M AND D BY THEIR LITIGATION GUARDIAN ANTONY GLADSTONE MAHON V S AND ANOR HC AK CIV 2007-404-1624

M AND D BY THEIR LITIGATION GUARDIAN ANTONY GLADSTONE MAHON V S AND ANOR HC AK CIV 2007-404-1624 12 October 2007ANY PUBLICATION OF A REPORT OF THESE PROCEEDINGS MUST COMPLY WITH S 139 OF THE CARE OF CHILDREN ACT 2004 IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2007-404-1624BETWEEN M AND D BY THEIR LITIGATION GUARDIAN ANTONY GLADSTONE MAHON Appellants AND S First Respondent AND H Second Respondent Hearing: 2, 3 August 2007 Appearances: A G Mahon as litigation guardian for the appellants E B Parsons for the second respondent No appearance by first respondent S Jefferson amicus curiae Judgment: 12 October 2007 at 4 p.m.JUDGMENT OF POTTER J On appeal against parenting orders re contractIn accordance with r 540(4) High Court Rules I direct the Registrar to endorse this judgment with a delivery time of 4 p.m. on 12 October 2007Solicitors: Mahon & Associates, P.O. Box 47452, Ponsonby, Auckland Copy to: E B Parsons, P.O. Box 46318, Herne Bay, Auckland S Jefferson, P.O. Box 196, Shortland Street, Auckland The First RespondentTABLE OF CONTENTS Introduction [1]Grounds of appeal [6]The judgment appealed [7]Approach on appeal [16]The 2003 and 2004 Family Court judgments [19]Care of Children Act 2004 – relevant provisions [27]Section 5(3): protection of child from all forms of violence [28]Other grounds of appeal [51]Outcome of appeal [60]Orders [70]Costs [72]Introduction[1] M aged 13 years and D aged 9 years by their litigation guardian appeal against a judgment of Judge L J Ryan in the Family Court dated 20 March 2007 which granted their father unsupervised contact with them ("the judgment"). The judgment was stayed pending appeal by order of the Family Court on 2 April 2007. [2] Mr Mahon was appointed litigation guardian for the appellants by this Court prior to the appeal being filed on 11 April 2007. There being doubt whether the judgment made final orders or interim orders under s 57 of the Care of Children Act 2004 ("the Act") which would require leave to appeal under s 143(3), an order granting leave to appeal was obtained from the Family Court on 3 August 2007. [3] The first respondent is the father of the appellants. He did not appear and was not represented at the appeal hearing. He filed in the Family Court a document dated 30 April 2007 in which he states that he wishes to withdraw the application for contact with M and D and their younger sister T aged 7 years. He also filed a statement dated 3 May 2007 which gives his explanation for his withdrawing the application for contact, and states that he will not be attending any more Family Court or High Court hearings. [4] Mr Jefferson was appointed as amicus curiae on the appeal. He did not advance submissions on the substantive aspects of the appeal to which this judgment relates, but rather addressed the procedures and practicalities raised by an appeal by "a child to whom those proceedings relate" under s 143 of the Act. This is the subject of a separate judgment. [5] This Court directed that a further updated report be prepared by Associate Professor F W Seymour, clinical psychologist, for the purposes of the appeal, and granted leave for him to be cross-examined, limited to matters not traversed in evidence at the earlier Family Court hearing. Dr Seymour filed a report dated 4 July 2007 and gave evidence in respect of it at the appeal hearing. I refer to this evidence later in this judgment.Grounds of appeal[6] These may be summarised as follows: a) The Judge failed to correctly conduct an analysis of risk in recommencing unsupervised contact between M and D and the father. b) The Judge placed insufficient weight on certain evidence – i) Relating to psychological abuse found to exist in the 2003 judgment of Judge Robinson and the 2004 judgment of Judge Adams in the attitude and behaviour of the father and its effect on the boys (M and D); ii) The views of the second respondent, the mother, as to the progress made by the boys without contact with their father, and the risks both for the boys and their mother's ability to parent them if contact resumed; iii) The clear view expressed by Dr Seymour that the boys could be at risk if contact was resumed; iv) The concerns expressed by the boys about contact recommencing. c) The Judge placed undue weight on the principles in s 5 of the Act in circumstances where it had already been established that the relationships between the boys and their father was not "normal". d) The judgment failed to regard the welfare of the child as the first and paramount consideration as specifically required by ss 4(1) and (2) of the Act.The judgment appealed[7] At the hearing before Judge Ryan the father and the mother appeared in person as they had at Family Court hearings in 2003 and 2004. Mr R J Collis was appointed as counsel to assist the Court. [8] The judgment outlined the background that brought the father's application for parenting orders before the Family Court. A 2004 judgment of Judge Adams made parenting orders in respect of four of the five children in the family. The orders in respect of M and D prevented their having face to face contact with their father. Judge Adams directed that two years were to elapse before the issue of contact was