XL v RH
[2020] NZHC 3498
•22 December 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,
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THE NAMES OF THE PARTIES AND THE CHILDREN ARE SUPPRESSED.
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE
CIV-2020-470-000109
[2020] NZHC 3498
UNDER THE Care of Children Act 2004 IN THE MATTER OF
An appeal from a decision of the Family Court at Tauranga on 4 November 2020
BETWEEN
XL
Appellant
AND
RH
Respondent
Hearing: 14 December 2020 Appearances:
Ewan Eggleston for the Appellant
Rebecca Savage and Laura McLoughlin-Ware for the Respondent Penni Eagle as Lawyer for the Children
Judgment:
22 December 2020
JUDGMENT OF MOORE J
This judgment was delivered by me on 22 December 2020 at 10:30 am pursuant to Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar Date:
XL v RH [2020] NZHC 3498 [22 December 2020]
Introduction
[1] XL appeals a parenting order made by Judge C Montague in the Family Court on 4 November 2020.1 She ordered that JH (aged seven) and KH (aged four) be in the day-to-day care of their father, RH, with supervised contact with their mother, XL. This order was made despite the parties applying by consent for orders providing for shared care.
Procedural history
[2] XL and RH separated in December 2017. On 13 August 2018 a final parenting order was made which provided for the children to be in the shared care of their parents. XL had JH and KH from Wednesday night until Sunday; RH had them from Sunday night until Wednesday.
[3] In late March 2020, Oranga Tamariki (“OT”) became involved after a notification that JH had a black eye, received whilst she was in XL’s care. This followed a similar report to OT in February 2020. During the subsequent investigation, the children remained in RH’s care.
[4] XL sought to enforce the Parenting Order by issuing an on-notice application on 1 May 2020. This was defended by RH, who sought a variation of the parenting order requiring XL to have supervised contact with the children. The matter was set down for a two-day hearing and a further family group conference was convened in the interim. Following a roundtable meeting an agreement was reached to return to a shared care arrangement but amend the rotation of care so that it was week about.
[5] OT emailed the lawyer for the children and specifically recorded that they did not agree XL should have unsupervised or shared care. They advised that had closed their file and would leave matters to the Family Court.
[6] The parents asked that their agreement be endorsed by the Court. It was referred to a submissions-only hearing. A submissions-only hearing means that the
1 XL v RH [2020] NZFC 9695.
matter is decided on the basis of submissions by the parties; no witnesses are called, nor is there cross-examination.2
[7] On 4 November 2020, the submissions-only hearing came before Judge Montague.
Summary of evidence
[8] OT carried out two child-focussed interviews and one evidential interview with JH. It found that XL had physically abused JH, and that both parents were emotionally abusing the children. OT decided that XL should not be given unsupervised contact with the children.
Family Court judgment
[9]Judge Montague set out the factual background. I summarise it below.
[10] On 1 May 2020, XL filed an application for a warrant to enforce the parenting order. XL, RH and the children’s lawyer, asked the Court to endorse the shared care arrangement they put forward by consent. They had agreed to revert to shared care. The children had recommenced unsupervised contact with their mother. The children’s lawyer submitted that the children, especially JH, wanted such an arrangement. It would reduce ongoing conflict between the parties and would restore the status quo. It would provide the children with continuity and allow the parents to be reasonably equally involved in their primary care and development.
[11] However, after considering the material before her, Judge Montague took a different view. Emphasising that her paramount consideration was the best interests of the children,3 she especially observed that s 5(a) of the Care of Children Act 2004 (“COCA”) provides a child’s safety must be protected. The Judge considered she had the jurisdiction to make findings on what would most limit the children’s risk of violence. To determine whether an order for supervised contact should be made, the
2 Family Court Rules 2002, s 416ZG.
3 Care of Children Act 2004, s 5; Kacem v Bashir [2010] NZCA 96, [2010] NZFLR 865.
Judge proceeded to assess the violence that had been proved and consider the likelihood of it being repeated against the subject child.4
[12] On the evidence she noted JH had disclosed to members of her family, her lawyer and in an evidential video, that her mother had hit her. RH’s counsel told the Court that despite agreeing to the arrangement, he still harboured serious concerns for the children in their mother’s care.
