U v Q
[2014] NZHC 109
•11 February 2014
PURSUANT TO SECTION 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO
11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE align="center">/COURTS/FAMILY-COURT/LEGISLATION/RESTRICTIONS-ON- PUBLICATIONS.
IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY
CIV-2013-442-270 [2014] NZHC 109
UNDER the Care of Children Act 2004
BETWEEN U Appellant
ANDQ Respondent
Hearing: 16 December 2013
Counsel: Appellant in person
J J Daley for respondent
G P Barkle, lawyer for child
Judgment: 11 February 2014
RESERVED JUDGMENT OF DOBSON J
Contents
Background........................................................................................................................................ [3] The parties ...................................................................................................................................... [3] Breakdown in the parties’ relationship ........................................................................................... [4] Current status ................................................................................................................................. [7] Applications made in the Family Court ........................................................................................ [10] Statutory framework ...................................................................................................................... [12] Family Court decision ..................................................................................................................... [20] Grounds of appeal ........................................................................................................................... [34] The risk assessment under s 61 ...................................................................................................... [37] Judge’s assessment of risk of future violence ................................................................................ [45] Sections 4 and 5 of the Act .............................................................................................................. [66] Holiday periods................................................................................................................................ [75] Costs ................................................................................................................................................. [83]
U v Q [2014] NZHC 109 [11 February 2014]
[1] The parties to this appeal are respectively the mother and father of a young girl (A) born in February 2004. The present appeal is brought from a judgment delivered in the Family Court at Nelson by Judge R J Russell on 14 June 2013, which made parenting orders defining the terms of contact between the father and A in three progressive stages. The mother’s appeal raises the terms on which a parent who is classified as a “violent party” under s 58 of the Care of Children Act 2004 (the Act) can be granted on-going and unsupervised contact with a child.
[2] The main issue in the appeal is the scope of evidence that can be taken into account when making an assessment of future safety under ss 60(4) and 61 of the Act. The father’s position was that only instances of proven violence should be taken into account, whereas the mother’s position was that once a parent has been classified as a “violent party” all evidence that is relevant to the child’s safety can be taken into account. The mother relied on a number of incidents that she characterised as inappropriate behaviour, which were not specifically referred to by the Family Court Judge. As a result, she submitted that the orders were not made having regard to all the relevant evidence, especially that which indicates a risk to the child’s safety.
Background
The parties
[3] The relationship between the parents commenced in April 2003. The mother previously had two children from an earlier relationship, a daughter, X, now aged 17, and a son, Y, now aged 15. The mother has shared care of X and Y with their father. The mother and father and those children began living together in Nelson. A was born on 1 February 2004. The father retired from a paid position in public life in order to support the family, and the mother continued in a professional practice in Nelson.
Breakdown in the parties’ relationship
[4] The parents separated on 31 December 2009, following allegations X had made of indecent assault by the father (that is, X’s stepfather). The father was found
guilty of three counts of indecent assault by a jury in the District Court at Nelson. On 16 June 2011, he was sentenced to 15 months’ imprisonment. He successfully appealed those convictions, on the basis that the jury, after viewing X’s videotaped evidence-in-chief for a second time, was not warned against giving disproportionate weight to that evidence in isolation from all other evidence including cross-
examination.1 The Court of Appeal ordered a retrial.
[5] The father was convicted on the same charges following a second trial, and he was sentenced to seven months’ home detention. Conditions attaching to the sentence included a requirement for him to undergo a psychological assessment, and to complete treatment or counselling. He was not to associate with anyone under the age of 17, unless specifically provided for in a Family Court order. These conditions are to apply as post-detention conditions for a further six months following the end of the home detention sentence. The father appealed against his conviction a second time. Pursuit of the appeal automatically suspended his sentence and the associated conditions.
[6] The second appeal was dismissed by the Court of Appeal, after the hearing of this appeal, in a decision delivered on 19 December 2013.2 The father continues to deny the allegations. However, the consequence of the criminal proceedings is that the father has three convictions for indecent assault against his stepdaughter, a “child of the family” as that term is used in the Act.3
Current status
[7] At the time of the Family Court decision under appeal, X was living overseas. The mother had purchased the former relationship home in Nelson, where she continues to live with A and Y. The father lives alone in rented accommodation in Nelson, where supervised contact with A occurs. At the time the father appealed his second convictions, he had served one month of his home detention sentence. In its decision dismissing the appeal, the Court of Appeal recorded that the home detention
sentence and associated conditions were to be resumed promptly, but asked counsel
1 ZZ (CA369/11) v R [2011] NZCA 662 at [23].
2 E (CA799/2012) v R [2013] NZCA 678.
3 Care of Children Act 2004, s 58.
to file memoranda on the appropriate date for resumption, given that it was so close to Christmas.4 The father had six months left to serve at the time his sentence resumed.
[8] A turned 10 on 1 February 2014. She is assessed as developing normally and appropriately for her age. Fortunately, she has remained insulated from the events leading up to, and the aftermath of, her parents’ separation. I will describe later in the judgment a plan that is in place for the parties to address these issues with A when it becomes appropriate, and not before. There is also to be a contingency plan as to how and what is explained to her in relation to her father’s convictions, in the event that she learns of them from a third party.