reviewed; then either the father or mother might apply for reconsideration. The father applied, seeking contact for the four youngest children with both parents and with each other. The eldest son was by then aged 16 and was living with his father. [9] The Judge said that the expert opinion of Dr Seymour who had again been invited to assess the situation and provide a report to the Court, was: a significant factor to take into account when considering what future relationships these children should have with their siblings and their parents. (at [4])[10] The Judge said that his decision must be based on the welfare and best interests of all four children. He referred to Dr Seymour's report elsewhere in the judgment and particularly in considering the principle in s 5(e):The child's safety must be protected and, in particular, he or she must be protected from all forms of violence He said at [13] and [14]:Clearly however, for all the reasons explained by Judge Adams, there is a clear risk that the boys may be subjected to emotional abuse whilst in the care of their father unless he modifies the way in which he deals with the children's mother and in particular, does not undermine her parenting of them. As Dr Seymour said, the responsibility for successful contact lies primarily with [the father].Dr Seymour's assessment was that [the father] had displayed little change in his attitudes since the 2004 hearing, therefore it was unlikely that his behaviour could be modified. Consequently, the children could be at risk if contact between the two younger children and their father was recommenced.[11] He summarised the views of M and D at [21]:Insofar as M and D are concerned, there is nothing, which would indicate that they do not wish to spend time with their father and in M's case, he is relatively positive about that contact.[12] The Judge continued at [24]:The exercise that I must undertake is a balancing one. I agree entirely with [the mother] that there are risks associated with the reintroduction of contact. On the other hand, these children have the right to enjoy ongoing, meaningful relationships with their siblings and parents. I am satisfied that provided the risks to the children can be managed and minimised, it is in their welfare and best interests to attempt to enable mutual contact.[13] At [25] he said that because of the risks identified by Dr Seymour the parenting orders would be monitored in six months time by way of a brief updated report by Dr Seymour as to how the boys were functioning with the reintroduction of their father into their lives. [14] The Judge made orders which he said reflected a regime proposed by the father and set in place a programme for graduated increase in unsupervised contact between the boys and the father:2.1 Initial email contact for two weeks; 2.2 Then twice-weekly telephone calls on Tuesday and Thursday evenings (the boys to call their father); 2.3 Then one month after commencement of indirect contact, the boys to each fortnight spend between 9.00 am and 6.00 pm on Saturday or Sunday with their father; 2.4 After three fortnightly daytime visits the contact to be extended to an overnight stay with their father each fortnight; 2.5 After four weekend visits the overnight contact to be increased to two overnight stays (Friday and Saturday) every fourth week; 2.6 At that stage every intervening fortnight one of the boys to spend either Saturday or Sunday (not overnight) with their father;2.7 The proceedings are to be monitored in six months time; 2.8 Leave reserved for Lawyers for the boys to apply to suspend or vary the Orders (on seven days notice); 2.9 Depending on how contact has been accepted by the boys, at the review date, arrangements for Christmas holiday contact and the issue of [the younger sister's] care could be explored; 2.10 The Psychologist was requested to prepare an updated report after six months by meeting briefly with the boys, as to how the contact regime was impacting on the boy's welfare and best interests. The report was also to indicate a method by which [the younger sister] could be introduced to her father.[15] Of course because of the stay ordered on 2 April 2007, the orders have not been implemented.Approach on appeal[16] The appeal is against the exercise of a judicial discretion. [17] The approach of this Court on such an appeal was recently encapsulated by Asher J in Sharma v Wati HC AK CIV 2006-404-2976, 15 June 2007 who cited from W v Chief Executive of Child Youth & Family Services [2004] NZFLR 12 at [31]-[32]:To the extent that the Judge is exercising a discretion, the formula preferred by the Court of Appeal in May v May [1982] 1 NZFLR 165 at 170 will obtain: An appellant must show that the Judge acted on a wrong principle; or that he [or she] failed to take into account some relevant matter or that he [or she] took account of some irrelevant matter or that he [or she] was plainly wrong. It therefore follows that the decision will not be interfered with unless: (a) the decision maker got the law wrong; (b) a relevant consideration has not been taken into account; (c) an irrelevant consideration has been taken into account; or (d) the decision is plainly wrong, in the sense that there has been a clear failure to balance properly the relevant considerations.