Shirley v Richmond - [2023] NZHC 2090

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IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV-2022-441-85

[2023] NZHC 2090

UNDER the Care of Children Act 2004

IN THE MATTER

of an appeal against a decision of the Family Court of Napier

BETWEEN

SHIRLEY

Appellant

AND

RICHMOND

Respondent

Hearing: 7 August 2023 (Teleconference)

Counsel:

No appearance for Appellant Respondent in Person

K G Monk Lawyer for the Child

Minute:

7 August 2023

JUDGMENT OF ISAC J

SHIRLEY v RICHMOND [2023] NZHC 2090 [7 August 2023]

Introduction

[1] In a judgment of 30 November 2022, the Family Court made final parenting orders in favour of Mr Richmond concerning the parties’ son, Matthew.1 In a judgment following an urgent appeal, I found that it was an error for the Family Court to have concluded that a psychological report for Matthew was not essential before making the final parenting orders.2 As I noted:3
Matthew has complex needs and, for whatever reason, he has not taken well the prospect of renewed contact with his father. Rather than speculating on the causes that might have led Matthew to arrive at his current view, I consider it is in his best interests to be provided with the necessary expert support to restore the relationship he previously enjoyed with his father. To understand the factors that have led Matthew into a “resist/refuse” relationship, a psychological report is required. The report will guide the parties and the Court to determine what the best solution or solutions may be. This will also require further grace from Mr Richmond, and an acknowledgement by Ms Shirley that, whatever her own views and feelings about Mr Richmond, it is in Matthew’s best interests to have a relationship with his father, and that she has a legal obligation to facilitate and support Matthew’s father having a role in Matthew’s life.

[2] I directed the preparation of a psychological report under s 133(5) of the Care of Children Act 2004 and made consequent directions aimed at ascertaining whether the proceeding could be set down for hearing in the Family Court before the psychological report had been provided.4 As I noted in the results judgment of 6 April 2023:5
If a fixture cannot be allocated until the [psychological] report is available, I may be minded to deal with the parenting orders rather than direct reconsideration of the question by the Family Court. This decision is therefore interim only.

1 Shirley v Richmond [2022] NZFC 12146 at [34(d)]. The Family Court also found on the balance of probabilities, that Matthew’s allegation that he had been assaulted by his father had not been made out, that Ms Shirley was unlikely to facilitate Matthew’s relationship with his father, and further delay in rekindling care…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Shirley v Richmond

Details

AGLC: Shirley v Richmond [2023] NZHC 2090
Case: [2023] NZHC 2090
Decision Date: 7 August 2023

CaseChat Overview and Summary

Shirley v Richmond involved an appeal against a Family Court decision regarding final parenting orders concerning the parties' son, Matthew. The Family Court had granted final parenting orders in favour of Mr Richmond, but the High Court found it was an error to have made those orders without a psychological report for Matthew, who has complex needs and has resisted contact with his father. The High Court directed the preparation of a psychological report and made interim directions for the case to proceed.

The legal issue was whether the parenting orders should be determined by the High Court as part of the appeal or remitted to the Family Court for reconsideration. The court considered factors such as the nature of the matter, availability of new evidence, preservation of appeal rights, and the best interests of the child. The court noted that the Family Court is a specialist tribunal with jurisdiction over matters affecting the care of children and young persons.

The court concluded that it was appropriate to remit the case to the Family Court for reconsideration. This decision was based on the likelihood that further evidence would be filed in response to the psychological report, the availability of the Family Court to accommodate the hearing, and the need for a fixture at the earliest opportunity. The court also highlighted the importance of continuing supervised contact between Matthew and his father and encouraged the parties to consider alternative forms of contact.

Orders