Sinclair v Oliver
[2020] NZHC 592
•20 March 2020
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,
PLEASE SEE https:// judgments/
IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY
I TE KŌTI MATUA O AOTEAROA TE TIHI-O-MARU ROHE
CIV-2017-476-000008
[2020] NZHC 592
BETWEEN EMMA SINCLAIR
Appellant
AND
MARK OLIVER
Respondent
Hearing: 18 October 2019 Appearances:
J Mason for the Appellant
Respondent – self represented
C A Gibson as counsel for the childJudgment:
20 March 2020
JUDGMENT OF NATION J
The names of the parties, the child and non-professional witnesses are fictitious.
Background
[1] Chloe was born on […] in […]. Her mother, Emma (the mother), married Mr Sinclair in 1990. They had three children. […]. Mark Oliver (the father) began an affair with the mother in May 2009. The mother and father continued their liaison between May 2009 and August 2014 but only lived together for four to six months over that time. The mother continued in the marriage with Mr Sinclair but with a number of separations.
SINCLAIR v OLIVER [2020] NZHC 592 [20 March 2020]
[2] In April 2014, the father, mother, Chloe and the mother’s youngest child relocated to […] and lived together for a time with the mother’s parents, Mr and Mrs Carter. The mother subsequently reconciled with her husband, Mr Sinclair. They moved to […]. The father moved to live in […] where he had children from an earlier relationship.
[3] In December 2014, the mother and father became involved in proceedings in the Family Court over the care of Chloe. The mother made allegations that the father had been involved in indecent touching and verbal abuse of Chloe. The father made allegations against Mr Sinclair suggesting he was a danger to Chloe.
[4] On 5 December 2014, a Judge in the Family Court made interim parenting orders that the mother have day-to-day care of Chloe. The father was to have contact supervised by a professional supervisor, as arranged by counsel for Chloe, Ms Carlyle Gibson. After February 2015, the father had supervised contact with Chloe every second weekend in […], involving [many] hours of travel each way.
[5] In proceedings in the Family Court, the father asked for Chloe to be placed in his primary day-to-day care in […]. The mother wished to continue having Chloe in her care and for the father’s contact to be indefinitely supervised.
[6] Issues between the parents were the subject of a hearing over three days, 18, 19 and 20 January 2017, and were the subject of a comprehensive oral judgment of Judge Walsh of 20 January 2017 (the first decision)
The first decision
[7] Judge Walsh discharged the interim parenting order and placed Chloe in the day-to-day care of the father, with the mother to have unsupervised contact every second weekend in […] or such other place as the parties might agree. Relevantly, Chloe was not to have contact with Mr Sinclair during those periods of contact. It was a condition of the arrangement that the father was not to resume living with the mother. Chloe was placed under the guardianship of the Family Court. The Chief Executive of the Ministry of Social Development was appointed to facilitate Chloe’s move from living with the mother to living with the father.
[8] In his decision, the Judge carefully considered the evidence against the relevant legislative framework, focusing on the welfare and best interests of Chloe. Relevantly, he referred to:
(a) It being generally accepted that the mother was an excellent mother and Chloe had been always in her care, but had shown herself to be unwilling to promote the father in Chloe’s life.
(b) The relationship between the mother and Mr Sinclair had been historically volatile. Mr Sinclair was a deeply troubled man with insightless and insensitive views about Chloe’s relationship with her father. He had been open about wanting the father out of Chloe’s life. There were a number of significant stressors in his relationship with the mother. If Mr Sinclair had contact with Chloe, he would continue with a campaign to alienate the father from Chloe’s life.
(c) Mr Sinclair was a dominating and controlling adult in the mother’s life.
(d) The mother’s parents had moved from […] to share a home with the mother at […].
(e) In an affidavit of 3 June 2015, Mr Carter supported the father but had been intensely critical of Mr Sinclair, describing him as “not only … controlling and violent but mentally cruel”. Judge Walsh was concerned that, despite what Mr Carter said about Mr Sinclair, Mr Carter was defensive of Mr Sinclair and had chosen to move into the mother and Mr Sinclair’s household. The Judge was also concerned that, during the hearing, Mr Carter had taken the mother’s then [teenage] son to the […] Police Station in connection with a complaint the son had made as to an alleged indecent assault by the father against Chloe.
(f) The father was then […] in stable employment. He had a good relationship with his ex-partner, who had the care of their two teenage children. He had some previous convictions, but they were of a historic nature or otherwise not such as to raise issues as to whether Chloe would be safe in his care.
(g) The father had vehemently denied the mother’s assertion he had sexually abused Chloe. There was no reliable evidence on which the Judge could find those allegations were true. The Judge found that the mother’s allegations were a “tit for tat” strategy conveniently engineered and driven by Mr Sinclair to oust the father from Chloe’s life.
[9] The Judge concluded, putting Chloe’s welfare and best interests as the first and paramount consideration, an immediate change of care was imperative to address Chloe’s direct exposure to ongoing parental conflict.
Intervening events
[10] On 4 April 2017, Judge Walsh noted the mother was applying to set the changed interim parenting orders aside on the grounds she was then permanently separated from Mr Sinclair.
[11] On 27 May 2017, Chloe was with her mother in […] during an agreed contact visit. The mother took Chloe to a doctor with complaints the mother implied were suggestive of an indecent assault.
[12] On 6 June 2017, with the assistance of her father Mr Carter, the mother contacted another doctor. This doctor, at the mother’s request, notified Oranga Tamariki in […] with concerns.
[13] On 11 June 2017, Chloe failed to board an Air New Zealand flight as previously arranged to return to […] from that contact visit.
[14] On 13 June 2017, Judge Neal granted the father’s without notice application for a warrant to have Chloe returned to his care after the mother refused to return Chloe to him after a period of contact. Mr Carter filmed the Police uplifting Chloe pursuant to the warrant. The footage of the uplift, with the child’s face pixelated, was shown on TV.
[15] On 7 July 2017, orders were made in the Family Court, varying the interim orders, to provide for Chloe and her mother to have supervised contact in either […] or […].
[16] On 26 January 2018, Judge Walsh recorded in a minute that the Registrar of the […] Family Court had received a 145 paragraph affidavit, sworn by a retired senior Police officer, who described himself as working as “an international advisor for children in contact and conflict with the law”. The Judge said the affidavit was objectionable because it included considerable opinion and hearsay evidence. It also referred to s 133 psychological reports which he should not have had access to.
The second decision
[17] On 6 and 7 November 2018, there was a further hearing. Judge Walsh issued a judgment on 22 March 2019 (the second decision). In that judgment, he had to consider, amongst other issues, what ought to be done in terms of a final parenting order. That required him to determine whether allegations of inappropriate conduct against the father had been proved, whether there was an unacceptable risk to Chloe so that the father’s care/contact should be supervised, whether allegations of psychological abuse by the mother or her family group against Chloe had been proved and whether risks to Chloe required care/contact by the mother to be supervised for Chloe’s safety.