[18] The approach of this Court to an appeal from the Family Court has been authoritatively stated by Blanchard J in D v S [2003] NZFLR 81 (CA) at [18]:An appeal to the High Court from the Family Court is an appeal by way of rehearing. Whilst the High Court will naturally give weight to the views of the specialist court and may in some cases think it best to remit the case for reconsideration, it is fully entitled to substitute its views on questions of fact, including the issue of what is in the best interest of the child or children concerned. There is no rule of law requiring the High Court to defer on these respects to the Family Court even in the finely-balanced case.The 2003 and 2004 Family Court judgments[19] The father and the mother married in 1987. They separated in 2000 prior to the birth of their fifth child T. Various orders were made by consent in relation to the custody and access of the children until in 2003 the mother applied to suspend the father's access to M, D and T. [20] In a judgment dated 16 June 2003 following a defended hearing (the 2003 judgment), Judge Robinson discharged existing orders and suspended access by the father to M and D, other than by internet or correspondence, pending further order of the Court. All orders were to be reviewed in six months. The Judge stated in the final paragraph [36] of the judgment that he found the children (all five) to be at risk. He expressed the hope that the orders and directions he made would be sufficient to keep the children safe and to avoid the risks. [21] In explaining his reasons for making the orders, the Judge found at [24] in relation to M and D:Having regard to the previous history, I am satisfied that the access occurring in May was not successful. I accept the wife's version and the evidence of the school teacher as establishing that conclusion. It is also consistent with what has happened on previous occasions. It is quite clear that the effect of that access caused the children to act in an extreme way and undermined the wife's authority. At [25] he said: Although I have to have regard to the children's wishes, the paramount consideration must be the welfare of the children and the issue I have to decide, taking all factors into account, is whether directing access willpromote the children's welfare. In the present case there is plenty of evidence to establish extreme behaviour following access, evidence that access does undermine the wife's authority and consequently evidence that supports the psychologist's conclusion, a conclusion I emphasis that he very rarely comes to, and that is that access should be suspended. Thus with some reluctance I have decided that the wife's application to suspend weekend access must succeed.[22] In January 2004 the father applied to resume access with M and D. In a judgment dated 18 June 2004 (the 2004 judgment), Judge Adams made final orders, not to be reviewed for two years, that the father should not have access to M and D otherwise than by the internet and letters. [23] Judge Adams referred to "the carefully reasoned judgment" of Judge Robinson on 16 June 2003 when interim orders were made. [24] He referred to the "golden rule" that required him to regard the welfare of the five children of the parties as the first and paramount consideration. He said at [4]: This includes their need for stability, for a fair chance to grow up in a healthy environment, and the need to minimise the risk of damage to their lives by family conflict, even where that arises from ignorance or awkwardness rather than from malevolence.He found at [13]:[The mother] has experienced years of undermining of her parental authority by [the father]. In that context the children tested boundaries. As a result she coped poorly with discipline and was unable to direct the children successfully.Then at [15]:Returning then to the children, it became possible for hugely destructive and dysfunctional behaviour to develop because of the lack of support by [the father] of [the mother's] parenting role. [The older boys] picked on the younger two boys in brutal and demeaning ways. All the boys were disrespectful to their mother to a level which I found astounding, despite the thousands of cases I have read in the last nine years. [The father] not only tolerated much of this behaviour, but I find he gave the boys permission and sometimes an example in demeaning their mother, which contributed to the other dysfunctional interactions between the siblings.The Judge continued at [35] and [36]:I find that the family dysfunction, for many years, has amounted to serious psychological abuse of the four older children. In my judgment their prime need is for stability, and the opportunity to develop their own individual senses of self without significant disruption. The situation between the parents has been described, in this case, as toxic for the children. Some toxicity is found in most family break-ups, but the length, extent and pervasion of the toxicity in this case renders these children particularly vulnerable.At [42] he found:M and D do have a measure of interest in their father, but of greater importance in their development is the maintenance of their functional situation with their mother. If her parenting is undermined; if their attitude towards her becomes confrontational, or their behaviour starts to significantly test her again; that would be significantly contrary to their welfare. Given the history, I agree with Dr Seymour that significant contact with their father raises risks for those boys which would very likely compromise what have been hard won gains over the last 12 months.