dated 9 July 2021 written by a CAHMS psychiatrist to Sally’s GP. The letter is about Sally’s diagnosis and her treatment.
[75] The psychiatrist observes: “As you are aware, Sally has experiences of prolonged exposure to relational stresses”. She goes on to diagnose that Sally is suffering from developmental trauma and substance use. She prescribes medication. She says healing is going to be a “longer term process”.
[76]The appellant says that this letter:
[C]onfirms the extent of the harm my daughter endured from being forced back to her Mum’s care against her expressed wishes. The diagnosis of developmental trauma and substance use is upsetting and shocking. However, it has not come as a surprise to me as I have watched Sally go downhill since April.
[77] I do not agree with the appellant’s interpretation of this letter. It does not “confirm the extent of the harm [Sally] endured from being forced back to [the respondent’s] care”. On the contrary, it says that Sally has experienced prolonged relationship stresses. The evidence is clear that these prolonged relationship stresses go back well before the Family Court’s orders in April 2021, and that this is what has caused Sally’s developmental trauma. It is also clear that the appellant has contributed to those prolonged relationship stresses, but that he does not perceive things that way.
Section 133 reports
[78] It is in this context that the earlier s 133 reports are useful. They help explain the “prolonged relational stresses” that have led to Sally’s development trauma. In this way they shed light on Sally’s “particular circumstances” in which her welfare and best interests must be assessed. 42
[79]In the first s 133 report dated 5 February 2016 Dr McLean reported that:
42 Care of Children Act 2004, s 4.
(a)she had observed the appellant’s “anger and animosity” towards the respondent, and that this had influenced Sally’s brother to hold similar views.
(b)Sally and her brother have been placed in the middle of parental conflict.
(c)the “primary risk” with the current arrangement is “[the appellant’s] inability to support [the respondent’s] role as mother to the children, which appears to underpin the parties’ difficulties with co-operative parenting. This has been evident in his general attitude towards [the respondent] and in the various ways he appears to have influenced [Sally’s brother’s] views. If [the respondent’s] behaviour is not addressed then the risk to the children…is that they will continue to be exposed to the parental conflict and experience ongoing stress and confusion”.
[80] In her updated report dated 15 November 2017 Dr McLean reported that the appellant’s continued minimisation of the respondent’s parental role, together with his undermining of the respondent’s relationship with Sally’s brother were a “major contribution” to his reluctance to want to be with her.
[81] Most importantly, in the updated report dated 26 November 2018 Dr McLean observed that Sally (then 11) was under “immense pressure” as a result of the ongoing conflict between her parents. Dr McLean warned that Sally may wish to see less of either of her parents “if the stress Sally feels becomes too great”. Sadly, that appears to be what has happened.
[82] Dr McLean refers to “blame by both parents, polarisation of both families and high conflict between all the adults”. She observed that Sally was becoming involved in the conflict and inappropriately carrying information between the two households. Importantly she observed that because of each parent’s “significant mistrust” of the other:
[I]nformation they receive about the other household tends to be generally perceived through a negative lens. The issue is not whether this information is accurate or not, but that it places Sally in a highly pressured and inappropriate role, where her loyalties are being constantly tested and where she may feel responsible for any resulting action taken. (my emphasis)
[83] Importantly, Dr McLean did not consider the appellant to be solely responsible for the stress and pressure being imposed on Sally. Amongst other things, Dr McLean observed that the respondent could be overly emotional and insufficiently respectful of Sally’s independence and privacy. Predictably, the appellant relied on those criticisms in the Family Court.
[84] However, Dr McLean considered that the appellant also contributed significantly to Sally’s stress and pressure. The appellant continues to overlook his contribution in order to blame the respondent entirely. His strained interpretation of the psychiatrist’s 9 July 2021 letter demonstrates that.
Sally’s views
[85] In the Family Court Sally’s views were set out in Ms Riddell’s report from which Judge Burns cited extensively.43 Judge Burns also ascertained Sally’s views directly in his judicial interview with her and recorded those views in a minute which he set out in full.44 At that time Sally had not seen her mother for six months. Her views then are best summarised in what she asked Ms Riddell to “tell the Judge”: she wants to live with her dad; she wants her mum to leave her alone; and she wants the Court proceedings to go away.
