Shirley v Richmond
[2023] NZHC 913
•24 April 2023
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 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 of Children Act 2004 permits the Family Court to extend parenting orders beyond the child’s 16th birthday where there are special circumstances.
2 Shirley v Richmond [2023] NZHC 774.
3 Shirley v Richmond [2022] NZFC 10170.
(a)an application under s 68 by Mr Richmond asking the Court to admonish Ms Shirley for failing to make Matthew available for contact on a number of occasions, and seeking an order that she pay a bond into Court to better ensure compliance with a parenting order made in 2019;
(b)Ms Shirley’s application under s 56, seeking a suspension of Matthew’s contact with Mr Richmond; and
(c)Mr Richmond’s application under s 77 for an order preventing Matthew’s removal outside of New Zealand until the age of 18.
[6] The parties represented themselves. Ms Monk appeared as lawyer for the child, and counsel to assist was also involved.
[7] In an interim judgment of 10 October 2022, the Judge made a number of important findings relating to Matthew’s development and intellectual functioning.4 Matthew was assessed by an educational psychologist when he was aged 11 using various psychometric tools. He was found to have an IQ which placed him within the very low range, or in the third percentile compared with other children his age.5 A report by a consultant neurodevelopmental paediatrician completed in January 2019 identified that Matthew had receptive and expressive language difficulties consistent with his pre-school levels of functioning.6 This led the Judge to conclude in his interim judgment that:7
…[Matthew’s] intellectual incapacity to process and organise thoughts and express his views is limited by his low intellectual capacity. This is a case where expert psychological expert opinion would have been highly relevant.
(emphasis added)
[8] Turning to the allegation of family harm, Judge Druce concluded that it was “forensically unsafe” for the court to reach a clear decision given the limited evidence then available.8 He also noted that Mr Richmond was, at that time, unwilling to attend
4 At [35]–[41].
5 At [37].
6 At [39].
7 At [41].
8 At [46].
a clinical psychologist “skilled in coaching parents and children where a child is resistant to contact”.9 This was material because, as the Judge noted, while in March 2022 Matthew had expressed a willingness to go to his father’s home on alternate weekends notwithstanding his allegation of assault, by June his views had changed. He said that he no longer felt safe being in his father’s care. Matthew told lawyer for the child that he was annoyed that his father was lying about not assaulting him.10
[9] The Judge made an interim order under s 77 preventing Matthew’s removal from the country and adjourned the hearing part heard so that the parties could provide further evidence relevant to the allegation of assault.11
[10] The hearing recommenced on 18 November 2022. In a final judgment of 30 November, the Family Court made an emphatic finding that:12
… [Matthew] was not physically assaulted by his father shortly after being collected from school on the morning of 17 February 2022. The father’s evidence that he took [Matthew] to his workplace that morning is accepted by the court.
[11] Having made a positive finding that Matthew’s safety is not being compromised by Mr Richmond, the Judge went on to consider a submission by counsel for the child that it would be appropriate to obtain a psychological report under s 133 before making final parenting orders.
[12] He noted lawyer for the child’s concern for Matthew’s psychological safety, given the chronic distrust and conflict between his parents, and Matthew’s own subjective beliefs about the assault.13 He then noted:14
Ms Monk does not support final orders. She considers a s 133 report to be essential. She is concerned that [Matthew] may well continue to resist contact with his father and get caught up in enforcement court proceedings.
9 At [48].
10 At [45].
11 Richmond v Shirley FC Napier FAM-2008-20-476, 5 October 2022 (Minute of Judge Druce).
12 Shirley v Richmond [2022] NZFC 12146 at [20].
13 At [27].
14 At [28].
[13] Judge Druce was not persuaded by this submission. He considered the delay in Matthew resuming unsupervised contact with his father was not in Matthew’s best interests.15 He noted Matthew’s increasingly anxious views against contact with his father that had developed over the course of the year.16 It was plain, however, that:
… [Matthew] is markedly intellectually vulnerable, and likely is emotionally vulnerable due to his having grown up with chronic parental conflict and distrust. The court is unable to place any significant weight on his expressed views.
[14] This aspect of the Family Court’s judgment is not subject to any appeal, a matter Mr McDowell confirmed at the hearing of the appeal.