[13] As a result of information she was privy to but unable to give in evidence, the children’s lawyer submitted that there may be wider concerns for the children’s safety in their mother’s care. The children’s lawyer stated there had been concerns raised by the neighbours, JH’s teacher, and social worker. The children’s lawyer described JH as a very honest, open, clear communicator and submitted that she was unequivocal that her mother had hit her.
[14] OT also took the position that XL had not taken sufficient steps to ensure the children’s safety. They had recommended a parental assessment which XL declined to participate in due to cost, although it was noted that XL had paid for a private paediatrician in Auckland to provide evidence.
[15]The Judge said:
“[22] Turning to the evidence before me it is simply the case that there is too much conflict and dispute within the evidence itself that has not been able to be tested for me to find that the children are safe on the balance of probabilities in their mother’s care.”
[16] As noted, neither parent nor social worker gave evidence. Nevertheless, the Judge was “left with the overwhelming impression that there were wider concerns for these children in the mother’s unsupervised care”.
[17]The Judge thus made the following orders:
(a)the parenting order dated 13 August 2018 was discharged;
4 Following Lowe v Way [2015] NZHC 2377.
(b)in its place a parenting order was made providing for the children to be in the day-to-day care of their father with supervised contact reserved to their mother at KidzCare and s 60 funding made available for that purpose; and
(c)directing that s 46G counselling shall occur.
[18] The Judge also noted that XL had taken some steps to address the concerns. She had attended a parenting course and a Living Without Violence course. The Judge, however, noted it was early days, but proposed that if there were more significant interventions, an application could be filed by XL.
[19] The Judge observed that as the parties were already implementing a shared care arrangement, they were able to apply to discontinue the proceedings. She noted her concern if should that occur because the orders she had made were required for the children’s safety.
Submissions
XL
[20] Mr Eggleston, for XL, says that the Judge’s orders should be set aside, and either a new interim parenting order be made, or the case be remitted back to the Family Court for a new hearing on the evidence.
[21]The appeal is based on three grounds:
(a)procedural unfairness;
(b)the Judge’s factual findings were incorrect; and
(c)the Judge should have directed a full hearing.
[22] As for the claim there was procedural unfairness, Mr Eggleston, observes that Judge Cook referred the matter for a submissions-only hearing. This was because the ambit of the hearing would be limited to endorsing parenting orders which reflected
the care arrangements the parents had already undertaken informally. Judge Cook’s orders followed Judge Geaghan’s Minute which framed the two issues as first, whether either of the children had suffered a non-accidental injury at the hands of XL and secondly, if so, what was the nature and circumstance. Judge Cook’s Minute narrowed the procedural ambit considerably, Mr Eggleston submits. As a consequence, all parties approached the hearing on that much narrower basis. Judge Montague gave no indication of her thinking in the course of the hearing, even after standing it down for 15 minutes. No indication was ever given that the orders all parties were expecting would be made, would be departed from. Had such an indication been given, it is submitted that XL would have requested a full hearing with evidence. Alternatively, Mr Eggleston submits that once the Judge had decided that she would not endorse the parents’ arrangement she was under a duty of fairness to advise the parties and give them an opportunity to make further submissions and/or consider their respective positions.
[23] Secondly, as for the claim the Judge erred in fact, Mr Eggleston submits JH was not overly questioned; that she had not disclosed any violence in her two OT interviews. The purported disclosures by JH in the 25 May 2020 evidential interview were unreliable and her evidence contradicted the paediatrician’s expert testimony. Against that factual background it was wrong and unfair for the Judge to find as a fact that the violence had occurred as alleged. Mr Eggleston also disputes that the necessary level of certainty required to determine that violence had in fact occurred was not met. Mr Eggleston disputes each of the factual findings and/or assessments made by the Judge.
[24] Thirdly, he submits that if the Judge considered there was too much evidential conflict to make the necessary factual findings on the papers, she should have directed a hearing on the evidence under s 416ZG(3) of the Family Court Rules 2002.
RH
[25] Ms McCoughlin-Ware, for RH, indicates her client is willing to make certain changes to the care arrangements once XL has completed the interventions.
Alternately, RH consents to the appeal being granted and the matter being remitted back to the Family Court for a full hearing on the question of safety for the children.