[25] Judge Adams reached the decision that there should be no access to M and D by the father (nor by the mother, to the older boys, then living with the father). He said at [5] and [6]: This is a very unusual outcome. Despite that, I have no reluctance in making the orders. In my judgment they are necessary for the welfare of the children, when the context is properly analysed. My decision coincides with the professional view of Dr Seymour, one of New Zealand's most eminent child psychologists. Dr Seymour has completed four reports in this case, commencing in 1991 through to December 2003. His professional opinion is based upon significant depth of knowledge of the children and their parents. Dr Seymour's opinion is worthy of respect in this case not only because of his seniority in his profession, his scholarship and reputation, and his depth of knowledge of these particular children. In addition to that he cannot recall ever making a recommendation to suspend access in a case where there was neither gross neglect or gross abuse by a parent. This case stands out for him in his experience. And Dr Seymour is a generously hopeful person, slow to criticise, careful and moderate when he expresses a negative view about a person's conduct. In this case he has firmly recommended against access, and suggests that that should continue to be the case for another two years unless the children themselves strongly and positively request access.[26] I have referred in some detail to these previous Family Court judgments because it is vital to understand the long-term family dynamics and the context in which the Court judged in 2003 and 2004 that it was necessary for the welfare of thechildren (absent evidence of gross neglect or abuse) to take the very unusual step of suspending face to face access by a parent, namely the father.Care of Children Act 2004 – relevant provisions[27] The provisions of the Act which are of fundamental importance and were required to be given effect in the decision of Judge Ryan on the father's application for contact with the children are:Section 3: Purpose of this act(1) The purpose of this Act is to – (a) promote the children's welfare and best interests, and facilitate their development, by helping to ensure that appropriate arrangements are in place for their guardianship and care; and (b) recognise certain rights of children.Section 4:Child's welfare and best interests to be paramount(1) The welfare and best interests of the child must be the first and paramount consideration - (a) in the administration and application of this Act, for example, in proceedings under this Act; and (b) in any other proceedings involving the guardianship of, or the role of providing day-to-day care for, or contact with, a child. (2) The welfare and best interests of the particular child in his or her particular circumstances must be considered. (3) A parent's conduct may be considered only to the extent (if any) that it is relevant to the child's welfare and best interests. (4) For the purposes of this section, and regardless of a child's age, it must not be presumed that placing the child in the day-to-day care of a particular person will, because of that person's sex, best serve the welfare and best interests of the child. (5) In determining what best serves the child's welfare and best interests, a Court or a person must take into account –(a) the principle that decisions affecting the child should be made and implemented within a time frame that is appropriate to the child's sense of time; and (b) any of the principles specified in section 5 that are relevant to the welfare and best interests of the particular child in his or her particular circumstances. (6) Subsection (5) does not limit section 6 (child's views) or prevent the Court or person from taking into account other matters relevant to the child's welfare and best interests. (7) This section does not limit section 83 or subpart 4 of Part 2 (which relate to overseas parenting orders and overseas abductions).Section 5 sets out principles relevant to child's welfare and best interests. Section 5(e) provides:The child's safety must be protected and, in particular, he or she must be protected from all forms of violence (whether by members of his or her family, family group, whanau, hapu, or iwi, or by other persons).Section 6:Child's views(1) This subsection applies to proceedings involving - (a) the guardianship of, or the role of providing day-to-day care for, or contact with, a child; or(2) In proceedings to which subsection (1) applies, - (a) a child must be given reasonable opportunities to express views or matters affecting the child; and (b) any views the child expresses (either directly or through a representative) must be taken into account.Section 5(e): protection of child from all forms of violence[28] Of particular relevance in this case is the requirement of s 5(e) that the child must be protected from all forms of violence.