Shirley v Richmond

[2023] NZHC 2090

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,

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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 and contact with Mr Richmond was not in Matthew’s best interests.

2      Shirley v Richmond [2023] NZHC 913 [Reasons judgment].

3 At [36].

4      I was advised by counsel for the child, Ms Monk, that the practice in the Family Court was generally to set matters down for hearing only after the psychological report had been prepared.  I was also advised that preparation for report would likely take three to four months, and there might be an additional six-month delay before the matter could then be heard in the Family Court.

5      Shirley v Richmond [NZHC] 774 [Results judgment] at [8].

Progress since the April 2023 judgment

[3]    Four matters warrant mention. The first is preparation of the psychological report, which is currently expected to be filed later this month, on 25 August 2023.

[4]    The second is the limited interim (and voluntary) supervised contact which has taken place between Mr Richmond and Matthew. At a teleconference convened on   7 August 2023, Mr Richmond explained that he had attended two supervised contact sessions with Matthew. He described neither as satisfactory, although thought at the first meeting he had been able to communicate more effectively with Matthew. The second meeting he described as awkward, with “too many eyes” observing Matthew. Mr Richmond explained that in addition to himself, the psychologist and a meeting supervisor were also present.

[5]    Third, despite Ms Monk’s best endeavours, it has not been possible to confirm the allocation of a potential hearing date in the Family Court. Ms Monk advised that at the time of her enquiries the schedule did not permit the Family Court scheduler to advise whether a hearing was available, and it was the preference of the Family Court to allocate hearings once satisfied the file was ready to proceed to hearing. Related to this issue is the lack of an available fixture in the High Court. My schedule both for the remainder of this year and early into next year is already full.

[6]    The final matter of note is Mr Richmond’s possible travel plans. Following the appeal, he indicated he was likely to be overseas for an extended period commencing in mid-August lasting approximately two and a half months. He also indicated during that time he would be unable to participate in a hearing. However, at the conference on 7 August, he advised that his plans were now uncertain, raising the prospect that progress might be made more rapidly in terms of a hearing.

The issue for determination and jurisdiction

[7]    Given the march of time, and Matthew’s best interests (including regular and meaningful contact with his father), I was concerned that continuing uncertainty as to the final disposition of the appeal might delay resolution of the underlying proceeding. In particular, further delay in reconsideration of Mr Richmond’s application for

parenting orders is in no one’s interests. The issue, then, is whether parenting orders should be determined by the High Court as part of the appeal, or whether that issue should be remitted to the Family Court for reconsideration.

[8]    Section 174 of the Family Proceedings Act 1980 governs appeals from the Family Court. Appeals to the High Court proceed by way of rehearing.6 The High Court’s powers on appeal are as follows:7

(1)After hearing an appeal, the court may do any 1 or more of the following:

(a)make any decision it thinks should have been made;

(b)direct the decision-maker—

(i)to rehear the proceedings concerned; or

(ii)to consider or determine (whether for the first time or again) any matters the Court directs; or

(iii)to enter judgment for any party to the proceedings the Court directs;

(c)make any order the Court thinks just, including any order as to costs.

(2)The court must state its reasons for giving a direction under subclause (1)(b).

(3)The court may give the decision-maker any direction it thinks fit relating to—

(a)rehearing any proceedings directed to be reheard; or

(b)considering or determining any matter directed to be considered or determined.

…

[9]    The Court’s discretion to remit a matter is broad. Factors that have been considered relevant to the assessment include:

6      Family Proceedings Act 1980, s 174(1) and (1B).

7      High Court Rules 2016, r 20.19; and District Court Act 2016, s 128.

(a)the nature of the matter to be determined, and the relative benefit or practicality of remission, including the further time and cost of remission,8 and the likelihood of a particular outcome;9

(b)whether there are factual matters which remain to be determined;10

(c)any expertise of the first instance decision maker;11

(d)the availability of new evidence;12

(e)the preservation of appeal rights;13 and

(f)in applicable cases, the best interests of a child.14

Consideration

[10]   Ms Shirley did not attend the 7 August teleconference and her views are unknown. Ms Monk, counsel for the child, submitted that notwithstanding the absence of a confirmed Family Court fixture, it is appropriate to remit the case to the Family Court for disposal. In making that submission she noted Parliament’s recognition of the Family Court as a specialist tribunal charged with a general first instance (and in large part exclusive) jurisdiction to determine matters affecting the care of children and young persons.15

8      Preston v Victims’ Special Claims Tribunal [2021] NZHC 3043 at [24].

9      If the outcome of the appeal is obvious or “clear cut”, that will weigh in favour or determination by the court on appeal: Bean v Bean [2019] NZHC 545 at [10].