[26] RH has communicated his agreement for increased contact in the following respects:
(a)Kidzcare contact as directed by the Family Court, including additional Kidzcare time that XL is able to organise;
(b)Facetime calls on most days with XL speaking to each child for 10 minutes;
(c)supervised contact each weekend for one hour at a park or similar venue; and
(d)this Court making orders for additional unsupervised contact.
[27] As to the grounds of appeal, Ms McCoughlin-Ware says that XL was on notice as to the potential impact of the Court’s decision and that the Court would only make the orders sought if it was satisfied of the children’s safety. Both parties requested a submissions-only hearing, aware that it would mean the evidence would not be tested.
[28] Ms McCoughlin-Ware also submits that the Judge was not wrong to find there was an unacceptable risk of violence if the children were in XL’s care and decline to grant the orders sought. The Judge did not consider it necessary in the circumstances to make express positive findings about the allegations of violence. Ms McCoughlin- Ware disputes that the disclosures made by JH should not be given weight.
[29] As to the third ground of appeal, Ms McCoughlin-Ware submits that the Judge was not required to direct a full safety hearing, as the matter in dispute, that is whether the orders sought by consent should be granted, was determined, albeit not in a way that favoured XL.
[30] Finally, Ms McCoughlin-Ware emphasises that RH is supportive of XL spending time with the children, so long as it is safe.
Lawyer for the children
[31] Regarding question of the procedural unfairness, Ms Eagle for the children, notes that all parties requested a submissions-only hearing. Regardless of the type of the hearing, the Judge was required to adjudicate matters as best she could. She observes that counsel were well aware that they needed to address any safety issues and argue their respective positions on JH’s alleged injuries. Ms Eagle made submissions as to safety issues. She says that the matters discussed at the hearing could not have come as a surprise to any counsel. It is not relevant whether the final orders actually made were contemplated. Ms Eagle notes that the position adopted by XL’s counsel reflects a certain complacency as to the Court’s adjudicatory powers.
[32] On the question of whether the Judge correctly determined that physical abuse had occurred, Ms Eagle submits that the actual finding the Court made was that she could not be certain the physical abuse had not occurred. The Judge then assessed the likelihood of violence occurring if the children were in the unsupervised care of their mother. Ms Eagle suggests the Judge was cautious given the context of what she was required to do; a balancing exercise to ascertain whether the children were safe in the care of their mother where the evidence had not been tested
[33] Despite this, Ms Eagle submits that the order made by the Judge was flawed. It did not consider the other relevant provisions of COCA such as whether extra contact should be granted on certain occasions, or alternate supervisors. It follows, she submits, that the existing situation is not in the best interests of the children. Ms Eagle submits the Court should have set the matter down for full hearing to determine the evidence and consider the other relevant factors under s 5 of the Care of Children Act 2004.
Approach on appeal
[34] An appeal to the High Court is made under s 143 of the Care of Children Act 2004. The appeal is by way of rehearing. This Court is required to reach its own view of the merits of the case based on the evidence given in the Family Court.5 The
5 Austin, Nicholls & Co Inc v Stitching Lodestar [2007] NZSC 103, [2008] 2 NZLR 141. PRNZ 768
appellant bears the onus of satisfying this court that it should differ from the decision of the Family Court. Only if I consider the Judge’s decision is wrong would I be justified in interfering with it.
[35] After hearing an appeal, the High Court may make any decision it thinks should have been made by the Family Court. These include directing a rehearing in the Family Court, directing the Family Court to consider or determine any matter, directing the Family Court to enter any judgment, or to make any order the Court thinks fit, including as to costs.6
[36] This appeal must be decided according to s 4 of COCA, which states that the children’s welfare and best interest are to be paramount.
Issues
[37] All parties in their submissions agree that a full safety hearing is necessary. I agree. However, the best approach on this appeal is to determine whether there was procedural unfairness; determine whether there should have been a full hearing and make no conclusions as to the factual findings of the Judge, because that is best left for any full hearing at which time evidence will be led and tested.
Procedural unfairness
[38] XL submits that the Judge did not have the full evidence before her and says that because of this she could not properly answer the concerns about the allegations of violence. Thus the proceeding was procedurally unfair.