[15] Turning to Ms Monk’s submission in favour of a psychological report, Judge Druce concluded that the proceeding should not be prolonged in order to obtain a report. The reason was that this would “simply extend the parental distrust and uncertainty with negative impacts on [Matthew]”.17
[16] The Court then made final parenting orders requiring shared care in largely similar terms to orders which had been made by the Court in 2019. Importantly, Judge Druce also considered it appropriate, under s 50 of the Act, to extend the parenting order beyond Matthew’s 16th birthday up to his 18th birthday:18
Given the special circumstances arising from [Matthew’s] very low intellectual functioning, he will inevitably require his parents’ ongoing engagement in his full day-to-day care beyond his 16th birthday and certainly up to his 18th birthday.
[17] Turning to Mr Richmond’s application under s 77 (preventing Matthew’s removal from New Zealand), the Court considered that Ms Shirley’s “inability to accept consistent professional opinion regarding [Matthew’s] very low intellectual functioning” coupled with her inability to show any understanding “of why the court has found that [Matthew’s] account of being assaulted by his father is objectively not credible” increased its concern that Ms Shirley might remove Matthew from
15 At [29].
16 At [31].
17 At [33].
18 At [34(j)].
New Zealand to better “protect” him.19 She had indicated in submissions that she was considering travelling to Brazil with Matthew in April 2023.
[18] As a result, Judge Druce was satisfied that it was in Matthew’s best interests and welfare to maintain the interim order preventing his removal from New Zealand until his 18th birthday, or until further order of the court. In doing so he acknowledged Ms Shirley’s submission that she had carefully complied with her guardianship obligations when previously planning to travel with Matthew to Brazil, and he accepted that that country is a signatory to the Hague Convention.20
Section 133 of the Care of Children Act 2004
[19] Under s 133 of the Act, a Family Court Judge is empowered to call for a “psychological report” in respect of an application for a parenting order.21
[20] A psychological report is defined as one about the child who is the subject of an application and covers any or all of the following subjects:22
(a)how current arrangements for the child’s care are working for the child;
(b)the child’s relationship with each party, including, if appropriate, the child’s attachment to each party;
(c)the child’s relationship with other significant persons in the child’s life;
(d)the effect or likely effect on the child of each party’s parenting skills;
(e)the effect or likely effect on the child of the parties’ ability or otherwise to co-operate in the parenting of the child;
(f)the advantages and disadvantages for the child of the options for the care of the child; and
19 At [40].
20 At [42].
21 Care of Children Act 2004, s 133(1) and (4A).
22 Section 133(1) definition of “psychological report”.
(g)any matter that the court specifies under subsection (5)(b)(ii).
[21] Importantly, under s 133(6), the court may only direct the preparation of a report if six cumulative elements are satisfied. They are:
(a)that the court is satisfied that the information that the psychological report will provide is essential for the proper disposition of the application; and
(b)the court is satisfied that the psychological report is the best source of the information, having regard to the quality, timeliness, and cost of other sources; and
(c)the court is satisfied that the proceedings will not be unduly delayed by the time taken to prepare the psychological report; and
(d)the court is satisfied that any delay in the proceedings will not have an unacceptable effect on the child; and
(e)the court does not seek the psychological report solely or primarily to ascertain the child’s wishes.
[22] Finally, if the court is entitled to obtain a psychological report, and either knows of the parties’ wishes on the matter or can speedily ascertain them, it must have regard to those wishes before deciding whether or not to obtain the report.23
Tests on appeal
[23] This is a general appeal, not an appeal from the exercise of a discretion.24 The principles articulated in Austin, Nichols & Co Inc v Stichting Lodestar therefore apply.25 This Court is to reach its own view on the merits of the appeal, but the appellant has the onus of satisfying the Court that the decision under appeal is wrong
23 Section 133(7).
24 Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [33].
25 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
and should be altered. What influence the Family Court’s reasoning should have, if any, is a matter for this Court.26
Further context
[24] During the appeal, Mr Richmond advised me that precisely one year earlier, he had contacted the Family Court by email asking whether it was possible for the court to consider appointing “a child psychologist to talk with [Matthew] and assess the situation further”. At the time, Ms Monk indicated that she thought the court would not appoint a psychologist “at this point in the proceedings”.
[25] However, lawyer for the child’s position clearly changed subsequently, after she interviewed Matthew on 15 June 2022. Following that meeting, she reported to the Family Court and suggested that a s 133 report would be appropriate.