[86] Sally described her mother as being “unhealthy” and “bi-polar”. Amongst other things Ms Riddell also reported that:
8.1.9 Sally told me that when she was living with her mother she felt like she was starting to behave like her mum which had caused some issues between Sally and her father. Sally said that she was learning bad behaviour from her mother, but that had all changed now that she is living with her father.
8.1.10 Sally is scared to see her mother because she knows if she sees her mother happy she will want to live with her again and she doesn’t want to have to through this whole process again.
43 [Smith] v [Shackman], above n 2, at [11].
44 At [12].
[87] Ms Riddell also presented Sally’s views in the appeal. Ms Riddell had met with Sally on 14 May 2021 (two weeks after the week-about shared care arrangement had been restored); and again on 6 August 2021 (11 days prior to the appeal hearing).
[88] Ms Riddell reports that on 14 May 2021 Sally said she still did not want to see the respondent. She complained to Ms Riddell that the respondent “hassles her all the time”, wants to “organise her life for her”; and needs to stop “turning everything into a drama”. She told Ms Riddell that she wants to do her own thing and have her own time.
[89] Sally told Ms Riddell that over the next 12 months she wanted to: live full time with the appellant; see the respondent when she (Sally) decides; do school on-line; continue playing hockey; go snowboarding; and keep seeing Dr Nguyen. She said she wants the respondent’s behaviour to change.
[90] Ms Riddell reports that by 6 August 2021 Sally’s views about where she wanted to live were not as strong as they had been previously, but she did have some strong views about her parents and current living arrangements.
[91] Sally told Ms Riddell that she wished she was old enough to see her parents when she wants to and not be dictated to by court orders. She said that if she were to live fulltime with the respondent she would like to decide for herself when she would see the appellant. And vice verse if she were to live fulltime with the appellant.
[92] Counsel each referred to some of Sally’s particular comments as quoted by Ms Riddell. It is worth setting them out in full:
I want to be left alone
I don’t like half time at each house it is irritating and stressful
Changeover on Friday is annoying as her weekend is gone whilst she adjusts to the different house and rules every week
I don’t like weekabout I would rather one house or the other If had to choose, dad’s house preferred.
Things have improved with mum. She never understands about teenagers being moody but she is understanding that more. She’s kinda getting it.
I wish mum and dad would sort their stuff out.
Never met any other parents like mine. They need to stop minding about each other’s business and move on.
[93] Ms Riddell reported that an “overwhelming theme” of her discussion with Sally was that she “wants to be left alone and for her parents to stop pressurising her and for all the court stuff to go away”.
[94] Ms Riddell submitted that the root of Sally’s problem is the behaviour of her parents. She says Sally does not care exactly which of them is to be blamed, she just wants their fighting to stop. She does not want to have to choose which parent to live with.
Discussion and Analysis
[95] The essential question is whether Sally’s welfare and best interests will best be promoted by going into the appellant’s sole care (ie allowing the appeal); or continuing the week-about shared care arrangement (ie dismissing the appeal). In order to determine which of the options is best for Sally in her particular circumstances I must take into account the principles in s 5 of the Act, and the views that she has expressed through Ms Riddell.
[96] Mr Ashmore for the appellant submits that there is clear evidence to show that the current arrangement (ie the week-about shared care arrangement reinstated by Judge Burns) is not working. He says this is not in Sally’s interests and is causing accelerating harm to her. He points to the recent medical evidence which he says indicates the worsening situation for Sally. He submits that the Court must not ignore that evidence, nor be distracted by abstract debate about whether Sally has been alienated. He says the evidence clearly shows that the safest option for Sally is to allow her to return to her father’s care and allow a more organic relationship with her mother to evolve.
[97] When the appellant gave evidence before me he suggested that another option would be for Sally to spend the weeks with him, and the weekend or every second weekend with the respondent. When the respondent gave evidence she indicated she would not agree to that. In any event, there is no application before me for orders to implement a shared care arrangement with that effect, and no direct evidence as to whether that would be in Sally’s best interests.
[98] Ms Riddell asserted that if Sally’s parents were able to put aside their years of conflict and concentrate on Sally’s welfare together in a united way a lot of Sally’s anxiety would go away. I agree. That is overwhelmingly clear from the evidence and, perhaps most importantly, from Sally’s own most recent comments to Ms Riddell.
