Shaw v Brown

[2014] NZHC 3032

NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO

11D OF THE FAMILY COURTS ACT 1980.  FOR FURTHER INFORMATION, PLEASE SEE COURT/LEGISLATION/RESTRICTIONS-ON-PUBLICATIONS.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-001907 [2014] NZHC 3032

BETWEEN

SHAW

Appellant

AND

BROWN Defendant

Hearing:	On the papers
Judgment:	1 December 2014

JUDGMENT OF COURTNEY J

This decision was delivered by Justice Courtney on 1 December 2014 at 2.00 pm

pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date………………………

SHAW v BROWN [2014] NZHC 3032 [1 December 2014]

[1]      In my decision of 14 November 2014 I allowed Mr S’s appeal.  I concluded that the Judge had erred in making an assessment of what was in the children’s best interests without expert assistance regarding the nature and extent of L’s behavioural issues and needs.  No psychological report had been obtained in the Family Court and, given L’s psychological history, it was apparent that this step should have been taken.  Although I considered the appropriate course was to remit the matter to the Family Court I postponed making an order so that counsel could address the issue of a psychological report being obtained in respect of L.

[2]      Counsel for both parties and for the children accept that a psychological report  would  be appropriate.    I have  received  memoranda from  counsel  on  the parameters of a suitable brief.

[3]      The jurisdiction for directing a psychological report arises under s 133 of the Care of Children Act 2004 (CoCA).   Section 76 of the District Courts Act 1947 applies to appeals from the Family Court to the High Court.1    Under s 76(1) of the District Court’s Act the High Court may, on such an appeal, make any decision it thinks should have been made, direct the first instance court to consider or determine any matters that it directs and make any further or other orders it thinks fit.  These

provisions confer the jurisdiction to both direct a psychological report now (thereby avoiding unnecessary delay in the Family Court) and remitting the matter back to the Family Court for further consideration (which is the most appropriate course given that Court’s specialist expertise).

[4]      I am satisfied that the prerequisites for directing a psychological report set out at s 133(5) and (6) of CoCA are satisfied.  I make the following directions:

(a)      Simone Powell (and if she is not available then either Renuka Wali or Dr Sylvia Blood) be engaged to provide a psychological report about L;

(b)The report is to be directed to the Family Court, to which this matter will be remitted for further consideration;

1      Care of Children Act 2004, s 143(4).

(c)       The report will consider and comment on:

(i)How the current care arrangements for L and N are working for the children, focusing particularly on L’s behavioural issues (including but not limited to bedwetting, falsehoods, fantasising).   I note that the reality of the care arrangements include the children’s maternal grandparents and their father’s partner;

(ii)The relationship of L and N with each party, including the attachment of the children to each parent;

(iii)The relationship with other significant persons in their lives, including Ms K and their respective grandparents;

(iv)The effect or likely effect on L and N of each party’s parenting skills and, to the extent that other significant people are involved in caring for the children, those parties;

(v)      The effect or likely effect on L and N of the parties’ ability to

cooperate in parenting the children;

(vi)The advantages and disadvantages for the children of the care options for that child;

(vii)The insight of each parent and of significant other persons (Ms K and the maternal grandparents) on issues affecting the children  including  particularly  L’s  behavioural  issues (including but not limited to bedwetting, falsehoods and fantasising).

(d)The matter is remitted to the Family Court for rehearing with the benefit of the psychological report.

P Courtney J