[9] The relationship between the parties has remained poor and largely intractable. There has been little agreement on the issues raised in these proceedings, although they were able to agree on terms for care of A over the 2013-14 Christmas holidays, and for a suspension of the effect of the decision under appeal, pending delivery of my judgment.
Applications made in the Family Court
[10] An interim parenting order was first made in favour of the mother on
7 January 2010. Supervised contact between the father and A was also ordered. Following a number of judicial conferences, and the completion of a s 133 psychological report by Mr Bryan Wright, a defended hearing was held on 6 October
2010, after which the following parenting orders were made:
(a) the mother was to have day-to-day care of A; and
(b)the father was to have supervised contact with A each Thursday for two hours, and in each second week, on Tuesdays for two hours and Saturday for five hours.
[11] In June 2012, the father applied to have those orders varied to allow him greater and unsupervised contact. The parties undertook counselling, but no
4 E (CA799/2012) v R, above n 2, at [125].
agreement was reached. The matter was set down for a two day hearing, and Mr Wright was re-engaged to update his report. In the interim, the contact order was varied to permit non-professional supervisors to supervise the father’s contact with A, subject to such supervisors being approved by counsel for the child. The hearing occupied three days at the end of May 2013.
Statutory framework
[12] The welfare and best interests of the child is the first and paramount consideration in determining parenting orders.5 In determining what serves the child’s best interests, the Court is directed to take into account any of the principles in s 5 of the Act, as far as they are relevant to the particular case. Section 5(e) requires the child’s safety to be protected, and in particular, that he or she be protected from all forms of violence, whether by family members or others. As a matter of law, this principle does not have presumptive importance over other principles in s 5, but in practice it is likely to have decisive weight due to the
importance of protecting the safety of the child to his or her welfare and best interests.6
[13] As well as the general considerations contained in ss 4 and 5, the Act provides mandatory considerations where one of the parties to the proceedings is a “violent party”.
[14] A person is classified as a violent party under s 58 if they meet the following definition:
violent party means a party to the proceedings against whom—
(a) there is currently in force a protection order for the protection of any of the following persons:
a. another party to the proceedings:
b. a child who is the subject of the proceedings:
c. a child of the family; or
5 Care of Children Act 2004, s 4(1).
6 Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [19], [22] and [47] and H v C
HC Christchurch CIV-2011-409-291, 16 December 2011 at [102].
(b) an allegation of violence is made that, on the basis of the evidence presented by, or on behalf of, the parties to the proceedings (without the court being required to make inquiries on its own initiative), the court is satisfied is proved
allegation of violence, in relation to a party to proceedings, means an allegation that that party has physically or sexually abused—
(a) another party to the proceedings; or
(b) a child who is the subject of the proceedings; or
(c) a child of the family.
[15] If the Court is not satisfied that an allegation of violence has been proved, but still considers there to be a real risk to the child’s safety, the Court may make any order that it sees fit to protect the safety of the child under s 61A.
[16] Therefore, an incident of violence that classifies a person as a violent party is one where an allegation of physical or sexual abuse against a party or a child is found by the Court to be proved on the balance of probabilities. In this case, findings of sexual abuse of X were made by Judge Mill in the first decision on parenting orders, independently of the two jury trials, and in accordance with the lower civil standard. Judge Russell in the decision appealed against also made a finding of physical abuse against the father in relation to an incident where he smacked A on a family holiday in Bali. Both incidents alone are sufficient for the father to be classified as a violent party.
[17] If an allegation of violence is proven, s 60 provides that a court cannot make an order allowing the violent party unsupervised contact with the child unless satisfied that the child will be safe:
60 Procedure for dealing with proceedings in section 59(1)
…
(3) In proceedings to which this section applies in accordance with section 59 (the proceedings), the court must not make—
(a) an order giving the violent party the role of providing day- to-day care for the child to whom the proceedings relate; or
(b) any order allowing the violent party contact (other than supervised contact) with that child.
(3A) Subsection (3) is subject to subsection (4).
(4) In the situation in subsection (3), the Court may make an order in subsection (3)(a) or (b) if, after complying with section 61, the Court is satisfied that the child will be safe while the violent party—
(a) provides day-to-day care for the child; or (as the case may be)
(b) has contact with the child.
(5) If, in the situation in subsection (3), the Court is not satisfied as provided in subsection (4), it may make an order for supervised contact between the child and the violent party, and, if it does so, the Court must specify in the order whether the supervised contact is to occur—
(a) under the supervision of an approved provider; or
(b) in the immediate presence of a person approved by the Court (for example, a relative, a friend of the family of the child, or any other person whom the Court considers suitable).
[18] The factors listed in s 61 assist the Court in determining whether the child will be safe:
61 Matters relevant to question in section 60(4)
In considering, for the purposes of section 60(4), whether a child will be safe if a violent party provides day-to-day care for, or has contact (other than supervised contact) with, the child, the Court must, so far as is practicable, have regard to the following matters:
(a) the nature and seriousness of the violence used: (b) how recently the violence occurred:
(c) the frequency of the violence:
(d) the likelihood of further violence occurring:
(e) the physical or emotional harm caused to the child by the violence: (f) whether the other party to the proceedings—
(g) considers that the child will be safe while the violent party provides day-to-day care for, or has contact with, the child; and
(h) consents to the violent party providing day-to-day care for, or having contact (other than supervised contact) with, the child:
(i) any views the child expresses on the matter (as required by section
6):
(j) any steps taken by the violent party to prevent further violence occurring:
(k) all other matters the Court considers relevant.