[29] The use of the words "all forms of violence" makes clear that violence from which the child is to be protected in terms of s 5(e) has a wider definition than in ss 58 to 62 of the Act which apply to cases involving violence. For the purposes of those sections, pursuant to s 58, violence means "physical abuse or sexual abuse". But that definition does not exclude the Court in cases where physical or sexual abuse is found, from addressing concerns about psychological or emotional abuse or violence. As Heath J said in Blom v MacKay (2004) 23 FRNZ 644, also reported asA v X [2005] 1 NZLR 123 at [70]: had the Judge considered the potential psychological harm to the child as part of the s 16B [the predecessor to ss 60 and 61 of the Act] inquiry as to safety, he would have lacked jurisdiction to make an order for unsupervised access unless he was satisfied to the standard discussed in T v M and W v Wthat the child would be safe in the care of Mr MacKay. Only if he could find affirmatively that the child would be safe would he be entitled to consider whether unsupervised access was in the best interests of the child. (refer T v M (1984) 2 NZFLR 462 (CA); W v W (2004) NZFLR 150 (CA))[30] In Fielder v Hubbard [1996] NZFLR 769 Judge Ellis said at 779:There is nothing in the new legislation (Guardianship Amendment Act 1995) to indicate that the Court should be doing less rather than more for the protection of children. I have therefore taken the view that the special provisions of ss 16A-16C are intended to standardise the approach to be taken where there are clear allegations of physical abuse or sexual abuse, while leaving the Court free as to the approach it will take in cases where the safety of the child, or of a party, is at risk because of psychological or emotional abuse. It may be that the Court will adopt the same approach in such cases as that prescribed by s 16B but it is not obliged to do so. Where the evidence in a case presents a clear risk to the safety of a child, or party, from psychological abuse only, the "context" must require the similar process, i.e. first determine the allegations, and then be satisfied as to the safety of a child when making any order as to custody or access.Risk analysis[31] Mr Mahon, on behalf of the appellants and counsel for the mother, submitted that Judge Ryan took the wrong starting point. He was determining an application in which in two previous judgments in 2003 and 2004, the risk of serious emotional/psychological abuse from the father had been found too great to allow face to face contact between M and D and their father. In those circumstances a risk analysis had first to be carried out before other issues of the welfare and bestinterests of the child having contact with the parent were assessed. The process of risk analysis had to be disciplined and transparent. [32] Ms Parsons referred to the comments of Hardie Boys J in M v Y [1994] 1 NZLR 527 (CA) at 533:Where an allegation of sexual abuse is made – and the same is no doubt true of any allegation of misconduct bearing on the welfare of the child - the Court's task is twofold. First it must deal with the allegation; and secondly it must determine the application before it in the light of all the circumstances that are relevant to the child's welfare, including its findings upon the allegation. The second aspect, involving as it does a much wider issue than the first, is the Court's primary function, and the result is not necessarily dependent on the outcome of the first. (Emphasis provided.)[33] That two stage approach was reiterated by Heath J in Blom v MacKay. He stated at [32]:As I have noted, the usual inquiry of a Judge, on an application under the Act, is a predictive assessment of the best interests of the child (the s 23 inquiry). However, when issues of domestic violence arise a logically prior inquiry is undertaken, namely into the safety of the child (the s 16B inquiry). Only if the s 16B inquiry is answered favourably to a parent who has been found to have been violent will the Court be able to consider (on a s 23 inquiry) whether it is in the best interests of the child for unsupervised access or a custodial order to be made in favour of that parent.At [33] he identified the two parts of the inquiry, which reflected those identified by Hardie Boys J in M v Y. [34] The two-stage approach was confirmed and applied by Winkelmann J inBlom v MacKay [2005] NZFLR 1036. [35] Blom v MacKay concerned circumstances of physical or sexual abuse. I accept the submissions of counsel that, as contemplated by Hardie Boys J in M v Yand by Judge Ellis in Fielder v Hubbard where, as in this case, there has been found a risk of serious emotional/psychological abuse which has led to orders preventing face to face contact between M and D and their father, a process of risk analysis was required to ascertain whether the children would be safe if unsupervised face to face contact were to be resumed, before other issues of welfare and best interests of the children were assessed.