Shirley v Richmond - [2023] NZHC 913

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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 913

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: 4 April 2023

Counsel:

J F McDowell for Appellant Respondent in Person

K G Monk Lawyer for the Child

Judgment:

24 April 2023

JUDGMENT OF ISAC J

[Reasons for interim decision]

Introduction

[1] This urgent appeal concerns a parenting order made in the Family Court. At its centre is Matthew, the 15-and-a-half-year-old son of Ms Shirley and Mr Richmond. Since their separation, Matthew’s parents have struggled to parent Matthew

SHIRLEY v RICHMOND [2023] NZHC 913 [24 April 2023]

collaboratively. Their relationship is now marked by conflict and mistrust. This has in turn affected Matthew, who is a young person with complex needs.

[2] In a final judgment of 30 November 2022, Judge Druce found that Matthew’s allegation of an assault by his father was untrue. He also rejected a renewed request by Matthew’s lawyer for a psychological report under s 133 of the Care of Children Act 2004 (Act). He made final parenting orders in favour of Mr Richmond. He considered 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. Pursuant to s 50 of the Act the Judge also extended the duration of the parenting orders until Matthew’s 18th birthday.1

[3] In this appeal, Ms Shirley challenges the parenting order on one ground only: she says the Judge was wrong to have determined that a psychological report was unnecessary. In support of that contention, she points to Matthew’s adverse reaction when advised of the Family Court’s decision, and his refusal to have contact with his father. Ms Shirley also challenges an order made under s 77 of the Act, preventing Matthew’s removal from New Zealand until his 18th birthday. Ms Shirley does not challenge the Family Court’s finding that Mr Richmond did not assault Matthew as he had alleged.

[4] The issue for determination is, then, a narrow one: was the Family Court wrong to conclude that a psychological report was unnecessary and, if so, was that error material to its decision. On 6 April 2023 I issued a results judgment allowing the appeal.2 I now provide the reasons for that decision. Given the importance of the issue and the desirability of a prompt answer, my reasons are, of necessity, brief.

Judgment of the Family Court

[5] Three applications came for hearing before Judge Druce on 4 and 5 October 2022:3

1 Section 50(1) of the 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 913
Case: [2023] NZHC 913
Decision Date: 24 April 2023

CaseChat Overview and Summary

Shirley v Richmond [2023] NZHC 913 concerns an urgent appeal by Ms Shirley against a decision of the Family Court of Napier. The appeal revolves around the parenting order made in relation to Matthew, the 15-and-a-half-year-old son of Ms Shirley and Mr Richmond. The parents have struggled to collaborate on parenting Matthew since their separation, resulting in a relationship marked by conflict and mistrust, which has negatively affected Matthew, who has complex needs. The primary issue for determination was whether the Family Court was wrong in concluding that a psychological report was unnecessary and, if so, whether that error was material to its decision.

The Family Court had made final parenting orders in favour of Mr Richmond and extended the duration of the parenting orders until Matthew's 18th birthday. Ms Shirley challenges the parenting order, arguing that the Family Court was wrong in determining that a psychological report was unnecessary. She also contests an order made under s 77 of the Care of Children Act 2004, preventing Matthew's removal from New Zealand until his 18th birthday.

The court found that the Family Court was wrong to conclude that a psychological report was unnecessary. A psychological report is essential for the proper disposition of the application for final parenting orders, as it will provide expert guidance on how a difficult relationship has come about and mechanisms to address Matthew's resistance to contact with his father. All parties and counsel for the child agree that a pathway is needed to provide a safe mechanism to strengthen the relationship between Matthew and Mr Richmond. Therefore, the appeal from the parenting orders was allowed.

The court made the following orders: (a) preparation of a psychological report under s 133(5) of the Care of Children Act; (b) lawyer for the child to liaise with the Registrar of the Family Court to determine whether a fixture could be secured for a re-hearing of the parenting orders; (c) lawyer for the child to liaise with the parties and report on whether a viable interim care or contact arrangement could be put in place; and (d) an interim order under s 77 preventing Matthew's removal from New Zealand until further order of the Court.

Orders