Shirley v Richmond

[2023] NZHC 774

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 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 form of brief has not been settled by agreement, I will settle it. The brief should include

recommendations on approaches to Matthew’s apparent opposition to care or contact with his father and what support might be required in that regard.3

[8]    Further avoidable delay in the determination of the parenting orders is not in Matthew’s best interests. Given the s 133 report is likely to be available by August,   I direct counsel for the child to liaise with the Family Court registrar as soon as possible to see if a fixture in late August or early September 2023 can be secured notwithstanding that the psychologist’s report will not be available when the fixture is set down. If a fixture cannot be allocated until the 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.

[9]    The lack of any contact between Matthew and his father and Matthew’s paternal family is concerning. It is unlikely to be in Matthew’s best interests that the hiatus continues any longer. I would ask counsel for Matthew to liaise with her client and his parents to explore options which might involve contact and/or care in an environment and in a manner that is unlikely to cause difficulty for Matthew. One option—without prescription—might be planned visits to Matthew’s paternal grandmother’s house at which Mr Richmond and Matthew could (initially or in time) share each other’s company for a period. It would be helpful if counsel could provide a report to the Court on viable interim care and contact options by 26 April at the latest. I may be minded to convene a short hearing in late April to address the position if satisfactory interim arrangements have not been agreed or implemented, given the long period without contact already and the effect of that on Matthew’s relationship with his father.

[10]   I would strongly encourage Mr Richmond to remain open to receiving assistance from professionals (including psychologists) to strengthen his relationship with Matthew. For whatever reason, a difficulty in the relationship exists. The more productive course is to focus on the future and solutions rather than on the past and the reasons for the current situation. Equally, it is important for Ms Shirley to

acknowledge the importance for Matthew that he has a relationship with his father, and her obligation as a guardian to ensure that occurs.4

[11]Leave to apply is reserved.

Isac J

Solicitors:

John McDowell, Napier for Appellant Bay Legal, Hastings for the Child