[18] In another careful and detailed judgment, the Judge made a final parenting order that the father was to provide the day-to-day care of Chloe. The mother was to have supervised contact with Chloe on terms set out in the judgment.
[19]In the second decision, Judge Walsh found:
(a) any particular physical contact the father had with Chloe, which the mother complained about, was innocuous and innocent;
(b) Chloe was safe sexually, physically and emotionally in her father’s care;
(c) the mother had psychologically abused Chloe through causing or allowing Chloe’s relationship with her father to be undermined by the way adults in
her family allowed her to hear their abuse or criticisms of the father so as to constantly undermine her placement with her father;
(d) the mother and mother’s father, Mr Carter, were in league to discredit the father by continuing to promote a malevolent interpretation of the father’s actions with his foot towards Chloe which the Judge had found to be innocent and innocuous;
(e) the mother, actively supported by her parents, had an unjustified fixation that the father had physically, sexually and emotionally abused Chloe;
(f) the mother and Mr Carter had ignored Chloe’s right to privacy when filming the Police uplifting Chloe after a Judge had issued a warrant for her uplift as Chloe had not been returned to her father’s care as agreed in June 2017. The Judge detailed ways in which Mr Carter, in his evidence, had acknowledged filming the uplift, provided that footage to the media, had released copies of the s 132 social worker’s report to others, sent a copy of the video tape to the Prime Minister, was adamant the Police should conduct an evidential interview of Chloe about her “disclosures” and was in communication with a […] journalist in the week before the Family Court hearing.
(g) the mother and Mr Carter had deliberately strategised to continue with the allegation that Chloe was at risk in her father’s care to try and have her evidentially interviewed and to ensure Chloe’s uplift received media attention.
[20] In his findings, the Judge was critical of the way the mother and Mr Carter, had interacted with Chloe to Chloe’s detriment. Judge Walsh nevertheless demonstrated a commitment to achieve the best outcome for Chloe in her particular family situation with this passage in his decision:1
1 […] v […] [2019] NZFC 2112.
[285] Mother, in her evidence in chief, said she was prepared to consult a psychiatrist but was not happy with the psychiatrist being provided with Ms Deo’s s 133 reports. It is Mother’s right to disagree with the findings of a Court at first instance, but I hope Mother with the benefit of time and objective advise [sic], will fully evaluate the effects and implications of the Court’s decision. I encourage Mother to adopt Ms Deo’s recommendations to consult a psychiatrist and also to re-engage in counselling.
[286] This is a very sad case for [Chloe], in that Mother is a parent with many virtues and attributes. However, Mother, at this time has no insight into the paramount need for [Chloe’s] welfare to be protected from psychological and emotional abuse.
[287] Even if Mother left her parents […] home, and found another approved address for home detention,2 it will not change the situation for [Chloe] who, potentially, will still be exposed to Mother’s ingrained negativity towards Father.
[288] In the hope that, at some future time Mother does reflect on her actions and changes her mindset, I have made provision for Mother to have supervised contact with [Chloe] at such other times and places as she and Father agree upon, provided the supervisor is a person first approved of by Father.
[289] [Chloe’s] parents never completed counselling as I originally hoped they would. It is my view that the s 46G counselling has only been suspended. Therefore, if they wish to reengage with counselling they are free to do so at an appropriate stage. Mother says she does not wish to communicate with Father, but I implore her to have second thoughts.
Appeal against the first decision
[21] Mother filed a notice of appeal in the High Court on 14 February 2017 against the Family Court decision of 20 January 2017, the first decision. It was filed by the mother in person.
[22] After several prior adjournments of the appeal, there was a telephone conference on 1 July 2019. Gendall J recorded that the mother finally indicated she wished to proceed with the appeal. He made directions as to steps she must take to ensure the appeal would be ready for hearing, including directions as to how she should proceed if she wished to adduce further evidence for the appeal.
2 […].
[23] On 22 July 2019, Janet Mason of Phoenix Law Ltd sought to advise the Court she would now be representing the mother. She asked for an extension to the previous timetabling directions. Further timetabling directions were made in my minute of 8 August 2019 and a further minute of 3 September 2019 after a telephone conference with counsel and the father on 2 September 2019.
[24] On 11 September 2019, by memorandum, the mother sought leave to file a further amended notice of appeal and leave to adduce further evidence. The document also set out points on appeal.
[25] This amended notice of appeal included an appeal against the whole of the decision of the Family Court at […], delivered on 22 March 2019 (the second decision). In that amended notice of appeal, the mother sought an order that the day- to-day care of Chloe be granted to her.
[26] In a minute of 9 October 2019, without opposition from either Ms Gibson, counsel for Chloe, or the father, I gave leave for affidavits that were already before the Court to be filed on the appeal. In that minute, I indicated:
… without predetermining the issue, that it would be most unlikely the High Court would change the care arrangements for the child through an appeal which is being heard more than two and a half years since the child was placed in the care of her father.
[27] On 10 October 2019, counsel for the mother filed a memorandum confirming the mother wished to pursue the appeal.
The new evidence
[28] The mother filed an affidavit sworn on 12 September 2019. She said her relationship with Mr Sinclair ended in February 2017. She had been separated from him since then. The marriage was dissolved on 11 April 2019. She was now working as a driver on a rotating roster of three day shifts, three night shifts and three rostered days off. She said she was committed to having a civil functioning relationship with the father for Chloe’s benefit. She said there had been a positive call in July 2019. She had last seen Chloe on 15 August 2019. Her visit before that had been in October 2018. She said this was because her home detention sentence required her to stay in
[…]. That sentence finished on 29 July 2019. She concluded that affidavit by saying she felt, as Chloe got older, she would need her mother more in her life and “when I am with her, I sense that she feels a deep sense of loneliness at being estranged from me like this”. She stated “as her mother I feel it is absolutely not in [Chloe’s] best interests to have such limited contact with me”.
[29] Also filed was a brief four paragraph affidavit from Mr Carter of 12 September 2019. In that, he said:
3. I have now read the Family Court decisions dated the 20th of January 2017 and the 22nd March 2019, and now accept the conclusion of Judge Walsh that Mr [Oliver] did not sexually abuse [Chloe] when playing with her. I give an undertaking that I will not raise this matter again, nor make any disparaging remarks about Mr [Oliver] in the presence of [Chloe].
4. I completely accept and understand that [Chloe] needs to have healthy positive relationships with both her paternal and maternal family.
[30] The father filed an affidavit on 17 September 2019. Much of it refers back to matters that had been the subject of the proceedings in the Family Court or were by way of submission based on his perception of the relationship and what had happened in the Court proceedings over previous years. He objected to the way the mother had referred in her documents to Chloe as “my daughter” rather than our daughter. He said:
When [Chloe] was first placed in our care (Gran and myself) she would not go under the water she would not sleep well she would cry a lot. [Chloe] has come a long way to return her to [Emma’s] care I believe would definitely be a step backwards for [Chloe’s] development. [Chloe] is well settled at [her primary school].
