X v Y

[2015] NZHC 1320

NOTE: PURSUANT TO S 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 JUSTICE/ABOUT-US/ABOUT-THE-FAMILY- COURT/LEGISLATION/RESTRICTION-ON-PUBLISHING-JUDGMENTS

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-000036 [2015] NZHC 1320

UNDER	the Care of Children Act 2004
BETWEEN	X Appellant
AND	Y Respondent

Hearing:	9 June 2015
Appearances:	C Y Simes for Appellant M Anderson-Ulu for Respondent N M Walker for Children
Judgment:	11 June 2015

JUDGMENT OF COURTNEY J

X v Y [2015] NZHC 1320 [11 June 2015]

Introduction

[1]      Ms X and Mr Y are the parents of three children, twin girls aged 16, and a boy aged 14.   After the parents separated in 2008 the children remained in their father’s day-to-day care in Auckland and in 2011 moved to live with their mother in another city.  Contact between Ms X and Mr Y has been poor.  Each has levelled accusations at the other and the children became enmeshed in the adults’ issues.  In addition, there have been concerns expressed about Ms X’s mental health and, consequently, the safety of the children.

[2]      On 17 December 2014 Judge de Jong made two orders that are the subject of the current appeal.  The first was an order under r 46R of the Care of Children Act

2004 (CoCA) directing that the children not live outside Auckland unless otherwise ordered by the Family Court or by agreement in writing between the parties (the guardianship order).   This guardianship order was not to expire until the children turned 18.  Ms X has appeals1  this order on the grounds that it was made without either party or lawyer for the children seeking such an order and therefore without any jurisdictional basis  and, further, she was not given a proper opportunity to respond to the proposed making of the order.

[3]      The second order was a parenting order under which the Mr Y was to have day-to-day care of the children and Ms X very limited supervised contact. Ms X appeals that order on the basis that the Judge either failed to consider or misinterpreted the effect of s 50 on the parenting order, with the result that, although the order in relation to day-day contact has now expired in relation to the girls, who are 16, it will continue to control contact between the children and their mother until the children are 18.

[4]      During  the  course  of  the  appeal  hearing  it  became  evident  that  the guardianship order had been made without any jurisdictional basis, without Ms X being given an adequate opportunity to be heard and very likely (judging from the transcript of the hearing) contrary to what the Judge himself intended.  It was also

clear that the effect of the contact order either was or was arguably to control contact

1      Ms X sought and was granted leave to bring the appeal without objection from Mr Y.

between the children and Ms X until they turn 18 and it is doubtful that the circumstances justified that level of control.

[5]      The  parties  and  lawyer  for  the  children  took  the  responsible  step  of conferring on how the issues facing them could be addressed.  They proposed a set of orders which I considered appropriate.  I intend to make the orders that the parties suggested by consent and, as a result, it is unnecessary to analyse the grounds of appeal in any detail.  However, since the matter is to be remitted to the Family Court I briefly record the essence of the arguments and my views of them.

Background

[6]      The  hearing  at  which  these  orders  were  made  was  the  culmination  of litigation over the day-to-day care and contact arrangements for the children dating back to 2009.  In November 2011, however, the Family Court made a final parenting order by consent under which the children were to be in Mr Y’s care during 2011 and in Ms X’s care during 2012. There was no provision made beyond 2012.

[7]       On 29 November 2012 Mr Y applied to vary the parenting order and to prevent the children being removed from the city in which they lived with Ms X. The Court made an order that the children not be removed from that city.   The parenting order application was put on 48 hours notice.

[8]      From then on there were several unfortunate turns of event that put Ms X at a significant disadvantage.  I note here that Ms X lives on a benefit, appears to have few resources and at the relevant time was not in receipt of legal aid.  Ms X’s then lawyer filed a notice of opposition but failed to file and serve the affidavit that Ms X had sworn.  As a result, Ms X wrongly assumed that Mr Y and the Family Court were aware of her position and they assumed that she was taking no steps or being evasive.

[9]      An interim parenting order was made by consent on 20 December 2012 under which the children were to remain in Ms X’s care but could brought to Auckland for the purposes of contact with Mr Y.  On 28 January 2013 Mr Y applied without notice

to enforce the interim parenting order by issuing a warrant.2  At a hearing on 10 June

2013 the application for a warrant was declined but the Court made an order for payment of a bond by Ms X, directing that it lie in court for 28 days for use if contact did not proceed in accordance with the order.  The Registry, in error, issued the order immediately causing unnecessary stress to Ms X.

[10]     Contact in July 2013 did not proceed because Mr Y came to pick the children up and found that Ms X had moved house; she had told her lawyer but he had failed to pass on the information.

[11]     In August 2013 the Family Court directed that a s 133 report be obtained. The report was unfavourable to Ms X.  In particular, it contained some very strong comments which, had they been justified, could have been expected to have been immediately brought to the attention of the Family Court rather than simply recorded in the report.   But because Ms X’s lawyer was located in Auckland she had very limited opportunity to consider the report and was unprepared at the time of the substantive hearing in November 2014.   In comparison Mr Y was provided with a copy of the report because he was unrepresented and was very familiar with it.

[12]     The hearing on 25–27 November 2014 was adjourned because Ms X was unwell; she had a genuine illness and produced a medical certificate.  Ms X did not appear for cross-examination at the adjourned date on 17 December 2014.

[13]     It is apparent from Judge de Jong’s decision that he formed an adverse view of Ms X.  He considered that there were serious risks for the children remaining in their mother’s care.   This conclusion was largely based on the evidence of the psychologist. The Judge concluded that:

[49]     However, this Court is so concerned about the children’s future wellbeing that it intends to impose condition on parental guardianship rights which prevent the children living outside the greater Auckland area.   An order of this kind is made in terms of ss 15, 16 and 46R.  That means this part of the order does not expire until the children turn 18.