[19] If, after considering these factors, the Court is satisfied the child will be safe, then it may make unsupervised care or contact orders under s 60(4) of the Act, as are in the best interests of the child in his or her particular circumstances. If the Court is not satisfied that the child will be safe, then the Court may make a supervised contact order under s 60(5).
Family Court decision
[20] The Family Court considered substantial evidence, with 12 deponents filing affidavits, and five of those being cross-examined. Mr Wright, the author of two psychological reports ordered under s 133 of the Act, was also questioned on those reports. The other key witnesses were the parents and Ms Fon (a psychologist who undertook a risk assessment of the father).
[21] Mr Barkle had been appointed as counsel for the child at an early stage of the proceedings. He had also appeared and presented submissions at the 2010 and 2012 hearings in the Family Court. He filed memoranda prior to the 2012 hearing setting out A’s position and views. Mr Wright also interviewed A in the course of preparing his report, and made enquiries of her school. Judge Russell also met A and outlined the contents of the interview with her to both parties before the hearing.
[22] Judge Russell recorded that A had remained “remarkably insulated” from what had taken place.7 She did not report any worries or concerns when in the care of either parent. She viewed the current care and contact arrangements as about right, and expressed no desire to see any more of her father than was currently occurring. The Judge then repeated some of the details from Mr Wright’s report, including that A had spoken favourably about both parents to her teacher, and that
when asked about scary people in her life, she did not indicate there were any. The
general tone of A’s comments to Mr Wright was that she did not know why her parents had separated, she enjoyed the care of both parents, and was ambivalent
7 Fredson v Hilson [2013] NZFC 4865 at [31].
about whose care she preferred. She told Mr Wright that she was happy with the current contact and did not wish to spend more time with either parent. Those comments were also made to Mr Barkle and the Judge recorded them as being consistent with his interview with her.
[23] Judge Russell had the benefit of assessing A in an interview, as well as observations of the parties and other witnesses when they were cross-examined. In these circumstances seeing and hearing A, the parties and all other witnesses gave him a distinct advantage in the assessment required under ss 58 to 61 of the Act.
[24] The hearing proceeded on the basis that the father was a “violent party”, despite the then outstanding criminal appeal. Judge Russell considered the starting point was that only supervised contact could occur between the father and A, pursuant to s 60(4), unless the safety assessments in s 61 could be met. He stated:8
If the safety assessments could be satisfied and unsupervised contact could occur, then the framework of an appropriate parenting order needed to be determined, having regard to the provisions of ss 3, 5 and 6 of the Act.
[25] The bulk of the Judge’s reasoning focused on the s 61 safety assessment. He set out his findings under headings corresponding to each of the factors in s 61. The judgment is a thorough and careful one in the context that, however fraught the relationship was between the parties, it was in A’s interests to have as normal a relationship with her father as possible, that both parties had to facilitate that, and that it was in the interests of all involved that a permanent solution be planned to avoid recurring court hearings.
[26] Judge Russell’s assessment of all factors was made on the basis that there were two proven incidents of violence: one of sexual abuse and one of physical abuse. He did not make separate findings on other inappropriate conduct on the part of the father that the mother relied on in this appeal. As to the nature and seriousness of the violence used, the Judge considered the sexual abuse to be very serious,
involving skin-on-skin contact and a “massive” breach of trust. The physical abuse
8 At [28].
was described as being at the lower end of the scale of physical violence, as no injuries were caused.
[27] As to how recently the violence had occurred, the sexual and physical abuse occurred in 2009, so that neither event was recent. The frequency was low, involving only two incidents.
[28] The likelihood of further violence criterion (s 61(d)) took into account Ms Fon’s evidence and her assessment of the father as being at low risk of sexual re-offending. The Judge also took into account Mr Wright’s assessment of the risk of further violence, which was consistent with Ms Fon’s, and Mr Wright’s observation that the risk of offending against biological children was significantly lower than the risk of offending against non-biological children. He also took into account the probation officer’s pre-sentence report, which also assessed the risk of re-offending as low. On the basis of this evidence, the Judge concluded that the risk of sexual offending by the father against A was low.
[29] The Judge recorded the mother’s view that A would not be safe having contact with the father, which reflected the considerations in s 61(f) to (h). As to the physical or emotional harm caused to A, the Judge recorded that no such harm has been caused, and in terms of (i), A was happy with the current arrangements. The Judge also recorded that the father had undertaken counselling with a psychologist for personal rather than violence issues. No other work had been done to prevent further violence occurring, in terms of the factor in (j). The Judge noted Ms Fon’s view that educative work was needed to set proper boundaries between the father and A, and Mr Wright’s view that therapeutic work should be undertaken to address the causes of offending. In terms of other matters considered relevant under (i), the Judge considered that alcohol may have played a part in the offending, and that a condition should attach to any parenting order requiring that alcohol not be consumed prior to and during the father’s contact with A.
[30] The Judge concluded that the risk of further offending was low, and that further educative work should be carried out before formal supervision of contact
ceases. He was satisfied that any risk to A’s safety could be managed by the
structure and conditions of the parenting order.