[31] Ms Gibson, counsel for Chloe, filed a memorandum on 17 October 2019. She advised the Court she had met with Chloe, then […] years old, at her primary school on 25 September 2019. The Court was advised:
(a) Chloe spoke most positively of her primary school and her friends there;
(b) Chloe talked of how she had been living with her father and grandma […]. She spoke positively about her grandma and her father and said she had her own bedroom. She said there was nothing that upset or worried her at her dad or grandmother’s home;
(c) Chloe had not seen her mother for a while but when she did see her it was “good”. She said it would be good to see her mother every second weekend but would like it to be scheduled so she can see her father’s son when that son has time with his father; and
(d) Chloe’s teacher said Chloe had settled in really well and was progressing academically exactly where she needed to be. The school had no issues regarding her hygiene and no concerns in terms of her care.
Approach on appeal
[32] This is a general appeal which, by virtue of s 143(4) Care of Children Act 2004 (CoCA) and s 127 District Court Act 2016, means the appeal is by way of rehearing.
The principles set out in Austin Nicholls & Co Inc v Stichting Lodestar apply.3
[33] For the appeal to be successful, it is incumbent on the mother to satisfy this Court that it should differ from Judge Walsh’s decisions. However, I am required to make my own assessment of the merits of the case. As mentioned by Ms Gibson, Duffy J in B v B, commenting on the application of the Austin Nicholls & Co Inc v Stichting Lodestar principles, stated:4
… I must accept responsibility for determining what is in the best interests of the child. It also means that I should not confine myself to focusing on whether or not the Judge has committed an error of law or some procedural error in reaching his judgment.
[34] The welfare and best interests of the child must be the Court’s first and paramount consideration in any proceedings relating to the care arrangements for that child.5 The above must also be considered in light of the principles set out in ss 5, 5A and 6.
[35] In Kacem v Bashir , the Supreme Court noted s 4(2) of the Act “underlines the case specific nature of the inquiry” into a particular child’s circumstances.6
3 Austin Nicholls & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
4 B v B [Relocation] [2008] NZFLR 1083 (HC) at [44].
5 Care of Children Act 2004, s 4.
6 Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [18].
[36] Although the decision was determined prior to the 2013 amendments, the importance of applying the principles of s 5 was reaffirmed in Kacem v Bashir.
[37]Section 5(a) CoCA requires the Court to protect the child’s safety.
Submissions
[38]Through counsel’s submissions, the mother sought:
15. … a declaration from the High Court that the Second Decision was unlawful, and that the access that Mother had to [Chloe] prior to the Second Decision be reinstated. Further, that the First Decision and the matter of [Chloe’s] day-to-day care be referred to the FC for a rehearing, because of the passage of time, and because of the fact that Mr [Sinclair] had not been part of Mother’s life for over two and a half years.
[39] In submissions, Ms Mason, for the mother, submitted the first decision was essentially grounded upon physical and emotional safety concerns relating to Mr Sinclair. His relationship with the mother had been at an end for two years. Counsel submitted that change in circumstances was sufficient to warrant a reconsideration of the first decision, by way of referral back to the Family Court. Ms Mason said the focus of the appeal was now for the mother to have unsupervised contact with Chloe.
[40]The mother further contended:
i. the weighting accorded to the various principles in section 5 of the Care of Children Act 2004 (“CoC Act) are not supported by the facts and evidence that were before the FC;
ii. the views of the Child were not properly ascertained and, in any event, were not accorded sufficient weight;
iii. the views of the registered psychologist were accorded substantial weighting, even though they were, in large part, speculative;
iv. the role of Mother and her father, in releasing certain footage to the media, inappropriately influenced the Second Decision from the outset, to such a level that the outcome was pre-determined;
v. the suitability of the living circumstances of Father were not objectively and properly considered, against the requirements for the Child to have a secure relationship with her Mother;
vi. the safety issues associated with Father were not objectively and appropriately considered, nor given sufficient weight;
vii. overall, the interests of the Child were not sufficiently considered, nor accorded the weighting required under the CoC Act;
viii. irrelevant matters were considered, whilst relevant considerations were ignored;
[41] In his brief submissions, the father explained why he considered supervised contact was still necessary and why he did not consider the mother was able to protect Chloe from contact with others which would not be in her interests.
[42] Counsel for Chloe, Ms Gibson, made helpful and detailed submissions, responding to the criticisms made of the two decisions. Ms Gibson asked for the appeals to be dismissed. She referred to various passages in the decisions where the Judge had discussed matters which the mother said had received inadequate or no attention. She also referred me to evidence which was not consistent with the submissions advanced for the mother. Her submissions are reflected in this judgment.
Discussion as to appeal against the first decision
[43]I reject the criticisms made of the first decision.
[44] Ms Gibson had carefully provided information as to how Chloe thought of her father and of her then home position as appropriately as she could given Chloe’s age and maturity. She reported to the Court accordingly on 14 October 2016, 5 December 2016 and 13 January 2017. The Judge also had and referred to evidence from the psychologist, Ms Deo, as to what Chloe had said to her. He referred to Ms Deo’s evidence, consistent with the contact supervisor’s report, that Chloe was happy to interact with her father and was particularly fond of a sibling who she had contact with through her father. He also referred to ways in which Chloe had spoken negatively of, or referred to, her father that were in contrast to their observed interaction, and which Ms Deo had been convinced was because of the way Chloe had been exposed to Mr Sinclair’s negative views about her father.
[45] The Judge introduced his discussions as to the terms of a final parenting order by referring to ss 4 and 5 CoCA, which provide that Chloe’s welfare and best interests are paramount. He then specifically dealt with the various principles which required
consideration in terms of s 5(a)-(f). In her oral submissions, Ms Mason said she was not arguing that the Judge had made an error of law.
[46] The Judge discussed whether Chloe would be safe in her father’s day-to-day care. In doing so, he expressly referred to the father’s previous convictions, noting he had no violence-related offending for approximately 21 years. He referred to the father completing a Stopping Violence Programme and, on a voluntary basis, a further stopping violence-related programme or counselling. He also spoke of the positive relationship the father had with his former partner and their […] children and of the good relationship the Judge accepted he had for the victim of the male assaults female conviction.
[47] The Judge referred to the “careful cross-examination” of the father by mother’s counsel and by Ms Gibson. The Judge had the advantage of hearing and seeing the father respond to that questioning, described him as being “refreshingly open, measured in his responses” and, in summary, found him to be a “straightforward, credible witness”.
[48] The mother appealed both decisions on the ground the views of the registered psychologist, Ms Deo, were accorded substantial weighting, even though they were, in large part, speculative.