[36] It was further submitted that an analysis of the current risk, i.e. the likelihood of the dynamic of psychological abuse found in the 2004 judgment occurring for the boys in any future contact with their father, was not undertaken. Rather the Judge incorrectly applied the principles of s 5 of the Act to determine what was in the welfare and best interests of all the children. [37] The Judge identified from the 2004 judgment that there was a clear risk that M and D would be subjected to emotional abuse while in the care of their father unless he modified the way in which he dealt with their mother and in particular did not undermine her parenting of them. He identified no evidence from which to conclude that risk had significantly diminished or indeed diminished at all. Rather, the Judge referred at [14] to Dr Seymour's assessment that the father had displayed little change in his attitude since the 2004 hearing and therefore it was unlikely that his behaviour could be modified. He then said at [14]:Consequently, the children could be at risk if contact between the two younger children and their father was recommenced. (emphasis provided)[38] When asked in cross-examination at the Family Court hearing whether there were changes by the father to address the concerns articulated by Judge Adams three years previously, Dr Seymour replied:No on the contrary, the last page of my report, para 4, I was very frank with [the father] I asked the question what could he do to improve the situation and his immediate response was – "[the mother] should get over it" He offered no suggestions as to how he might behave differently and I did probe for those recent history of parenting and poor judgment with respect to contact with the other children does not inspire optimism (which) leads to a low level of confidence on my part that such contact were it to occur is without risk, in fact there is risk. (Emphasis added.)[39] So the Judge's conclusion I consider misstates the risk, given the firm opinion of Dr Seymour that absent a change in behaviour by the father (of which there was no evidence), face to face contact should not be resumed. [40] Although he acknowledged the potential for risk, the Judge then took a quantum leap to the following conclusion at [15]:In this context it is important to take into account that the boys are all nearly three years older since Judge Adams orders. There has been positive andsuccessful contact between R and his mother and siblings. R is not living with his father and is away from the influence of G. It is unlikely that he will return to live with his father. G has interests of his own. The dynamics of this family are quite different to those that presented in 2004.[41] The changes identified in relation to the two older brothers were questionably a positive factor, for in his report dated 24 October 2006 Dr Seymour stated in relation to the two older brothers G and R:In conclusion, it appears that for now at least there is a substantial breakdown in the relationships between both boys and their father The reports of their behaviour raise significant concerns But there were no differences in the family dynamics identified by the Judge that provided evidence that the clear risks previously identified in respect of M and D were diminished. To the contrary, when asked about the situation or the family dynamics after three years without any contact, Dr Seymour in a lengthy response reiterated his concerns for M and D, reverting to his concern that the father did not accept the children had done well in the last two to three years and that the father persisted in the belief the mother was an inadequate parent. After referring to the children's views (M, though expressed in a somewhat ambivalent way, that he would like to spend some time in his father's care and D that he did not seem to be concerned one way or the other about contact with his father (at [19]), the Judge next proceeded to undertake what he described as a balancing exercise, considering that on the one hand "these children have the right to enjoy ongoing, meaningful relationships with their siblings and parents", on the other hand that the risks needed to be managed and minimised. [42] The Judge adopted a regime for graduated increase in contact as proposed by the father stating at [25]:There is nothing inherently wrong with his suggestions.He said the risks identified by Dr Seymour would be dealt with by the parenting orders being interim, to be monitored in six months time by way of the updated report from Dr Seymour as to how the boys were functioning with the reintroductionof their father into their lives. Mr Mahon was to have leave on seven days notice to apply for orders varying or suspending the parenting orders the Judge made. [43] Counsel submitted these orders provided no protection for M and D from the risk of contact other than an ability for their lawyer to bring an application to vary or suspend contact on seven days notice, which placed an obligation on the boys to establish a basis for variation or suspension. No mechanism was put in place to ensure the contact orders were reviewed. All this in circumstances where there was evidence that even minimal contact between the boys and their father had been very negative and there was evidence that recent contact (the cellphone incident) by the father with M and D had had immediate and concerning consequences on the behaviour of both boys. [44] The cell phone incident followed an email request from M to his father for a cell phone for his birthday in August 2006 which was followed