2      He also applied on notice for directions regarding a dispute between guardians over changes to the children’s names on their birth certificate.  This application was resolved by consent and is not relevant to the parenting issues.

[14]     The  Judge  noted  in  a  footnote  that  the  jurisdiction  for  making  the guardianship order was based on the father’s application to determine where the children should live.

The orders under challenge

[15]     Section 46R relevantly provides that:

(1)       If two or more guardians of the child are unable to agree on a matter concerning  the  exercise  of  their  guardianship,  any  of  them  may apply to the Court for its direction.

…

(4)       On an application under subsection (1) the court may make any order relating to the matter that it thinks proper.

[16]     There is no provision under s 46R for an order to be made on the Court’s own motion.  No such application was made; Mr Y’s application for a parenting order for day-to-day care was not an application for directions under s 46R, as the Judge seems to suggest.

[17]     No mention was made of the personal jurisdiction that exists under s 126 but I do not consider that that could have conferred jurisdiction to make the order of this kind on the Court’s own motion and nor do I consider that it would have provided jurisdiction.  Section 126 provides that:

(1)       The Court has jurisdiction under this Act in any of the following cases:

(a)       If the question of guardianship of a child or of the role of providing day-to-day care for a child or of contact with a child  arises  as  an  ancillary  matter  in  any proceedings  in which the Court has jurisdiction …

[18]     The application before the Court was simply a parenting order application. No question of guardianship of the children arose as an ancillary matter.   Neither party  had  raised  the  suggestion  that  the  Court  could  or  should  make  an  order requiring the children to live in Auckland until they were 18.   Significantly, the transcript records comments by the Judge himself which indicated an acceptance that

the children had expressed a desire to and would be entitled to move back to live with their mother when they turned 16.

[19]     As regards the contact order, the difficulty arises because under s 50(2) a parenting order made in respect of a child under the age of 16 must expire when the child  turns  16  unless  the  Court  “in  special  circumstances”  orders  otherwise. However, no such provision is made in relation to orders for contact; the section is silent as to such orders. As a result, those orders fall, by default, to be determined by reference to the definition of “child” in s 8 of CoCA which is “a person under the age of 18 years” unless the context otherwise requires.  This apparent inconsistency has been considered on relatively few occasions, with the Family Court generally taking the view that there must be special circumstances in order to justify retaining contact orders beyond the age of 16.   Because of the way in which this case has resolved itself it is unnecessary for me to consider the question.  It is, however, one that would benefit from review in an appropriate case.

Resolution

[20]     Ms Anderson-Ulu,  for  Mr  Y,  responsibly  conceded  that  there  were  real difficulties with both the guardianship order and the contact order and indicated Mr Y’s willingness to consider a broader approach to the resolution of the issues between him and Ms X.  One of these was Ms X’s willingness to address her mental health issues.  Ms X has recently consulted a psychiatrist, which Mr Y regarded as a positive step.

[21]     Lawyer for the children,  Ms Walker,  provided an  updated report  for the purposes of the appeal.   This made it clear that the girls continue to think about moving to live with their mother.

[22]     I gave the parties and lawyer for the children the opportunity to confer, taking into account that:

(a)       It was evident that the guardianship order had been made without jurisdiction;

(b)There was no or no adequate basis on which to have made a contact order   that   continued   to   have   effect   after   the   expiry   of   the corresponding parenting order;

(c)       There have been and still are, concerns about Ms X’s mental health.

(d)The girls are mature and sensible and capable of forming a rational view of where they should live and the nature and extent of contact they should have with the various members of their family.   They have expressed to the lawyer for the children a general wish to return to the city where their mother resides (subject to the concern they hold about leaving their younger brother in Auckland);

(e)      Although  Mr  Y  is  trying  to  find  alternative  accommodation,  the children’s current living arrangements are unsatisfactory.   They are living with Mr Y, his partner, her two teenage children and a cousin. The  accommodation  is  located  above  a  gymnasium.     The  five teenagers (three girls and two boys) are all sleeping in the lounge. There is limited space and opportunity for the girls to study for their NCEA level 2 exams;

[23]     Taking all of these factors into account the parties made a proposal that I

consider appropriate.  I make the following orders by consent:

(a)      The matter is to be remitted to the Family Court for any ongoing supervision that proves necessary.   Pending remission to the Family Court the following orders apply;

(b)By 26 June 2015 Ms X will provide a psychiatric assessment to all counsel,  including  lawyer  for  the  children.    The  report  may  be abridged so that it does not contain personal background information. It should, however,  address the psychiatrist’s conclusion regarding diagnosis, risks, treatment and whether medication is necessary;

(c)      If Ms X provides the psychiatric report by 5 pm, 26 June 2015 the contact order and guardianship order in respect of the girls are to be discharged by consent on 3 July 2015;

(d)      If  the  psychiatric  report  is  not  provided  by 5  pm,  26  June  2015

Ms Walker is to report to other counsel and the Family Court on the accommodation of the three children.   If she reports that the accommodation arrangements provided by Mr Y are suitable for the girls there will be a parenting order in Mr Y’s favour for six months from 3 July 2015, with a date for review by the Family Court to be obtained within that time;

(e)      If no psychiatric report is provided by 5 pm, 26 June 2015 and Ms Walker reports that the accommodation provided for the girls is not adequate the matter is to be referred to the Family Court as a matter of urgency;

(f)       There is to be an order under s 46G for 12 hours of counselling for

Ms X and Mr Y to be conducted over three days (this to allow for the fact that Ms X has to travel a distance to Auckland).

P Courtney J