[31] After satisfying himself that A would be safe, the Judge then turned to the appropriate form of a parenting order and referred to the relevant principles in ss 4 and 5 of the Act. With regard to s 5(e), which reflects the need to keep the child safe from all forms of violence, the Judge repeated that he had assessed the risk of re- offending as being low under s 61, and that the framework of the parenting order would minimise any risk to the child.
[32] The orders allowing the father contact with A were to progress in three stages as follows:
(a) Stage one: The existing requirement for supervised contact was to continue. During this stage, the father was to complete therapy with Ms Fon, to Mr Barkle’s satisfaction, to develop a relapse prevention plan. Both parties were to engage a child counsellor to develop a plan to address how A will be told of her father’s convictions, and the support and assistance which A will receive at that time. The plan will include dealing with a situation where A is told by a third party, prior to the commencement of the plan.
(b)Stage two: Upon Mr Barkle being satisfied that the therapeutic work with Ms Fon and the counsellor had been completed, unsupervised contact was to take place in the school term, each Tuesday and Thursday between 3 pm and 6 pm, and each second Saturday from
10 am to 5 pm; and in the first week of the school holidays on
Tuesdays, Thursdays and Saturdays from 10 am to 5 pm.
(c) Stage three: Would commence when A turns 11, on 1 February 2015.
There would be contact for the same periods as during stage two, but on an unsupervised basis. Contact on each second Saturday was to become an overnight stay, from 10 am on Saturday to 5 pm on Sunday.
[33] Further specific contact hours would apply to Christmas holidays, birthdays and mother’s/father’s day, and special exceptions were provided to the orders to allow flexibility for overseas holidays.
Grounds of appeal
[34] The mother’s appeal focused on the Judge’s assessment of the factors contained in s 61. She submitted that the Judge erred by restricting himself to two incidents of violence when assessing those factors. The mother argued that the following conduct on the part of the father, although not amounting to allegations of violence under s 58, is relevant to the assessment of safety:
(a) inappropriate emotional relationship with his step-daughter, X;
(b)his failure to recognise safe boundaries with A, including sneaking up behind A and kissing her, and playing a game with A where he tried to force hugs and kisses on her;
(c) angry outbursts towards his step-son, Y; and
(d)on-going psychological and threatened physical abuse of the mother, including making a complaint to the body responsible for regulating those practising in her profession about her professional conduct.
[35] The mother argued that these instances show the father’s tendency to act in an inappropriate way towards his children, which should be relevant to the assessment of A’s safety in his care. The mother submitted that the Judge erred by not taking this evidence into account in making an assessment of A’s future safety with her father. The mother submitted that a correct interpretation of s 61 requires that once one allegation of violence is made out, and the parent is classified as a “violent person”, all relevant evidence is to be taken into account in assessing all of the factors in s 61. That would include all the matters referred to at [34] which the mother argued reflected a risk to A’s safety, even although they did not amount to allegations of violence under of s 58.
[36] An additional element of this complaint by the mother was that because the Judge took a narrow view of the matters that would be relevant under his s 61 assessment, he incorrectly curtailed her questioning of witnesses, including the father, on matters that could have elicited more helpful detail on the incidents listed in [34].
The risk assessment under s 61
[37] Section 61 is only engaged if a party meets the definition of a violent party under s 58, that is, the Court is satisfied that an allegation of violence has been made out against that party on the balance of probabilities. Section 61 then provides a list of factors the court should consider in order to satisfy itself that the child will be safe in the care of the violent party. The main dispute in this case is whether the assessment of safety should be made by reference only to the incidents of violence that have been proven on the balance of probabilities, or a wider set of circumstances. If the latter approach applies, does it alter the outcome as reflected in the Judge’s orders?
[38] The scope of s 61 was thoroughly canvassed in Blom v MacKay.9 The mother, as well as counsel for the child, referred to Heath J’s conclusion in that case that “in assessing the question of safety, the Court is entitled to have regard to all relevant factors touching on that issue, whether directly or indirectly related to the actual violence proved to have been taken place”.10
[39] Heath J’s decision examined which components of what is now an assessment under s 61 can legitimately be aided by evidence other than of actual incidents of proven violence. His analysis related to the provisions in the then relevant Guardianship Act 1968, but the lettered paragraphs as he considered them
are materially the same as in the current Act.11 The analysis was as follows:
[56] The factors to which s 16B(5)(a), (b), (c), and (e) refer focus on the specific violence found to have occurred. Yet, s 16B(5)(e), while focusing on violence found to have taken place, allows the Court to
9 Blom v MacKay [2005] 1 NZLR 123 (HC).
10 At [60].
11 The requirement to have regard to any views expressed by the child in (g) is expressed differently, but does require a comparable consideration, at least in the present context.
take account of both physical and emotional harm caused to the child. It would not be necessary to take account of emotional harm unless Parliament intended such harm to be captured within the concept of safety.
[57] The factors to which s 16B(5)(d), (f), (g), (h) and (i) refer are wider in ambit. Section 16(5)(d) refers to “further violence”; s 16B(5)(f) allows the Court to take account of the other parent's view of whether the child will be safe while the violent party has care of the child; s 16B(5)(g) allows the Court to take account of the wishes of the child, having regard to the age and maturity of the child, if the child is able to express wishes and s 16B(5)(h) refers to steps taken by the violent party “to prevent further violence occurring”. The references to “further violence” are not, in express terms, limited to the type of violence found to have taken place in the past. Finally, the Court is given a general power to take account of such other matters as it considers relevant: s 16B(5)(i). That provision must be intended to refer to any factor touching on the safety of the child, while in the care of the violent parent.