[26] Judge Blake dealt with the submission in a Minute of 18 July 2022. She declined to order a report noting:27
Ms Monk in her report suggested a s 133 report. This suggestion was not made lightly, given [Matthew’s] age and the likely delay in having the report concluded. It is clear that if a s 133 report is obtained, it is likely that by the time that report was completed and a hearing date allocated, it would be close to [Matthew’s] 16th birthday, if not after. I have considered whether or not a s 133 report is essential. I have concluded that it is not essential. I note that the s 133 report was not supported by [Matthew’s] parents.
[27] At the hearing before me Ms Monk confirmed, following enquiries of the Family Court co-ordinator, that if a s 133 report were ordered within two weeks of the appeal hearing, a report is likely to be available by July or August of this year.
[28] Finally, in an affidavit in support of her application for a stay, Ms Shirley deposed that Matthew’s reaction to the parenting order of the Family Court was unfavourable. The evidence indicates that Matthew sought assistance from Youth Line because of the distress he felt at the prospect of returning to his father’s care. These concerns were supported by an affidavit from a Police constable who had dealt with Matthew in her capacity as a youth aid officer. She said that she became concerned
26 Kacem v Bashir, above n 24, at [31].
27 Richmond v Shirley FC Napier FAM-2008-20-476, 18 July 2022 (Minute of Judge Blake) at [5].
about Matthew as a result of the “difficult” relationship with his father. She said that Matthew had trouble communicating with her, and Mr Richmond did not appear to understand Matthew’s difficulties. The combination of these factors has created a situation where she is concerned for Matthew’s mental health. The Constable also noted the distress Matthew would feel if forced to live with his father.
[29] When the appeal was first called in the High Court, Thomas J stayed the Family Court’s orders and directed the appeal be given urgency.28
Mr Richmond’s submissions on appeal
[30] Although a year ago Mr Richmond supported the preparation of a psychological report, his position at the hearing was that he no longer does given the significant delay encountered, the absence of contact he has had with his son for a considerable period, and the parenting order made in his favour by the Family Court. He highlighted that when the allegation of assault originally surfaced and Mr Richmond’s regular care came to an end, Matthew was nevertheless willing to continue with contact, but that his view changed a few months later. Mr Richmond considers that Matthew is easily manipulated and this might explain his change in attitude.
[31] Mr Richmond also highlighted the importance of maintaining contact between Matthew and his paternal family. Given these reasons, Mr Richmond’s view was that the Family Court reached the correct decision and that the parenting orders should not be disturbed.
Was the Family Court wrong not to order a report under s 133?
[32] As the outline above reveals, on two occasions the Family Court determined that it was not essential to direct the preparation of psychological report for Matthew. The background also reveals that at various times during the proceedings both parties and counsel for the child have supported the preparation of a report.
28 Shirley v Richmond (Minute of Thomas J) HC Wellington CIV-2022-441-85, 14 February 2023.
[33] Despite Mr Richmond’s understandable frustrations and the upset the lack of contact with his son has caused him, I have come to the clear view that a psychological report is essential and that its absence was material to the parenting orders made in the Court below. In reaching this view, I have the advantage of additional evidence which was not available to the Family Court judges.
[34] The primary reason advanced by Judge Druce for declining to order a psychological report was the view of the impact of further delay in re-establishing contact between Matthew and his father. But as the intervening four months have demonstrated, despite the Family Court’s order, contact has not been re-established. On the contrary, the requirement of the order for Matthew to resume unsupervised contact with his father has caused the child distress. The evidence satisfies me that there is a real risk of harm both to Matthew’s mental well-being and the well-being of his father and his family, should contact be compelled under warrant. I am satisfied that compelled contact would not be in Matthew’s best interests.
[35] While the allegation of assault that led to the current appeal has been finally determined in the Family Court and is rightly not subject to challenge on appeal, the real difficulty is Matthew’s attitude towards his father, and the lack of guidance about its causes, and how to address them.
[36] Having considered the evidence I am satisfied that it was an error for the Family Court to conclude that a psychological report was not essential before making final parenting orders. 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.
[37]Turning to the s 133(6) criteria:
(a)I am satisfied that the information a psychological report will provide is essential for the proper disposition of the application for final parenting orders. In particular, it is very clear both from the Family Court judgment and from Matthew’s subsequent response to it that the prospect of returning to his father’s care has caused him significant distress. As Judge Druce noted, a “resist/refuse” relationship has developed in that Matthew is strongly opposed to a return to unsupervised contact with his father. A psychological report will provide expert guidance on how a difficult relationship has come about and mechanisms to address Matthew’s resistance to contact with his father.