[49] I do not consider there was any error in the way the Judge referred to evidence or opinions from the psychologists who provided reports to the Court, initially Mr Parkhill and then Ms Deo. The latter was cross-examined extensively at the hearing. Ms Deo expressed an expert opinion as to the potential risks and benefits to which Chloe would be exposed, both in terms of a continuation of the status quo and a potential change. Inevitably, such opinions involved a degree of prediction, as did the Judge’s determination on all issues. Ms Deo’s opinions were however based on the information she had obtained as to the past conduct of all family members and how those circumstances were impacting Chloe. Not all Ms Deo’s predictions were contrary to what the mother would have wanted. The Judge referred to Ms Deo having predicted “a change in care is quite likely to be very disruptive and traumatic (at least in the short term) for [Chloe] since she is securely attached to her mother”.
[50] The mother, through counsel, also criticised the Judge for placing weight on Ms Deo’s opinion in certain respects in concluding the mother’s future contact with Chloe had to be supervised, when the Judge had earlier found in her reports, she had expressed views that were based on assumption rather than evidence.
[51] As to the first decision, such criticism related to Ms Deo reporting that during a former partner’s relationship with the father there had been no violence when an earlier report from Mr Parkhill indicated there had been violence.
[52] The mother complained Ms Deo had failed to mention the father’s violence towards a previous partner. The Judge said he placed little weight on the alleged omission because of Ms Deo’s reasonable explanation that, if there was violence, it would have been historical. The Judge said he also had to be cautious in dealing with the suggested violence given Mr Parkhill had never sought the father’s explanation about what had occurred.
[53] The Judge did not simply accept Ms Deo’s opinions. The Judge took the radical step of directing an immediate change in the child’s day-to-day care, with reference to evidence provided to the Court in ss 132 and 133 reports, but also with reference to his own assessments of all the evidence put before him. Ultimately, the decisions he made as to Chloe’s care were based clearly on his own judgment as to what needed to be done to advance Chloe’s psychological, social and educational development “and the way in which a parent can best meet those needs in the long term”.
[54] The particular risks to Chloe of Mr Sinclair continuing to be involved in her life were a significant factor in the determination he reached but the risks that, in the Judge’s determination, required a change did not relate solely to Mr Sinclair.
[55] As Ms Gibson referred to, the Judge also noted the mother’s unwillingness to promote the father in Chloe’s life. The Judge referred to the fact the mother enrolled Chloe at primary school (without the father’s consultation) under the name of “[Chloe Sinclair]”. She justified that by saying “that’s who she identifies with”. As to that, the Judge said:
[87] In my view, this response graphically illustrates Mother’s unwillingness to promote Father in [Chloe’s] life. Sadly, Mother at this time has no understanding of the potential harm she is causing to [Chloe] in confusing [Chloe’s] true identity. Under cross-examination, Mother was scathing of […] positive report about [Chloe’s] eagerness to see Father during the supervise [sic] visits in […]. In particular [Chloe] expressed a wish that the visits would not end and she wished to have the visits extended.
[56] The Judge also referred to a number of concerns he could reasonably weigh in the balance in assessing which parent would best be able to promote Chloe’s interests in the long term. In that regard, he referred to the way the mother’s unfounded allegations the father had sexually and/or physically abused Chloe were fabricated with the agenda of ousting the father from the mother’s life. The mother was taking mental health medication and had refused to give evidence against Mr Sinclair when he was charged with two breaches of a protection order and threatening to kill and assault. In these proceedings, the mother filed an affidavit in which she said Mr Sinclair had not assaulted her, despite previously swearing an affidavit alleging there had been such violence in support of obtaining a protection order against Mr Sinclair.
[57]The Judge concluded:
[72] … I do not find proven that any of Father’s behaviours pose any risk to [Chloe’s] safety and wellbeing. However, I do find proven that Mother poses a risk to [Chloe’s] emotional safety and wellbeing by firstly, her totally unjustified fixation that Father has physically and/or sexually abused [Chloe]. Secondly, her entrenched negative attitude about Father and thirdly, her relationship with Mr [Sinclair] …
[58] The Judge reached that conclusion while nevertheless noting the mother had been described by father as a “very good mother” and the lawyer for child had emphasised in her closing submissions that the mother was an excellent mother. He also referred to the way the mother was able to hold down a demanding and responsible job as a truck driver working long hours.
[59] I can find no error in the way the Judge determined how Chloe’s welfare could best be promoted when he made the orders set out in the first decision. That decision was based on a detailed and careful consideration of all the evidence put before him. He brought to bear, for the benefit of Chloe, the considerable experience and expertise he had in a specialist jurisdiction. I agree with the determinations he reached.
[60] The departure of Mr Sinclair from the mother’s life is no reason to remit the proceedings back to the Family Court to reconsider the first decision. The Court was required to review the appropriateness of the original orders in light of changed circumstances and intervening events in the hearing that took place over 6 and 7 November 2018, ultimately leading to Judge Walsh’s second decision of 22 March 2019.
[61] The way the mother pursued an appeal in the High Court also indicates the Judge was justified in a number of his assessments as to how the mother’s attitude about the father’s role as Chloe’s father put Chloe at risk. In her notice of appeal filed on 14 February 2017, the mother referred to her husband Mr Sinclair no longer being part of her life, but vehemently attacked the character of the father, setting out as a ground of appeal:
… that a simple comparison of the affidavit evidence filed by Mr [Oliver] against the transcript of evidence will disclose a pattern of falsehoods, instability and bad character which was not given sufficient weight by the Family Court Judge.
[62] In a brief affidavit filed just before the hearing of the appeal, Mr Carter said he now accepted the Judge’s decision that the father had not been involved in the sexual abuse of Chloe. Despite that, there was no detail in his affidavit to demonstrate he was willing and able to now be positive and supportive of the father as a parent to Chloe. In her affidavit, filed in the High Court just before the appeal was heard, the mother said nothing about accepting the Judge’s decision that the father had not physically or sexually abused Chloe. There was nothing in the evidence before the Family Court in November 2018 to suggest the mother and Mr Carter had, in the interim, been supportive of the father as a parent to Chloe. The evidence was to the contrary.
[63] Although the appeal was advanced in part on a change in circumstances, through her counsel’s submissions, the mother continued to make an attack on the father’s character through the submission that the Judge had failed to consider or gave inadequate weight to what she claimed to have been misconduct on his part in the past.
[64] There was a section of counsel’s submissions as to the appeal against the first decision under the heading “Father’s violence not considered”. Under that heading, counsel submitted:
Mother appeals the First Decision on the grounds that those matters which portrayed Father in a negative light received scant attention in the Decisions.
[65] Counsel referred to the Judge’s conclusion that “there is not a skerrick of evidence that father sexually and/or physically abused [Chloe]”, but went on to say:
Mother and her family are no longer pursuing the sexual abuse allegations, and have accepted the judgment of the Court, as set out in the affidavit of [Mr Carter] dated 12 September 2019.
But, also:
Whilst Mother and her family have accepted the First and Second Decisions, this does not change the submission that the Court failed to appropriately take into account other matters related to father, in particular concerns about violent and controlling behaviour.