[58] … the specific factors that the Court can take into account under s 16B(5)(d), (f), (g) and (h) … plainly go beyond matters relating to “the violence” found to have occurred. They are all matters relevant to a predictive assessment of whether the parent who has been violent in the past is likely to be violent in the future and whether any such violence might put the safety of the child or children at risk. In my view, there is no warrant for restricting the predictive assessment of the safety of the child to violent acts of a type that have occurred in the past.
[59] Such a construction also accords with the interpretation given to s 16B(6) by the Court of Appeal in ER v FR. Parliament could not possibly have intended that the inquiry into a child’s safety should be restricted more in a case where actual violence had been found to have taken place than in a case where the Court was unable to determine, on the basis of the evidence before it, whether or not the allegation of violence was proved.
[60] I am satisfied that, in assessing the question of “safety” of the child for the purposes of s 16B(4) of the Act, the Court is entitled to have regard to all relevant factors touching on that issue, whether directly or indirectly related to the actual violence proved to have taken place or not.
[40] In the present appeal, there is no issue as to the scope of matters to which the Judge had regard in establishing the father’s classification as a violent person for the requisite statutory purposes.
[41] However, the reasoning in Blom v McKay contemplates that conduct or circumstances not related to specific incidents of violence found to be established may be taken into account when assessing the factors at (d), (f), (g), (h) and (i). I
agree with Heath J’s conclusion that all relevant conduct and circumstances should have a bearing on the likelihood of further violence occurring, and the extent of physical or emotional harm done to the child.
[42] This interpretation of Blom v McKay is not inconsistent with Wylie J’s decision in H v C.12 The father argued that in that case, the Court’s assessment of the s 61 factors was limited to proven incidents of physical and sexual violence. There is no specific reasoning to that effect in the decision. The Judge was not satisfied that the relevant allegations of violence had been made out on the balance of probabilities, so that s 61 was not engaged because the father was not classified as a “violent party”.
[43] The reasoning in both cases is consistent with the proposition that one incident of violence needs to be proved to engage ss 58-61 but once that threshold is passed, the Court is not limited to considering only incidents of proven violence when assessing factors (d)-(i).
[44] The terms of the judgment under appeal suggest that the Judge approached his task too narrowly by focussing on the two incidents of proven violence as determinants of future risk. Once the threshold of a “violent person” is met, the mandatory consideration under (d) (the likelihood of further violence occurring), is a case specific review of all considerations relevant to the risk of violence of any type in the future. Whilst proven instances of violence are likely to have primacy in this assessment, other behaviour short of physical and sexual abuse is still relevant, most likely in a second-tier way. The additional conduct relied on by the mother in this case is the kind of consideration that would be relevant to a broader assessment of future risk.
Judge’s assessment of risk of future violence
[45] The Judge’s conclusion on the likelihood of violence recurring was based
largely on the report of Ms Fon. Her view was that the risk of the father offending against his daughter was low, but recommended that he engage in two or three
12 H v C, above n 6.
sessions of focus therapy. As I have noted, the Judge also considered the reports and evidence of Mr Wright, and the pre-sentence report prepared by a Probation Officer. Those sources consistently assessed the risk of re-offending in a criminal context as low.
[46] The Judge did not assess the likelihood of future violence occurring with specific reference to the other conduct referred to by the mother that could potentially impact A’s safety. By restricting himself to the two incidents of proven violence, the Judge appears not to have had regard to evidence which, as a matter of law, can be taken into account in determining future risk. This other evidence can be grouped into three categories:
(a) inappropriate behaviour towards his step-daughter before the indecent assaults occurred;
(b) violence towards the family generally; and
(c) inappropriate behaviour towards A after the indecent assaults occurred.
[47] Mr Wright’s assessment that the risk of the father offending against his daughter was low was made after conducting interviews with all family members and observing A with both parents.13 As to the inappropriate behaviour towards his step-daughter before the indecent assaults, Mr Wright, and perhaps the Family Court Judge, treated this as part of the offending or the events leading up to it. Therefore, the risks that were identified as emanating from the indecent assaults probably
subsumed the risks emanating from the other inappropriate behaviour towards X. The mother characterises this behaviour as “grooming”, but that is possibly an overstatement. Mr Wright refers to the lead up to the indecent assaults in the following terms at [68] of his second report:
It seems to the writer that the incident with [the step-daughter] occurred at a time when both [the mother and the father] had each been under significant periods of stress. During those periods of time, as far as I can ascertain, there was not an emotional closeness between the couple. A possible
13 Mr Wright’s reports were dated 26 August 2010 and 26 February 2013.
progression could have been that [the father] found solace in [the step- daughter] and that an important boundary was breached.
[48] As to the inappropriate behaviour towards A, this occurred while Mr Wright was preparing the August 2010 report, with A’s contact with her father being restricted to supervised visits. Mr Wright observed A in the home of her father during a supervised visit. During this visit he described a number of occasions where the father showed affection for his daughter which she did not resist. There was one occasion where the father came up behind her and kissed her on the back of the neck. On another occasion, the father teased A while she was sitting on his knee
eating a muffin. Mr Wright’s report states:14
[The father] began teasing [A], saying “I’m going to kiss you” and made a game of it. [A] seemed to enjoy the proximity to her father and being on his knee.
