Shirley v Richmond - [2023] NZHC 774

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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 774

UNDER The Care of Children’s 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:

6 April 2023

RESULTS JUDGMENT OF ISAC J

[1] Ms Shirley brings an urgent appeal from a decision of the Family Court of 30 November 2022 in which Judge Druce made a final parenting order for the parties’ son, Matthew.1

1 Shirley v Richmond [2022] NZFC 12146 at [34(d)].

SHIRLEY v RICHMOND [2023] NZHC 774 [6 April 2023]

[2] Ms Shirley’s submission, supported by Matthew’s lawyer, Ms Monk, is that the Judge was wrong to make final parenting orders without first obtaining a psychological report under s 133(5) of the Care of Children Act 2004. Counsel pointed to Matthew’s reaction to the Family Court’s orders, which has been concerning. Matthew has refused to have contact with his father despite the parenting order, and on 14 February 2023, Thomas J granted a stay in relation to that aspect of the Family Court’s judgment.2

[3] In support of the appeal is evidence clearly indicating that enforcement of the Family Court’s order is likely to cause Matthew, at the very least, significant distress. Given the paramount consideration in s 4 of the Act, I have concluded that it is necessary to allow the appeal and direct preparation of a report under s 133(5). Given the importance of the issue to the parties and Matthew, and the delay already occasioned in the proceeding, I am providing the result of the appeal so the parties are aware of the outcome, and so that the necessary arrangements can be made to address the underlying issues that exist. I will provide my reasons separately.

Result and orders

[4] The appeal is allowed. The parenting orders made in the Family Court’s judgment of 30 November 2022 are set aside.

[5] The final order of the Family Court under s 77 of the Care of Children Act is also set aside. Instead, I make an interim order under s 77 preventing Matthew’s removal from the country until further order. I reserve leave to the parties to apply.

[6]In all other respects, the Family Court’s findings are undisturbed.

[7] I direct preparation of a psychologist’s report under s 133(5) of the Care of Children Act. The parties are to provide a final and agreed form of the brief based on the draft prepared by counsel for the child by 4.00 pm on 13 April 2023. If the…

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 774
Case: [2023] NZHC 774
Decision Date: 6 April 2023

CaseChat Overview and Summary

In Shirley v Richmond, Shirley appealed against a final parenting order made by the Family Court of Napier in relation to her son, Matthew. The Family Court had ordered that Matthew live with his father, Richmond, but Shirley argued that the Court had erred in making the order without first obtaining a psychological report under s 133(5) of the Care of Children Act 2004. The appeal was heard in the High Court of New Zealand, Napier Registry, on 4 April 2023. Shirley's counsel argued that the Family Court's decision was wrong and that enforcement of the order would cause Matthew significant distress. Counsel for the child, Matthew, also supported the appeal. The court found that the Family Court had erred in making the final parenting order without obtaining the required psychological report. The court was concerned about Matthew's refusal to have contact with his father and the distress this was causing him. The court set aside the Family Court's parenting order and directed the preparation of a psychologist's report. The court also set aside the final order of the Family Court and made an interim order preventing Matthew's removal from the country until further order. The court reserved leave to the parties to apply.

The court held that the Family Court had erred in making the final parenting order without first obtaining a psychological report under s 133(5) of the Care of Children Act 2004. The court found that it was necessary to allow the appeal and direct the preparation of a report under s 133(5). The court was concerned about Matthew's refusal to have contact with his father and the distress this was causing him. The court noted that enforcement of the Family Court's order was likely to cause Matthew significant distress, and that given the paramount consideration in s 4 of the Act, it was necessary to allow the appeal and direct preparation of a report under s 133(5). The court was also concerned about the lack of any contact between Matthew and his father and Matthew's paternal family, and that it was unlikely to be in Matthew's best interests that the hiatus continue any longer. The court found that the Family Court had erred in making the final parenting order without obtaining the required psychological report.

Orders