[66] Counsel referred me specifically to passages in the transcript of evidence where the psychologist, Ms Deo, was cross-examined about aspects of the mother’s minimisation of domestic violence she suffered from Mr Sinclair but also such matters as the father’s suggested dysfunctional relationships, convictions from 1996, involvement in a Stopping Violence programme and his assaulting Mr Sinclair after the father said Mr Sinclair had turned up at his address with a tomahawk and was flailing on the ground. Counsel submitted the Family Court had placed a great deal of emphasis on its views of the mother and Mr Sinclair, and the violent behaviour on the part of Mr Sinclair but did not extend its analysis to the violent behaviour of the father.
[67] At the hearing of the appeal, Ms Mason told me the mother does not accept she and Mr Carter had an entrenched anti-father stance. That is contrary to the evidence. The fact she still holds that opinion suggests she still has no insight into just how her past behaviour impacted negatively on Chloe’s relationship with her father and of how it was not conducive to Chloe’s wellbeing. The fact she still holds that opinion indicates she has no appreciation of how that needed to change.
[68] In the first decision, the Judge referred the mother and father for further specialist counselling to assist both or either of them for the purposes of:
(a) improving the relationship between Chloe’s parents as separated parents and guardians;
(b) encouraging compliance with Court orders and directions; and
(c) assisting the mother in understanding the dynamics of domestic violence.
There was no evidence to indicate the mother had sought to obtain such assistance.
[69]For all these reasons, the mother’s appeal against the first decision is dismissed.
Appeal against the second decision
[70] The mother sought to appeal against the second decision through filing a memorandum of counsel seeking leave to amend the notice of appeal and including the amended notice of appeal. That notice included an appeal against the whole of the second decision of 22 March 2019. In her memorandum, counsel sought such leave on the basis the two decisions were inter-related and one could not be considered in isolation of the other.
[71] Pursuant to r 20.4 High Court Rules, an appeal against the second decision had to be brought within 20 working days of the decision, that is by 23 April 2019. By special leave, the High Court could extend the time prescribed for appealing. The application had to be made by interlocutory application. No such application was made.
[72] Counsel have however made submissions as to the merits of the purported appeal against the second decision. I will thus proceed as if the application for leave to file the amended notice of appeal was an application extending the time for an appeal.
Submissions
[73] The mother appealed the second decision again on the grounds Chloe’s views were not properly ascertained and those that were available were not accorded sufficient weight.
[74] Counsel for the mother submitted the second decision was biased and predetermined on the basis:
a.Mother’s reaction to [Chloe’s] complaint that Father was still touching her genital area was not assessed objectively and in the context of the particular circumstances. When assessed in the particular circumstances, and objectively, Mother’s reaction did not constitute emotional abuse, and was a natural reaction for a Mother to have;
b.likewise, the reaction of Mother’s father, Mr [Carter], was based on a genuine belief in relation to the circumstances that existed at that time, and was not objectively assessed. Mr [Carter], has now deposed that he accepts the Second Decision; and
c.substantial weight was given to Mother’s reactions at the time of [Chloe’s] uplift, and to the media coverage. The assessment and interpretation of her reactions is biased and have been cast in an extremely negative light. Her reaction was motivated by her love for her daughter, and care for her wellbeing. Her view of her actions has not been considered at all;
d.the actions of Father in applying for a without notice uplift order, without first contacting Mother, was not considered at all. Neither was the trauma inflicted upon [Chloe] by his actions.
[75] Counsel also argued, in the second decision, the Court had “reactivated her historic sexual abuse complaint against the father” and contended the Judge had taken “no account of the fact that [Chloe] had raised the issue herself following Air New Zealand’s refusal to permit [Chloe] to board her flight”.
[76] The mother also contended the weighting, according to the various principles of s 5 CoCA, was not supported by the facts and evidence presented to the Family Court.
[77] In careful and detailed submissions, cross-referenced to evidence and relevant passages of the Judge’s decision, Chloe’s counsel, Ms Gibson, responded to the mother’s criticisms of the second decision. Again, her submissions are reflected in my judgment as to this aspect of the appeal.
Discussion as to appeal against second decision
[78] I reject the contention that Chloe’s views were not properly ascertained or accorded sufficient weight.
[79] The second decision resulted from a hearing on 6 and 7 November 2018. Chloe’s counsel, Ms Gibson, filed a memorandum with the Court dated 10 February 2017 reporting, amongst other matters, on the contact she had with Chloe in […] on 30 January 2017 after the Court had placed Chloe in the day-to-day care of the father. Counsel reported that Chloe had no negative comments as to her new care arrangements, was excited about her new school and wanted to show her counsel through her new home. Counsel also advised she had spoken to the Principal of Chloe’s new primary school. The Principal told counsel on 7 February 2017 that Chloe had “settled in really well”.
[80] In a further report provided to the Court on 8 September 2017, counsel referred to a report from Chloe’s school Principal that Chloe appeared to be enjoying attending her primary school. Chloe also told counsel she was enjoying school and mentioned making a Fathers’ Day card for her father. Counsel advised that Chloe said she was sad it was taking a long time for supervised visits from her mother to start.
[81] Ms Gibson provided a further report to the Court on 29 October 2018. She began that report with the observation “[Chloe] deserves the right to have positive healthy relationships with both her parents and extended families but her safety in all respects must be protected”. Ms Gibson advised she had travelled to […] on 25 October 2018 and met with Chloe and her primary school Principal. The Principal reported that Chloe was doing well at school, appeared settled, had a good daily routine and, in terms of socialisation, had a good group of friends and was invited to birthday parties.
[82] The Principal said there had been changes in Chloe’s mood at the time she had her first contact visit with her mother but her behaviour “had been very settled during the period she was not seeing her mother”. The Principal also indicated there had been no comments, positive or negative, regarding the mother’s visits since that first visit. Separately, counsel had spoken to Chloe at the primary school. Chloe spoke positively of the visits she had from her mother with a supervisor. She spoke positively about her father and grandmother with whom she was living. She told counsel “there is nothing I don’t like about my daddy”. Chloe told her counsel she wanted the Judge to
know that she would “like her mum to come and live with her and live with both of her parents”.
[83] Judge Walsh noted it was a mandatory requirement under s 6(2)(b) that Chloe’s views be taken into account. He referred to the psychologist’s report from 15 June 2018 that Chloe had told the psychologist she had not seen her mother for a very long time, that she wanted to see her mother and she missed her mother. He also pointed out this did not mean her views would be determinative of what the Court orders should be. He needed to have regard to her age, her level of maturity and awareness of all relevant factors.
[84] The Judge highlighted a statement that the father made under cross- examination to mother’s counsel “you know she misses her mother dearly. That’s not in dispute. The dispute is, is she safe in [Emma’s] home.”
[85] I am satisfied the Judge was adequately informed as to Chloe’s views and took them into account. He made it clear in his decision that he wanted Chloe to be able to have unsupervised time with her mother. He decided he could not allow for that in the orders he was making because of the paramount need for Chloe to be protected from psychological and emotional abuse. In reaching that decision, he referred to s 5(a) CoCA and the Court’s obligation to protect Chloe “from all forms of violence (including psychological harm) as defined in s 3(2)-(5) of the Domestic Violence Act 1995 from all persons including members of the child’s family”.