[49] Although Mr Wright’s 2010 report was completed before the convictions were first entered, Mr Wright would have taken these incidents into account in predicting any risk or articulating any concerns about unsupervised contact with A. The only concern raised in the reports about this contact was that:15
There is also a strong possibility that he is not fully aware that some of his displays of affection toward children can be misconstrued as being sexualised.
[50] The second report also does not consider this behaviour as concerning in terms of risk, but was concerned that:16
I observed [A] in both settings initiating affectionate contact with each of her parents. In each setting she lay back in a relaxed and open manner. The writer is confident that such postures were innocent and can be taken as an indication of the trust she has for each of her parents. Unfortunately … such open countenance has the potential of being misinterpreted in sexual terms.
[51] Mr Wright also commented on this behaviour when he said, in relation to the indecent assault:17
14 At [173] of first report.
15 At [189] of first report.
16 At [66] of the second report.
17 At 51 of the transcript of evidence.
There’d probably been a protracted period of tension and this came at the end. It’s a very unfortunate incident. The question is, is there likely to be that protracted period of tension in future, I would have thought it unlikely but then, then there’s other aspects which I mention in my first report, which I’ve not actually commented on, and that is, on one occasion when [A]’s at the bench doing some preparation for the muffins. He comes up behind her and kisses her on the back of the neck, and I would have thought for a person who had... been at the very least under suspicion, that you’d be a little careful about your displays of emotion towards the child, and so I kind of – I think that’s a message that hadn’t got through at that point, that one has to be very careful the way one exhibits... affection.
[52] The overall impression is that Mr Wright’s concerns were more about how the father’s behaviour would be perceived, rather than the behaviour itself. Such a concern would likely prompt the recommendation in his second report that:
… it would be unwise for contact to be unsupervised until such time as he has agreed to undertake therapeutic work for himself to ensure that he is safe and has taken steps to ensure that he does not run the risk of attracting future allegations.
[53] It also seems that the concern with the father’s behaviour being one of perception rather than actual risk was shared by the Judge, and this could be a reason for his emphasis on the father undergoing therapy at stage one. At [113] the Judge says:
The father needs to understand and show he does understand the need to keep proper boundaries between himself and [A]...he should be reluctant to initiate affection for fear of it being wrongly interpreted.
[54] His orders at [131](a) state that the father needs to engage Ms Fon for this therapy, and that progression to stage two cannot occur until the work with Ms Fon is completed.
[55] The relevant issue is whether the Judge made an incorrect assessment of the likelihood of future violence under s 61(d), because he did not explicitly refer to the other incidents raised by the mother. It would have demonstrated compliance with the statutory requirements more readily, had the Judge done so. Instead, he cited reports of two psychologists and the Probation Officer’s report for an assessment of future risk. The other incidents of inappropriate behaviour allegedly occurred before the instances of proved violence (the indecent assaults and smacking), or before the reports were prepared. The report writers’ assessments were primarily concerned
with future risk as disclosed by previous offending and current behaviour, observed through interviews and watching interaction between A and her father. It does seem likely that the other instances of allegedly inappropriate behaviour, especially those specifically referred to in Mr Wright’s report, would have been subsumed or considered in conducting the risk assessment for those reports.
[56] The mother submitted that Ms Fon’s report was restricted to the risk of future sexual offending, without considering other risks to A’s safety as disclosed by the additional incidents that she had raised. Ms Fon’s assessment was limited to interviews with the father and his counsel, and she did not see the totality of the evidence, including the mother’s affidavit.
[57] A thorough assessment of future risk in the circumstances of this case would inevitably be dominated by the most serious incidents that were considered in the reports relied on by the Judge. Of the additional matters which the mother argued ought to have been taken into account, and which would arguably have resulted in a different outcome on the determination of future risk, the first related to the father’s inappropriate emotional relationship with the step-daughter against whom he offended. I am satisfied that that concern is adequately reflected in the assessment of the prospect of further offending. Without placing reliance on Mr Wright’s opinion that the risk of offending was materially less against the father’s own biological daughter, than against a step-daughter, this concern is appropriately subsumed within the consequences of the offending.
[58] The father’s failure to recognise safe boundaries with A could mean that he is more likely to pose a risk to her safety than if he was so aware. The opinion of the experts was that the father was capable of learning appropriate boundaries, so an order that depended on his completing such training addresses that concern.
[59] Thirdly, the mother instanced angry outbursts by the father towards his step-son. Arguably, that gives rise to the prospect of a risk of intemperate behaviour. The instances cited did not justify a concern that the father would be unable to control his temper if unsupervised conduct with A was to occur. By the time the appeal was argued, there had been 10,000 hours of supervised contact, without any
significant concerns being reported that the father was unable to control his temper in dealings with A.
[60] The fourth additional matter raised by the mother was the psychological and threatened physical abuse that she claimed to have suffered from the father. It is understandable that a mother would be concerned that psychological or other forms of abuse she suffered were likely also to be visited upon her child. However, by now the context and nature of relationships between the father and the mother are in no way a relevant proxy for the father’s relationship with, and approach to, his own daughter. It seems likely that the father attributes a measure of blame to the mother for the criminal complaints being pursued in relation to his step-daughter, and the mother’s determination to protect A comprises a material component of any dealings between them. Neither of these factors is relevant to the father-daughter relationship.