[39] Section 27 of the New Zealand Bill of Rights Act 1990 provides that every person has the right to the observance of the principles of natural justice
[40] In L v A the Family Court Judge declined to make a variation to parenting orders and removed a provision from the parenting order that was not a subject of the application.7 On appeal, Dunningham J held that the Court had the discretion under
6 High Court Rules 2016, r 20.19.
7 L v A [2015] NZHC 2889.
s 48 to make the order, but the real issue was whether, as a matter of procedural fairness and natural justice, it was appropriate to remove this condition, when that was not sought or contemplated by either party at the hearing. She found that the mother was clearly taken by surprise and that the change was not sufficiently related to the subject matter of the application to be anticipated as a possible outcome. Dunningham J held that:8
“It is an integral aspect of a fair hearing that the matters at issue are clearly identified so each party has an opportunity to adduce evidence and make submissions on those issues as they affect them. As was said in Furnell v Whangarei High Schools Board, natural justice requires that an affected party “be given an outline of the case against him … [so that he has] … a fair opportunity of correcting or contradicting it”.
The corollary of that is that issues not raised directly, or by implication, in the application, should not be adjudicated on as to do so “would stand the principles of pleading on their head”. While I accept this principle need not be rigidly applied in the family law jurisdiction, where it may be difficult to compartmentalise issues, caution must still be exercised before making orders which were not clearly within the scope of the application before it.”
[41] It is also relevant that under s 139A of COCA, leave is required to commence substantially similar proceedings relating to parenting orders.
[42] Here, the order made by the Judge was not sought by either party. However, under s 48 of the Care of Children Act 2004, the Family Court may make a parenting order subject to any terms or conditions the Court considers appropriate. It seems that the parties approached the hearing assuming the Judge would simply endorse their agreed position by making the orders. That approach may well be appropriate where the orders relate to uncontentious procedural matters such as agreed timetabling. However, as I pointed out to counsel, Judges are required to act judicially and in accordance with legal principle. Judges cannot be expected to rubber stamp agreements between the parties particularly where, as in this case, there are supervening statutory considerations which the Court is required by law to take into account.
[43] Here the Judge was mandated to consider the principles set out in COCA, particularly ss 4 and 5. Counsel must have been aware of the possibility the Judge
8 At [67]—[68] (footnotes omitted).
would make an order adverse to XL. The primary issue identified in both pre-hearing Minutes was clearly the allegations of violence. That is plainly apparent on the face of Judge Cook’s Minute when he recorded he was setting the matter down for one- and-a-half hour submissions-only hearing to determine whether the care arrangements between the parties should be endorsed by way of making final orders. If the parties sincerely believed the result was a fait accompli it begs the question, amongst others, as to why one-and-a-half hours would be required. XL’s counsel prepared submissions designed to persuade the Judge that the abuse as claimed did not occur. Oral submissions to the same effect were made. That was the very issue both Judge Geaghan and Judge Cook contemplated would be litigated.
[44] I also note Ms Eagle’s advice that at the outset of the hearing the Judge asked the parties to confirm they agreed and understood she must make findings on the matters in the pleadings, including allegations as to safety. Counsel confirmed their agreement and understanding of the position.
[45] I do not consider that this was a case where a decision adverse to XL was made without her being properly on notice of it or able to respond to it in the hearing. It follows this ground of appeal must fail.
Second ground of appeal: factual conclusions drawn by the Judge
[46] The Judge concluded that she could not be sure XL was not violent to JH; she was “left with the overwhelming impression that there are wider concerns for these children in their mother’s unsupervised care”. Expressed in that way, this is a very different finding from a positive determination that XL had physically abused the children. The order was made on that basis. On the evidence before her it was plainly open to make such a finding.
[47]It follows I am not persuaded that the Judge erred in fact.
[48]Factors relevant to that conclusion are:
(a)RH told the Judge he had concerns about his children in XL’s care;
(b)OT’s view that XL had been violent to JH;
(c)evidence from JH, her teacher, her social worker and neighbours; and
(d)the paediatrician’s opinion was based on photographs when JH allegedly had a black eye. There was no assessment of the bruising itself. As such it should be given limited weight.
[49]For these reasons this ground, too, fails.