[86] The Judge’s finding, that Chloe had been subjected to psychological abuse and would be in the future if there was unsupervised contact, was a determination he quite properly reached on all the evidence before him.
[87] Judge Walsh found the mother had undermined the terms of the interim parenting order by repeatedly telling Chloe she would be returning to the mother’s care. He referred carefully to the evidence he accepted as the basis for that finding. There was no error in the particular findings or determination he made in arriving at that conclusion.
[88] Judge Walsh said he was in no doubt that the mother and Mr Carter were in league to discredit the father by continuing to promote a malevolent interpretation about the father’s actions with his foot towards Chloe for various reasons. The evidence he referred to fully justified his determination in this regard.
[89] In making that determination, the Judge had to make findings as to both the honesty and reliability of the mother’s evidence. On several important issues, the Judge found the mother was inconsistent and unreliable with conflicting evidence. For instance, the Judge noted the mother’s position that the psychologist had spent “less than an hour with her, that she did not ask if she had any concerns for [Chloe] or what she wanted for [Chloe].” She said the psychologist “was not interested in anything that I actually had to say”. The Judge noted factual disputes can be resolved only by determining the believability of human witnesses or by weighing conflicting circumstantial evidence. The Judge did that carefully in his decision with reference to relevant evidence. Having done that, he did not accept the mother’s evidence.
[90] At paras [193]-[230] of his decision, Judge Walsh referred to the evidence which required him to find that Chloe had been psychologically abused. He then concluded, it having been proven that the mother and a member of her family group, namely Mr Carter, had psychologically abused Chloe, all future contact between Chloe and her mother had to be supervised to ensure Chloe’s safety. There was no error in his weighting the need to ensure her safety while recognising Chloe’s wish to have contact with the mother in this way.
[91] The mother criticises the determinations the Judge made as to the way the mother and Mr Carter reacted to the possibility the father had touched Chloe’s genital area. After carefully considering relevant evidence and determining, as to that, the father was a significantly more credible witness in asserting his innocence than the mother had been in putting forward her position, the Judge concluded the father had not acted inappropriately towards Chloe. There was no error in the determination the Judge came to in this regard. Through Mr Carter’s affidavit filed just before the appeal hearing and counsel’s submissions, both the mother and Mr Carter purport to accept the determination the Judge made.
[92] As to the mother’s concerns about what she believed had happened, the Judge was in no doubt she was intent on gathering sufficient evidence about Chloe’s safety in the father’s care to apply to the Court to have Chloe returned to her care. He also referred to Mr Carter’s “fixation about the father” and his determination to have Chloe evidentially interviewed.
[93] Ms Gibson helpfully provided a timeline as to the disclosures the mother says justified her having concerns about what she was suggesting had happened between the father and Chloe. I accept the mother’s suspicion of some form of indecent touching was not based on anything Chloe had said at the outset. It was the mother who raised it as a possibility by telling a doctor in May 2017 of allegations that had been made as to such conduct in 2014 (allegations that had been rejected by the Judge in the first decision). It was the mother who told another doctor on 6 June 2017 that Chloe had made a disclosure of such conduct and who asked the second doctor to report the disclosure to Oranga Tamariki.
[94] Chloe was in […] in her mother’s care between 9 and 11 June 2017. On 11 June 2017, she refused to board the Air New Zealand flight at […] airport. Agreement was reached by Mr Carter with the airport Police that Mr Carter would return her to […] the next day, Mr Carter driving and arriving by midday. On the return drive from the airport to the mother’s home, Chloe said something which led the mother and Mr Carter to take Chloe to a doctor and ultimately to a scoping interview with two Oranga Tamariki social workers. Chloe was not returned to her father as had been agreed with the airport Police.
[95] On 13 June 2017, the father applied without notice and was granted a warrant to uplift Chloe. The Judge ordered the mother’s contact was to be varied to supervised contact. At 6.18 pm, three Police officers arrived at the mother’s home and executed the warrant, uplifting Chloe. Mr Carter and the mother then videotaped the uplift with a cell phone. On 7 July 2017, a Judge chaired a judicial settlement conference in which the Judge recorded “for the avoidance of doubt, (the mother) is not to record any communication involving [Chloe] and that includes communications during the period of contact supervised by Family Works”.
[96] On 8 August 2017, [TV] featured a video of Chloe (face pixelated) in a distressed state, being uplifted by Police. The video was also run on the […] 6.00 pm main news bulletin and circulated widely on social media.
[97] The mother’s counsel was critical of the Judge for what she suggested was his biased reaction to the uplift and the media coverage. She argued that the Judge had not considered at all that the mother’s reaction was motivated by love for her daughter.
[98] There was no predetermination or bias in the determination as to what happened over the uplift, the filming of it and Mr Carter’s contact with the media.
[99] The Judge carefully outlined the thrust of the mother’s case as to what happened in June 2017. He outlined what the mother had to say about relevant events but with reference also to what she had said when cross-examined by Ms Gibson. He also carefully went through what had happened when she took Chloe to a doctor on 27 May 2017 and what she did subsequently in taking Chloe to another doctor, part of the background to what occurred in June 2017. He carefully went through events over the weekend of 9-13 June 2017. The Judge referred extensively to what the mother had to say when questioned by Ms Gibson about what had happened during the uplift and the filming of it.
[100] After a detailed consideration of the evidence, the Judge concluded “mother provided a very sanitised account regarding her involvement in [Chloe’s] filming and her ability to console [Chloe]”. He did not accept mother’s “innocent” explanation as to her involvement. He found that:
… she and Mr [Carter] deliberately strategized to continue with allegations that [Chloe] is a [sic] risk in her Father’s care, that [Chloe] should be evidentially interviewed, and that [Chloe’s] uplift receive media attention.
[101] The evidence fully justified the Judge’s determination in this regard. I do not accept that the Judge failed to consider the mother’s motivation for acting as she did over the uplift. In carefully considering the mother’s motivation, the Judge found:
Mother is still convinced that [Chloe] is unsafe in father’s care and she only belatedly attempted to down-play the seriousness of her claims at the hearing to suit the thrust of her case for [Chloe] to be returned to her care in […].
[102]That determination was part of what led him to conclude:
I find that [Chloe] is at risk of suffering or being exposed to psychological abuse by hearing comments in Mother’s […] household, in particular from Mr [Carter], who is fixated in the belief that [Chloe] was sexually abused by Father. I find that Mr [Carter], in response to the Court’s questions, was unrepentant in his quest to have [Chloe] evidentially interviewed.
[103] I reject the contention there was any element of inappropriate predetermination or bias in the way the Judge made findings as to what happened in June 2017 and then took those findings into account in determining what final orders should be made.