[99] Dr Nguyen went further. In response to a question from Mr Ashmore, counsel for the appellant, Dr Nguyen agreed there is a risk that Sally’s mental health will continue to deteriorate “if things don’t change”. But she told Ms Riddell that the change that would most improve Sally’s mental health would be if her parents change and start parenting collaboratively.
[100] The appellant’s case proceeds on the basis that this will not happen. These are Sally’s “particular circumstances” in which I must determine what is in her welfare and best interests.
Section 5 Principles
[101] Section 5(a) provides that a child’s safety must be protected, and a child must be protected from all forms of violence from all persons including members of their family. This is mandatory. Violence includes psychological violence.
[102] Initially both parties made their application on the basis that they had concerns for Sally’s safety and well-being. However, neither party seriously argued that Sally is unsafe in the care of the other. The focus of the appellant’s argument is that the “forced reintroduction of shared care” has caused Sally’s mental health to deteriorate. He says that unlike Judge Burns I have the benefit of evidence to that effect.
[103] Although Judge Burns did not expressly refer to the mandatory requirement to protect Sally’s safety, I agree with counsel for the respondent that he was clearly mindful of this when he made his orders. He was aware that Sally had spoken of suicide if she was returned to her mother’s care. He was also aware of the risk of Sally running away. To manage those risks he made it a condition of his orders that Sally continue to see Dr Nguyen, and he gave leave for either party to come back to him for further orders on 24-hours’ notice.
[104] On the evidence before me I do not consider that Sally’s safety would be better protected by suspending the parenting order and placing her into the appellant’s care. I do not overlook or minimise Sally’s suicidal ideations as described in Dr Nguyen’s letter of 18 March 2021. However, the evidence before me shows that those risks are being managed appropriately. When Sally last saw Ms Riddell, more than three months after Judge Burns restored the parenting order, Sally’s views about living with her mother had softened considerably.
[105] As I have already made clear, I do not accept the appellant’s submission that the “forced reintroduction of shared care” is the cause of Sally’s recently diagnosed developmental trauma. Her psychiatrist says this is due to prolonged relational stresses and will require longer term healing. I do not consider that healing process will be enhanced or shortened by placing Sally into the appellant’s care. I consider both her parents will need to be involved.
[106] Nor do I agree with the appellant’s submission that Sally’s recent behavioural difficulties demonstrate that the shared care arrangement is unsafe for her. In my view the evidence is clear that Sally’s behavioural issues are also a result of years of relational stress and “immense pressure” from her parents, as identified by Dr McLean back in 2018.
[107] I accept Ms Riddell’s submission that the shared care arrangement only broke down when the appellant gave Sally the ultimatum requiring her to choose one place to live. Sally was not displaying mental health difficulties prior to that. Ms Riddell says Sally did not want to have to choose where to live. By requiring her to do so the appellant only added to her stress and pressure which was already “immense”.
[108] Section 5(b) provides that a child’s care, development and upbringing should be primarily the responsibility of his or her parents. There is no suggestion here that anyone other Sally’s parents should have that responsibility. The case is about how they share that responsibility, if at all. I agree with Judge Burns that, notwithstanding all the difficulties to date, it is still best for Sally that her parents share that responsibility equally.
[109] In sharing that responsibility, both parties need to be aware that in less than two years Sally will be 16 and no longer a child within the jurisdiction of the Family Court. She will be able to choose where she wants to live. In the meantime, she is going to need care and support from both of her parents in order to address the developmental trauma that has recently been identified. This is going to require them both to do things differently.
[110] Section 5(c): provides that a child’s care, development and upbringing should be facilitated by ongoing consultation and cooperation between his or her parents. Perhaps the most difficult aspect of this case is that both parties seem to accept this is impossible - notwithstanding that this is precisely what Sally, her counsel and her psychologist say she needs most from them.
[111] Section 5(d): provides that a child should have continuity in his or her care, development and upbringing. This principle favours a continuation of the shared care arrangements that have been in place for nearly nine years. Even putting to one side the disregard for Court orders, I do not consider the appellant had any good reason in October 2020 to require Sally to choose one parent with whom to live. The evidence I have seen would not have supported a proper application by the respondent to suspend or vary the parenting order at that time.