[61] I am therefore satisfied that an assessment of the future risks to A, if undertaken by supplementing the Judge’s reasoning with a consideration of the other factors raised by the mother on her appeal, would not lead to a materially different determination on the possible existence of such a risk.
[62] The Judge did make specific provision for the inappropriate behaviour, or affection that could be perceived as inappropriate, by directing therapy to be undertaken at stage one with Ms Fon in order to reinforce appropriate boundaries between the father and his daughter. The terms of the staged parenting orders are specifically tailored to address concerns the mother had about these incidents of inappropriate behaviour, as they are directed towards relapse prevention and creating safe and appropriate boundaries. It is therefore not possible for the mother to make out that the Judge failed entirely to take that into account when making the orders.
[63] It is difficult to be definitive about the consequences of the Judge preventing wider cross-examination on the additional incidents the mother seeks to rely on. Having reviewed all of the evidence, I am not persuaded that the absence of additional cross-examination on these topics could have led to a different outcome on the s 61 assessment of the child’s future safety when in the unsupervised care of
the father. On any view, these matters are of secondary importance to the physical and sexual violence that was focused on. The mother’s concern as submitted on her appeal could certainly not warrant referring the whole matter back to the Family Court for re-argument in light of more broadly tested cross-examination.
[64] The mother also submitted that any therapy recommended for the father would be less effective because of his on-going denial of the indecent assaults, and because three and a half years have passed since the indecent assaults on his step- daughter. In responding to this part of the mother’s argument, Mr Daley characterised it as a submission in effect that the Court could not assess the extent of risk of future violence until the father had acknowledged that he was guilty of the indecent assaults, as convicted. The father’s position is that he adamantly will not do that and, despite the convictions and their present relevant effect, Mr Daley responded that it would be wrong for the father to now accept that he had committed those assaults, just in order to get a better result on his care and control application.
[65] There is certainly no justification for holding against the father in the present context his refusal to acknowledge the offending. In other cases where the offending is acknowledged, it is likely to be easier for the Court to assess the steps taken in rehabilitating such a party, and that is likely to improve the quality of assessment that the Court can make of future risk. However, the Court is to take the parties as it finds them, and the father’s stance in this respect is just one factor to be taken into account.
Sections 4 and 5 of the Act
[66] The totality of the parties’ conduct is also relevant to the principle in s 5(e), used to determine whether parenting orders are in the child’s welfare and best interests in a particular case. This principle requires the child's safety to be protected and, in particular, that he or she must be protected from all forms of violence. This prediction of future safety is informed by past behaviour of the parent, and other risk factors, and is broad enough in scope to include behaviour that has not been subject
to a formal finding of proven violence.18 The Judge’s consideration of this principle
18 H v C, above n 12, at [110]
was in the context of his conclusion on s 61, that the risk of future sexual offending was low. That suggests he restricted his assessment for the principle in s 5(e) to the two instances of proven violence that he relied on in his assessments under s 61.
[67] Such an approach unduly restricts the Judge’s assessment on what is in the best interests of the child. As Wylie J stated in H v C, once the inquiry into allegations of violence is complete and no violence is found to be proven, s 5(e) still requires the Court to consider whether there is a risk to the child’s safety. 19 In the converse situation where, as here, status as a violent party has been made out, it is likely that an assessment under s 60(4) as required by the criteria in s 61 will most usually encompass all considerations that are relevant to any risk to the child’s safety. Nonetheless, completing a proper assessment for the purposes of ss 60 and
61 does not obviate the need for the Court to have regard to the s 5(e) considerations. Although unlikely, there may be circumstances giving rise to a legitimate concern as to the child’s future safety that do not arise in considering all of the factors specified in s 61.
[68] As the paramount consideration is the welfare and best interests of the child, and the child’s safety from future violence is vital to his or her welfare and best interests, the assessment under ss 4 and 5 requires a broad assessment of all circumstances that might affect a child’s future safety in the care of one of the parties, irrespective of whether there has been an incident of proven violence. It follows that the judgment in this case was too confined in its consideration of s 5(e), because the Judge relied only on his conclusion on s 61 (which was itself too confined), without any analysis of other conduct on the part of the father that might indicate a risk to A’s future safety in his care.
[69] However, in the Judge’s conclusion on s 5(e), he did state that the parenting orders he made adequately addressed the remaining risks that were of concern to the mother, and he was satisfied the conditions of those orders would adequately protect
the child’s safety.
19 At [110].
[70] Given the overlap between the safety assessment conducted for the purposes of s 60(4), and that required for s 5(e), I do not consider that the additional evidence of inappropriate behaviour takes on a different dimension when assessed under s 5(e). There can be no absolute determination of future risk to A’s safety when in her father’s care, because there is no way any specialist or court can predict future behaviour accurately.