10 W v Accident Compensation Corporation [2018] NZHC 937, [2018] 3 NZLR 859 at [3] and [86]– [88]; and McKeefry v Accident Compensation Corporation [2019] NZHC 612 at [53].

11     Commissioner of Inland Revenue v Morris [1998] 1 NZLR 344 (HC) at 358–359.

12 Sim’s Court Practice (online ed, LexisNexis) at [HCR20.19.3], citing Minister of Health v Upjohn Inter-American Corporation CA69/92, 29 April 1992; Gisborne Memorial RSA Club Incorporated v Gisborne District Licensing Agency [1998] NZAR 452 (HC); and La Chemise Lacoste v Crocodile Garments Ltd HC Wellington AP 32/02, 18 November 2002.

13 Porter v T [2021] NZHC 2886 at [31(c)].

14 HC v PS CA115/06, 18 October 2006  at [6], cited in GF v EF [2019] NZHC 3140 at [35]; and Care of Children Act 2004, s 4.

15 Family Court Act 1980, s 11. See for example Adams v Wigfield [1994] NZFLR 132 (HC) at 136– 137; and D v N [2017] NZHC 1211, [2017] NZFLR 426 at [34].

[11]   Mr Richmond was not opposed to remission of his application to the Family Court for reconsideration. He indicated a preference to defer his decision until the psychological report had been received.

[12]   Despite Mr Richmond’s hesitation, I consider it in Matthew’s best interest, and in the interests of the parties, to remit the proceeding to the Family Court for reconsideration. The reasons for my conclusion are these.

[13]   First, in addition to the psychological report, it is likely the parties may wish to file further evidence in response to the psychological report. More than a day of hearing is likely to be required during which the court may wish to receive oral evidence and be required to make factual findings. While it might be open to proceed with the appeal on that basis, given there is a prospect that the hearing will proceed on a new evidential foundation, or at least with new evidence, the specialist jurisdiction of the Family Court is preferable. Proceeding in this way will also preserve the appeal rights of the parties.

[14]   Second, while some further delay  is  likely  to  be  occasioned  in  the  Family Court, Ms Monk alluded to the possibility of the matter being dealt with as a “back-up” fixture pending a scheduled re-hearing. The ability of the Family Court to accommodate the hearing may be further improved if Mr Richmond’s overseas travel does not proceed. Related to these considerations is the lack of any available hearing time in the High Court, and the prospect of avoidable delay.

[15]   Third, Matthew will soon turn 16. Given his age, and the long hiatus without any meaningful contact with his  father, there is very real urgency in relation to     Mr Richmond’s application for parenting orders.

Conclusion and result

[16]   For these reasons, I have concluded that it is appropriate to remit the application for parenting orders for reconsideration in the Family Court.

[17]   Ms Monk proposed a number of timetabling directions intended to prepare the matter for hearing in that jurisdiction. The better approach in my view is to leave it to

the Family Court to make any necessary directions to ready the matter for hearing. Simply, I would highlight the significant delay which the parties have encountered, the impact on Matthew, and the need for meaningful contact with his father all point toward the need for a fixture at the earliest opportunity.

[18]   I do not understand costs to be an issue. If they are, the parties have leave to file memoranda.

[19]   Finally, I note that the interim supervised contact which has recently taken place was undertaken as a matter of consent and agreement between Matthew and his parents. I would strongly encourage all three to continue in that endeavour and to consider the possibility of alternative forms of contact which might make the interaction more enjoyable (and normal) for Matthew.

Isac J

Solicitors:

Bay Legal, Hastings for the Child