[112] Section 5(e): a child should continue to have a relationship with both of his or her parents and a child’s relationship with his or her family group should be strengthened. Judge Burns clearly considered this principle, again without expressly referring to it. He found it was inappropriate for the appellant to have required Sally to choose with which parent she wished to live. He found that Sally should continue
to have a relationship with her mother, notwithstanding that Sally had resolved the dilemma her father had handed her by choosing to live with him.
[113] I agree with Judge Burns. It is in Sally’s best interests to have a relationship with both her parents. Another of the difficulties of this case is that the evidence shows both parties to be highly capable parents who want to be actively involved in Sally’s life. Unfortunately, the resentment following the breakdown of their own relationship means they do not support each other in that, even though it would be in Sally’s best interests for them to do so. In particular, I accept the respondent’s evidence that the appellant and his wife do not consider she can do anything right, and do not support her relationship with Sally.
[114] Section 5(f): requires that a child’s identity (including culture, language, and religious denomination) should be preserved and strengthened. This principle is not relevant here.
Sally’s views
[115] The appellant says that Sally could not have been clearer that she wanted to stay in his care. He submits that Judge Burns disregarded Sally’s views because he thought she had been influenced by the appellant. He says the Court should consider the impact on Sally of acting contrary to her stated views, regardless of the reason these views are held.
[116] Sally has turned 14 since the appeal hearing. Her views have weight. However, I have already found (in agreement with Judge Burns) that the appellant should not have required Sally to choose with which parent she wished to live. Judge Burns was entitled to be circumspect about the decision Sally made after she was placed in that invidious position. Judge Burns heard evidence from the parties, spoke with Sally, and had the benefit of submissions from Ms Riddell. In all the circumstances I consider it was open to him to conclude that Sally’s views (as they were then) had been influenced, and were not her own.
[117] I have already set out how Judge Burns was very aware of the potential impact on Sally of making orders contrary to Sally’s stated wishes. He made ancillary orders
in her best interests to manage those risks. In my view Judge Burns properly took Sally’s views into account, notwithstanding that he did not consider it would be in her best interests to make orders in accordance with those views.
Conclusion
[118] Applying these principles, and taking Sally’s views into account, I do not consider it is in Sally’s welfare and best interests to allow the appeal. Judge Burns’ findings and the orders he made were easily open to him on the evidence available.
[119] In any event, I am not persuaded that the evidence, including the updating evidence, requires a different result. Sally’s doctors say that her mental health remains at risk, and healing will be a long term process. I do not consider this would be assisted by suspending the parenting order and returning Sally to the respondent’s sole care. On the contrary, both Sally’s parents need to be involved.
[120] I have taken Sally’s views into account. As noted above, her antagonism towards the respondent seems to have softened since the Family Court hearing. She wants more independence, no more court orders, and for her parents to “sort their stuff out”. Ms Riddell says that most of all Sally wants the fighting to stop. She does not care who is to blame. Ms Riddell says Sally wants both her parents to care more about her than they do about their ongoing disputes.
[121] If I could order the parties to put their grievances to one side and start working together in Sally’s best interests I would. But whether they do that is up to them. In making that decision they should both be aware that this is what Sally’s psychologist and lawyer both say she needs most. I agree with their assessment. Most importantly, it is what Sally says she wants.
[122] I encourage the appellant to accept that his approach to dealing with the respondent in Sally’s life has contributed significantly to her current difficulties. The appellant may have intended to relieve Sally of ongoing pressure by making her choose one place to live, but the evidence shows that he only added to it.
[123] I also encourage the respondent to reflect on the fact that Sally is now 14. Increasingly her independence and her autonomy needs to be respected.
[124] I observe that Dr Nguyen has been a very positive figure in Sally’s life during this difficult time. If Sally wishes to continue her sessions with Dr Nguyen then in my view that should be encouraged. Ultimately, as Dr Nguyen emphasised, that is a matter for Sally’s parents.
[125] Finally, I thank counsel for their assistance, especially Ms Riddell who has been acting for Sally for many years. Ms Riddell should explain to Sally my decision and the reasons for it.
Result
The appeal is dismissed.
Robinson J
Counsel/Solicitors
A E Ashmore, Barrister, Ponsonby
I Vodanovich, Vodanovich Law, Kumeu S R Jefferson QC, Barrister, Auckland
Z L Wackenier, Tomkins Wake, Auckland C Riddell, Barrister, Auckland
0
2
1