Third appeal ground: should the Court have referred the matter to a full hearing?
[50] Referring a matter back for a full hearing will, inevitably, result in further delays, potentially lengthy. Despite this, I am satisfied that the Judge should have ordered a full safety hearing in order to conclusively determine the allegations of violence and to consider the appropriate orders for future contact or care.
[51] There is force in Ms Eagle’s submission that the limits implicit in the submissions-only procedure fettered the Judge in terms of her options. In the absence of evidence, led by cross-examination, her determinations were necessarily constrained. Furthermore, as Ms Eagle submits, s 5(a) is not the only relevant provision, although it is plainly highly relevant in the present circumstances. Section 5(b), (c) and (e), which apply to the role and involvement of parents are relevant as is s 5(f) which relates to the preservation and strengthening of a child’s identity, culture and language. Section 6, which relates to a child’s views, is similarly significant. None of these issues was addressed by the Judge, presumably because there was no evidential foundation for a reasoned consideration.
[52] It follows that I am satisfied that the present orders should not be sustained. All parties agree with that course, albeit not as to the particular orders. The fact of the matter is that there is an evidential basis for concern as to the children’s safety in the
unsupervised care of XL. But there is also a need for greater contact with XL as Ms Eagle emphasised. This means that any increased contact must be supervised. The interim orders set out below are intended to reflect those imperatives bearing in mind the paramountcy of the interests of the children mandated in COCA.
[53] Furthermore, ordering a rehearing would be in the best interests of the children. The Judge herself referred to shortcomings in the evidence and limits to the information she was provided with. The evidence of RH, XL and supporting witnesses such as the teacher and social worker, can be properly tested. The other ss 5 and 6 COCA principles can also be properly canvassed and addressed.
[54] In the event of the appeal being allowed counsel have made enquiries with the Family Court and I am advised that this matter might be accommodated as a backup fixture on 23 February 2021 or, if not reached, a firm fixture in April or May 2021. The interim orders set out below are designed to meet the best interests of the children until the Family Court is able to determine how the parenting arrangements should operate in the future.
Result
[55]The appeal is allowed.
[56] The matter is remitted back to the Family Court for a full safety hearing on a date to be fixed by the Family Court Registrar.
[57]The parenting orders made on 4 November 2020 are quashed.
[58] The following parenting orders are substituted until further orders of the Family Court:9
(a)the children are to be in the day-to-day care of their father;
9 While Mr Eggleston advises XL does not consent to shorter periods of contact, as I understood him, XL does not actively oppose such orders so long as the periods of contact are longer than at present.
(b)the children are to have supervised contact with their mother at KidzCare and s 60 funding is made available for that purpose;
(c)XL is to have a supervised FaceTime call with the children three times per week for one hour;
(d)XL is to have supervised contact each weekend for two hours at a park or similar venue, with RH or his partner providing supervision if they wish, but not interrupting their contact.
(e)on Christmas day, XL is to have supervised contact with the children for three hours at a park or similar venue, with RH or his partner providing supervision if they wish, but not interrupting their contact; and
(f)the parties shall arrange a parental assessment with Sue Lightfoot, or another appropriate candidate chosen by agreement between the parties, with the costs to be shared equally.
[59] For the purposes of the safety hearing in the Family Court I make the following timetable orders:
(a)lawyer for the children is to file and serve the relevant OT records by
22 January 2020 (subject to her agreement);
(b)RH is to file and serve any further material no later than 5:00 pm on 29 January 2021;
(c)XL is to file and serve any further material/response no later than 5:00 pm on 12 February 2021;
(d)RH is to file and serve any material in reply no later than 5:00 pm on 19 February 2021; and
(e)a pre-hearing conference is allocated for after 19 February 2021, with appropriate directions to be made and hearing scheduled.
[60] The parties are encouraged to attempt to agree on the question of costs. In the event agreement is not reached, costs memoranda are to be filed and served no later than 5:00 pm on 22 January 2021 by XL, and no later than 5:00 pm on 12 February 2021 by RH. These are to be no longer than three pages. Costs will then be determined on the papers.
Moore J
Solicitors:
Mr Eggleston, Tauranga MacKHzie Elvin Law, Tauranga Ms Eagles, Tauranga
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