[71] However, in addressing the principles in s 5, there is scope to tailor the parenting orders to meet the welfare and best interests of the child. With the child’s welfare being the overarching consideration, the Judge ordered staged care and mandatory therapy to reduce the risk of violence that was potentially posed by the father. Unsupervised care and overnight visits cannot occur until those measures are completed. Although he did not explicitly say so, it seems the Judge took into account the mother’s concerns over the totality of the father’s conduct and not just the instances of proven violence when making those orders, given the nature of the therapy and the concerns it is designed to address, such as the need for the father to recognise appropriate boundaries. The Judge made the parenting orders entirely cognisant of the totality of the father’s behaviour, including concerns that he was not respecting safe boundaries with A.
[72] The only area where any material risk remains is at stage three. It was accepted at the hearing that this stage will not come into effect until after A turns 11 on 1 February 2015, as any earlier move to stage three would not give the father and A time to adjust to unsupervised contact before overnight stays commence. Overnight stays present a measurably greater risk to A’s safety than unsupervised contact during the daytime. The Judge did not explicitly address this concern. There are no provisions for any work to take place during stage two in terms of further bolstering the father’s ability to prevent any issues arising that would reduce the additional risks inherent in overnight stays.
[73] This concern was realistically acknowledged by the father prior to the appeal being heard. I agree with counsel that it is appropriate that overnight stays should be supervised by a person approved by the Court. This was agreed by Ms Fon and the father prior to the Court hearing.
[74] Accordingly, without opposition, the terms of the orders made in the Family Court in relation to stage three are to be amended to provide that when A is in the care of her father for overnight stays, that contact is to be supervised from 6 pm to
7 am the following morning by persons approved by Mr Barkle. This condition is to apply for the first 18 months of the order under stage three.
Holiday periods
[75] The mother appealed from the component of the orders addressing her entitlement to take A out of New Zealand on overseas trips. The detailed provisions required the mother to give at least 21 days’ notice in writing of her intention to take A travelling, specifying the destination, departure and arrival times, general itinerary and contact details. There was to be only one overseas trip for A in each calendar year. Such trips were to be no longer than 14 days if it was during the school term holidays, or three weeks if it was during the Christmas holidays, and then to commence after Christmas Day. A was to be back in Nelson at least 48 hours prior to school re-commencing for the next term.
[76] The arrangements between the parties are intended to work so that “make up” contact occurs for all the periods that A would have been with her father, but for her absence overseas.
[77] The mother’s written submissions criticised this aspect of the Judge’s order as failing to have proper regard to the practicalities when she would be confined to taking A overseas for a maximum of two weeks and only within school holidays. Instead, the submissions sought a more liberal order permitting one holiday per year of up to 28 days, at times of the mother’s choosing but subject to consultation with the father as to times that would “best fit with educational, work and financial commitments of the [mother], the child and the mother’s other children”.
[78] The parties remained at odds as to whether the mother had fully complied with the arrangements to provide “make up” contact between the father and A in relation to previous holidays. The mother was adamant that all such time had been afforded to the father, whereas the father disputed that. A component of the father’s opposition to this aspect of the appeal was a concern that any greater liberty given to
the mother might (from his perspective) afford larger opportunities for the mother to fail to respect his position in terms of “catch up” time. In addition, Mr Daley argued that an order as to absences from New Zealand that depended on unilateral decisions by the mother did not sit well with the fraught communications between the parents. Those difficulties were one influence on the terms of detailed orders the Family Court Judge made, and there was no justification for removing them. In addition, the father took the position that one trip for either two weeks during school term holidays, or three weeks over the Christmas holiday period, ought to be adequate, and reflected a balancing of the respective parties’ interests that was clearly open to the Judge. In those circumstances, there was no justification to vary it.
[79] In her oral argument, the mother reduced her aspirations in respect of this aspect of the orders. She indicated that she would be grateful for any liberalisation of it, for instance permitting a holiday of up to four weeks’ absence from New Zealand once every two years.
[80] A feature of these proceedings is the seemly intractable difficulties the mother and father have in communicating over matters relevant to A’s care and control. The Judge recognised that, and provided a high level of detail in a constructive way to minimise the potential causes of aggravation between the parties.
[81] It is tempting to cite limited examples of some thawing of the difficult relationship between the parties since the Family Court hearing as a ground for varying this aspect of the orders. If confronted with the mother’s proposition in all the circumstances as I understand them on a de novo basis at the time of the appeal, I might well have been persuaded that a longer absence from New Zealand for A with the mother, say once every two years for up to four weeks, was reasonable if its timing and related arrangements for the father’s “catch up” time were agreed with him. Hopefully, if there is a material improvement in the dealings between the parties in relation to A’s care and control, that is a relaxation of the present orders that might eventually be agreed to.
[82] However, that is not the test on appeal. In this respect, the respondent opposed and required the appellant to make out a relevant error.20 I can find none. That aspect of the appeal must therefore be dismissed.
Costs
[83] The mother has succeeded to the extent of making out an error of law in the approach adopted by the Judge. She has also made out a case for a material change to the terms of the father’s care and control under stage three of the orders made by the Family Court Judge. It is material to that aspect of the appeal that the change sought was not in fact opposed on behalf of the father, and was endorsed by counsel for A.
[84] In terms of the balance of the substantive outcome, the father has succeeded in having the terms of the orders upheld.
[85] In these circumstances, it is not appropriate to make any order as to costs.
Dobson J
Solicitors:
Harmans, Christchurch for respondent
Counsel:
G P Barkle, Nelson, lawyer for child
Copy to: Appellant
20 May v May [1982] 1 NZFLR 165 (CA).
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