[104] I also reject the contention the release of certain footage to the media had inappropriately influenced the second decision to such an extent the outcome was biased and predetermined. The Judge was concerned for Chloe because of the way invasive media attention could be injurious to her long-term welfare, not to mention her privacy. The Judge however noted there was nothing unlawful in Mr Carter and the mother filming the uplift. He also stated the mother and Mr Carter were entitled to approach the media but he went on to state that he agreed with counsel “that this has no relevance to [Chloe] (and her mother’s) right to have a close and meaningful relationship”.
[105] The Judge referred to the fact that, in the first decision, he had recorded the Court’s judgment, or any portions of it, were not to be published electronically without his leave. In the second decision, the Judge noted “however, the manner in which the Court “documents” were released, without the Court’s permission, to the media is a separate issue”.
[106] The Judge was justified in his concerns but it is apparent from the second decision that they were not inappropriately weighed in his final determination. They were justifiably relevant as part of the basis for his concluding the mother and Mr Carter had an unjustified fixation that the father had physically, sexually and emotionally abused Chloe.
[107] Appropriately, the Judge’s concerns were relevant to his determination that he could have no confidence the mother and her parents would respect Court imposed
conditions not to have Chloe further interviewed or examined or to release confidential information concerning her.
[108] The mother, through counsel, also criticised the Judge for finding that the mother had reactivated her sexual abuse complaint against the father and had taken no account of the fact Chloe had made a complaint as to this after she refused to board her plane to return home to her father.
[109] The Judge referred to Ms Gibson’s cross-examination of the mother when the mother sought to justify the way she had responded to what Chloe had said. The mother took Chloe to a doctor, Dr […], and to a scoping interview with two Oranga Tamariki social workers on 12 June 2017. She also had contact with the Police. She made a complaint about a Oranga Tamariki social worker, […], who had reported, after meeting with Chloe on 3 July 2017, that her complaint over soreness in her vaginal area was because her father had not put ointment on it. Chloe had also told […] that she had not wanted to get on the plane to come home and that she wanted to go back to [her old school], “not because I don’t like [her present] School but mum wants me back and tells me I will be coming back to live with her when I am sick”.
[110] It was only after he had carefully considered all the evidence as to what happened in connection with Chloe’s refusal to get on the plane and the subsequent uplift that the Judge concluded the mother and Mr Carter had “deliberately strategized to continue with allegations that [Chloe] was at risk in her father’s care”.
[111] In oral submissions for the mother, Ms Mason submitted the only conduct the mother had been involved in, arguably negative to Chloe’s welfare, since the first decision was what she submitted was the understandable way the mother had responded to comments made by Chloe and her refusal to get on the plane in June 2017. She suggested, if any such issues were to arise again in the future, they could be adequately dealt with through the parents putting in place a protocol as to how issues would be addressed.
[112] I reject those submissions. The events of May and June 2017 were analysed carefully by the Judge in the context of all the evidence as to the mother’s attitudes
and conduct before and after that time. With that analysis, the Judge assessed the extent to which Chloe could be at risk of psychological abuse if the mother was to have unsupervised contact with her.
[113] As Ms Gibson submitted, the mother and Mr Carter had been hostile towards the father when they had unsupervised contact with Chloe. Neither had helped Chloe’s emotional wellbeing by making statements to her suggesting she would soon be back living with her mother. Despite the belated acceptance of the Judge’s decision that the father had not sexually or physically abused Chloe, the appeal was advanced on a basis that was still anti-father.
[114] Ms Mason submitted the mother’s reactions and conduct over what happened in May and June could be interpreted in different ways. That is true, but there was no error in the particular interpretation or conclusion the Judge came to in this regard. I agree with it.
[115] I also reject the submission that the Judge failed to consider the distress caused to Chloe by the uplift. The Judge had considered this when finding the mother could have taken appropriate steps to prepare Chloe for the arrival and could have been “proactive in soothing [Chloe] when she became emotional”. The Judge also referred to the report from the social worker, […], of 6 July 2017 which stated:
NZ Police reported that during the uplift [Chloe] presented as being distressed. They observed that mother did not comfort [Chloe] but was busy videotaping [Chloe]. Police state, once they returned with [Chloe] to the Police station, [Chloe’s] behaviour changed quickly from being upset to a happy child who was enjoying playing games with Police staff.
[116] The Judge said he rejected the mother’s then counsel’s submission that the father was at fault in applying for a warrant. He found nothing untoward or improper in the father filing the without notice application for a warrant in the circumstances he was faced with, namely, the non-return of Chloe to […] and the complete absence of any communication about the reasons for Chloe’s retention. He found “in law, and in the circumstances facing father, he was fully justified in seeking a warrant”.
[117]I agree with the conclusion the Judge reached in this regard.
[118] As to the second decision, the mother also appealed again on the ground that the views of the psychologist were accorded substantial weighting, even though they were in large part speculative.
[119] The psychologist provided an opinion as to how the attitudes of the mother and Mr Carter might put Chloe at risk in the future. It could be said her opinion was speculative but it was appropriate for the psychologist to provide her expert opinion in that way. It was the sort of assistance the Court was looking for in having her provide s 132 reports. Predictions as to future conduct had however to be based on past events and all the information the report writer, Ms Deo, had gathered as to those events, including the mother’s explanations. The reports Ms Deo provided to the Court, dated 6 July 2017 and 6 July 2018, were of that sort. The mother’s counsel had not required Ms Deo to be available for cross-examination.
[120] As to the second decision, the mother was critical of the Judge placing weight on Ms Deo’s evidence after he found she had made an assumption as to the reason for Chloe’s distress at having to go on the plane to return to her father after a contact visit.
[121] The Judge accepted Ms Deo had made assumptions in attributing Chloe’s distress at having to go on the plane to Chloe being aware of her mother’s criticisms and negativity as to the way the father was caring for Chloe. Under cross-examination, Ms Deo acknowledged she had made an assumption as to that having been the reason for the child’s distress.
[122] The Judge pointed out that, in her s 133 report, Ms Deo had not attributed Chloe’s distress to something her mother did or said. The Judge nevertheless accepted Ms Deo had conceded there had been an assumption on her part. He went on to say he placed no weight on Ms Deo’s assumption. He said:
I find no direct evidence of mother coaching [Chloe] but I am concerned that if mother’s future contact was unsupervised, particularly in her current environment in […], there is a real risk that will occur over time given Mr [Carter’s] unbridled ambition to have [Chloe] evidentially interviewed.
[123] The Judge was quite entitled to derive support from those aspects of Ms Deo’s reports and evidence he accepted and agreed with. The fact he did not accept
everything she had to say is indicative of the careful way he considered all the evidence before him.
[124] On all the evidence, the Judge was fully justified in concluding the father had not indecently touched or physically assaulted Chloe in any way after Chloe had been placed in his care through the first decision and the interim orders that were then made. I was told by counsel that the mother and Mr Carter are accepting of the decision the Judge made in this regard.