(b)A psychological report is the best source of the information needed, having regard to the quality, timeliness and cost of other sources. This is especially so given it is acknowledged Matthew has particular needs and there has been a level of previous—but now historical—expert reporting on subjects that would be canvassed in a psychological report.
(c)While there will inevitably be further delay occasioned, it seems the only viable pathway by which to support a meaningful relationship between Matthew and his father is with the assistance of a psychologist.
(d)I am also satisfied that the delay will not have an unacceptable effect on the child, given that, as matters currently stand, Matthew is simply unwilling to have any contact with his father. The continuing absence of contact is not in Matthew’s best interests, but I am also clearly satisfied that enforced contact will do more harm than good.
(e)Finally, the report is not required solely or primarily to ascertain the child’s wishes. His wishes have been clearly made known through his counsel and in the evidence provided on appeal.
[38] All parties and counsel for the child agree that in the current complex and challenging circumstances, a pathway is needed to provide a safe mechanism to strengthen the relationship between Matthew and Mr Richmond. While Mr Richmond opposed the appeal on the basis that time had moved on, and that he needed to have contact with his son without further significant delay, it was also clear to me that he understood the need to ensure that contact was re-established safely and in a manner which restored the relationship rather than created greater strain.
Conclusion and result
[39] For these reasons, I was satisfied that the appeal from the parenting orders should be allowed. I made the following orders:
(a)The preparation of a psychological report under s 133(5) of the Care of Children Act. As the parties have been unable to agree on the form of brief as directed, the relevant brief is set out in the appendix to this judgment.
(b)Lawyer for the child was directed to liaise with the Registrar of the Family Court as soon as possible to determine whether a fixture in late August or early September 2023 could be secured notwithstanding the psychological report will not be available for some months. I direct counsel to advise whether a fixture can be secured in the Family Court by 26 April 2023 (if further time is required to answer that question, counsel should indicate when an answer is likely to be available).
(c)I also directed lawyer for the child to liaise with the parties and report, also by 26 April, on whether a viable interim care or contact arrangement could be put in place in order to ensure there was ongoing contact between Matthew and Mr Richmond pending a re-hearing of
the parenting orders. I also noted that I may be minded to set down a short hearing if the parties were not able to reach agreement.
(d)I have addressed the appeal in an interim judgment because if the Family Court is unable to allocate a fixture shortly after the psychological report is anticipated to become available, I may be minded to determine the parenting orders as part of the appeal, rather than remit the matter back to the Family Court for reconsideration. The primary factor here is the risk of further significant delay in rekindling unsupervised contact between Mr Richmond and Matthew.
(e)Finally, given that the parenting orders placing Matthew with his father have now been set aside, I was also satisfied that the justification for the s 77 order preventing Matthew’s removal from New Zealand until the age of 18 had fallen away and set it aside. Indeed, the Judge acknowledged Ms Shirley’s submission that she has “carefully complied with her guardianship obligations” when previously planning overseas travel with Matthew.29 And, as noted, Brazil is a signatory to the Hague Convention. In the circumstances, I considered that the final order under s 77 was no longer appropriate given I had allowed the appeal and set aside the final parenting orders. The s 77 order made by the Family Court was also set aside accordingly. Nevertheless, to preserve the position, I made an interim order under s 77 preventing Matthew’s removal from New Zealand until further order of the Court.
[40] I have reserved leave to the parties to apply. I confirm that this judgment issues on an interim basis subject to final disposition of the appeal.
29 At [42].
Appendix – brief to psychologist
[41] Pursuant to s 133(5)(b)(i) and (ii) of the Care of Children Act 2004, I direct the preparation of a psychological report addressing the following matters:
(a)Assess and report on Matthew’s relationship with each party, including, if appropriate, Matthew’s attachment to each parent.
(b)Assess and report on the effect or likely effect on Matthew (including his views) of the parties’ ability or otherwise to cooperate in the parenting of the child.
(c)Assess and report on the advantages and disadvantages for Matthew of the options for the care of the child.
(d)Assess and report on Matthew’s views about his contact with his father including whether there has been any influence on those views.
(e)Assess and report specifically on the impact on Matthew of his care and contact occurring in a way that is contrary to his views.
(f)Recommend possible pathways (including the use of a qualified expert such as a psychologist), by which unsupervised contact can be safely re-established between Matthew and his father, together with recommendations for overcoming any “resist/refuse” relationship that may exist.
Isac J
Solicitors:
John McDowell, Solicitor, Napier for Appellant Bay Legal, Hastings for the Child
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