[125] The Judge found Chloe was well settled and secure in her father’s day-to-day care. He found the father was sincere in his wish to have “ongoing consultation and cooperation” with the mother. He referred to positive statements the father had made about the mother being a good mother. The Judge acknowledged that both parents sought to have a close and loving relationship with Chloe but he found, despite the separation of the mother and Mr Sinclair, “Mr [Sinclair’s] absence from the […] household has not altered the entrenched negative/anti-father stance adopted by Mother and her parents”.
[126] The conclusion the Judge reached in this regard was justified on all the evidence.
[127] As to the claim of bias or predetermination, the Court of Appeal, in Muir v Commissioner of Inland Revenue, said:7
[62] In our view, the correct inquiry is a two-stage one. First, it is necessary to establish the actual circumstances which have a direct bearing on a suggestion that the Judge was or may be seen to be biased. This factual inquiry should be rigorous, in the sense that complainants cannot lightly throw the “bias” ball in the air. The second inquiry is to then ask whether those circumstances as established might lead a fair-minded lay-observer to reasonably apprehend that the Judge might not bring an impartial mind to the resolution of the instant case. This standard emphasises to the challenged Judge that a belief in her own purity will not do; she must consider how others would view her conduct.
7 Muir v Commissioner of Inland Revenue [2007] NZCA 334, 3 NZLR 495, at [62].
[128] As submitted by Ms Gibson, the following broad principles for the determination of whether a reasonable apprehension of bias may arise were articulated in Muir:8
(a) a judge should not decide a case on purely personal considerations;
(b) there should not reasonably be room for a perception that the judge will decide the case on anything but the evidence in front of him or her;
(c) a judge must be in a position to consider all potentially relevant arguments; and
(d) there may conceivably be a series of events or rulings which reasonably warrant an inference that the challenged judge’s perception is warped in some way.
[129]The Supreme Court, in Saxmere, endorsed the approach in Muir.9
[130] In Jessop v R, the Supreme Court adopted with approval the following statement from Locabail (UK) Ltd v Bayfield Properties Ltd:10
… The mere fact that a judge, earlier in the same case or in a previous case had commented adversely on a party … would not without more found a sustainable objection … But if in any case there is a real ground for doubt, that doubt should be resolved in favour of recusal.
[131] There is nothing in the Judge’s decision to suggest he did other than bring an impartial mind to consideration of all the evidence before him. In that consideration, he had to have regard to the background to all that had occurred which he was concerned with. The background included the interim orders made by the Judge in the first decision and the determinations the Judge made on the various evidential issues he was dealing with in that decision.
8 See Muir v Commissioner of Inland Revenue, above n 6, at [64].
9 Saxmere Co Ltd v Wool Board Disestablishment Company (No 1) [2009] NZSC 72, [2010] 1 NZLR 35 at [3].
10 Jessop v R [2007] NZSC 96 at [6]; Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451 (CA) at 480, [2000] 1 All ER 65.
[132] Had a new Judge been presiding over the November 2018 hearing, that Judge would have had to proceed in the same way. In proceedings concerning CoCA issues, where the welfare and best interests of a subject child are paramount, it cannot be the case that a Judge, who has become fully informed as to a child’s circumstances and how the actions, attitudes or personalities of other family members might be impacting either adversely or negatively on that child’s welfare, should have to disqualify themselves from a future involvement in the proceedings because they have become so informed.
Conclusion
[133] There was no error in the way Judge Walsh arrived at all the determinations which were crucial to the second decision and the final orders which were then put in place. His judgment was based on a detailed and careful assessment of all the evidence with express regard to the submissions made by the mother’s then counsel. There was no error in the way he referred to and applied the principles in s 5 CoCA. His decision focused squarely on his assessment as to what arrangements would best promote the welfare and interests of the young child who both parents love.
[134] In both the first and second decisions, Judge Walsh encouraged the mother to avail herself of counselling and other specialist help. He hoped, with that help, she could reduce the risks to Chloe that had required him to find the mother’s contact with Chloe had to be supervised. There was no evidence before the High Court to indicate the mother had heeded the Judge’s advice. There is nevertheless the opportunity for her to do so.
[135] Chloe would benefit from having safe and regular contact with her mother. It was submitted for the mother that, with evidence as to the change in the mother’s circumstances, this Court should now remit the proceedings back to the Family Court so the mother can seek unsupervised contact in that Court. In his second decision, Judge Walsh said, for Chloe to have safe contact with her mother, it would have to be supervised. There was no error in that decision. There is nothing in the further evidence now before this Court to indicate there has been a material change in all the relevant circumstances that would justify my remitting the proceedings back to the
Family Court. To do so, at this stage, would be to promote further conflict between the parents in a way that would be to the detriment of Chloe.
[136] The mother needs to demonstrate her ability to support the father in the responsibility he now has for the day-to-day care of Chloe. The mother needs to demonstrate she can work cooperatively with the father in arranging and having the supervised contact which is currently allowed for. She should also take advantage of the counselling resource which is still available to the parties and seek the further specialist help she needs to ensure there will be no risk to Chloe’s safety if future contact is unsupervised.
[137] I grant leave extending the time for the mother to appeal the second decision. Her appeal against that decision is dismissed, as is her appeal against the first decision.
Costs
[138] The father was self-represented. I accordingly make no order as to costs for his benefit.
[139] Ms Gibson was appointed under s 7 CoCA to represent the child who was the subject of this appeal. Her costs have totalled $15,957.80
[140] Regulations stipulate the parties must pay $10,638.50 to the Crown in reimbursement of those costs. Each party against whom an order is made must pay an equal share of the prescribed proportion, that is $5,319.25.
[141] The Court may decline to make an order against a party if satisfied the order would cause serious hardship to the party or to a dependent child of the party. Despite that, the Court may, in view of the circumstances of the case, including the conduct of any party, if satisfied it would be inappropriate to require a party to pay half the prescribed amount, substitute for that party a different amount not exceeding the prescribed proportion.
[142] The father and mother may file submissions on contributions to the cost of service provision as set out in s 135A CoCA. A form that can be used for that purpose
is available from the Ministry of Justice, MOJ0611/07/16. Such submissions are to be filed by 17 April 2020. On receipt of those submissions, I will make a determination as to what, if any, amount each party should have to pay on account of counsel for child’s costs in accordance with s 135A.
[143] Ms Gibson’s appointment as counsel for Chloe on the appeal is now terminated.
Publication of judgment
[144] In the second decision, the Judge referred to the restrictions in s 11B(3)(a) Family Courts Act 1980 on publication of any report of these proceedings. What Judge Walsh said in this regard applies equally to this judgment.
[145] Section 11B(3)(a)(iv) permits the publication of a report of the proceedings in a publication that is genuinely of a professional or technical nature for circulation amongst members of certain professional bodies provided it does not identify the names of the parties or the child. The judgment will be available for such publication but with the names of the parties, child and family members anonymised, and with the deletion of information that could lead to identification of the child.
Solicitors:
Phoenix Law Ltd, Wellington
Cuningham Taylor, Christchurch.
This judgment was delivered by me on 20 March 2020 at 5.00 pm pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date: 20 March 2020
0
4
1