by a phone call by the father to the house in which he spoke to M and arranged to deliver the cell phone, which was in breach of the Court orders. The evidence was that the boys' behaviour deteriorated considerably after this incident including increased fighting between them, property damage, disobedience at home, erratic behaviour from both boys at school confirmed by the school principal, a deterioration in peer relationships, calling their mother names, M recommencing bed wetting and D becoming insecure about sleeping downstairs and wanting to come into his mother's bed. [45] In answer to questions from Mr Collis, counsel assisting the Court, Dr Seymour said that the impact of the cell phone incident arose not only from the boys seeing their father again, but from how the episode unfolded. This was done behind the mother's back and the cell phone represented an opportunity for unsupervised ongoing contact with the father. So it was not necessary for the father to say anything undermining – the very way in which the whole episode was managed was in itself undermining, disrespectful of the mother and done in a sort of secretive way which conveyed to the boys that something was wrong here. Dr Seymour noted it was not only M who carried consequences from this episode but that D's behaviour deteriorated as well. He agreed it was "history repeating itself".[46] Indeed the evidence relating to this recent episode harks back to the observations of Judge Adams in the 2004 judgment referred to at [24] where he observed the disrespect for their mother by the boys to a level he found astounding and that it was not only tolerated by the father but permitted and contributed to by him. [47] It had been held in 2003 and 2004 that the children were at risk to the extent that the Court had taken the unusual step on both occasions of preventing face to face contact of the father with M and D. Judge Ryan did not undertake a risk analysis. Instead, having referred to the 2004 judgment, Dr Seymour's expert opinion as being "a significant factor to take into account" and the requirement that his decision must be based on the welfare and best interests of the children, he embarked on a consideration of the s 5 factors. [48] He observed that because of the dysfunctional relationship between the parents it had been impossible for the parents to communicate to make their own arrangements for their children, that rather obviously the children had not had a stable ongoing and continuous relationship with both parents. He said at [9] referring to the principle in s 5(6) that the children should have continuing relationships with both of their parents:This principle would clearly dictate that the arrangements put in place in 2004 should be changed to enable this family to work towards some normality in the way they relate to each other, provided this can be done safely.And at [11]: If the two younger children could see that their father has a role to play in their lives, instead of being excluded, then this must be a positive feature and enhance the children's development and upbringing.He said that s 5(d) would suggest it was in the children's interests for there to be wider family contact including contact between the two younger boys and their two older brothers. [49] The way the Judge approached his decision led him to make assumptions in relation to the application of the principles in s 5 which were not available, forexample, that it "must be a positive feature for the children's development and upbringing that they could see their father has a role to play in their lives". That is not an assumption that can be made unless and until the Court can be satisfied that the children will be safe. If they will not be safe, contact with the father will not be a positive feature and will not enhance the children's development and upbringing. Nor will it promote their welfare and best interests as required by s 4 of the Act. [50] In the circumstances of this case, a risk analysis was an essential first step. While not mandated by the Act as in the case of physical or sexual abuse, given the history of this matter, the clear findings of risk by two Family Court Judges in 2003 and 2004 and the up to date report and evidence of Dr Seymour (who has had a long and close association with the children and with the concerns regarding this family) that the risk continued unchanged, the Judge erred in failing to undertake a risk analysis.Other grounds of appeal[51] The other grounds of appeal are subsumed in my findings in relation to the first ground of appeal. I comment only briefly on the ground that the Judge failed to properly take into account the views of the boys, in particular M, who wished to be able to cease contact in the event it was not working for him. [52] Section 6(2) requires a child to be given reasonable opportunities to express views on matters affecting the child and any views so expressed must be taken into account. That does not elevate the views of the child above considerations of welfare and best interests which under s 4 must be the first and paramount consideration. As Priestley J said in Brown v Argyll (2006) 25 FRNZ 383 at [49]:The s 6(2)(b) requirement for the Court to take the child's views into account does not mean such views must be followed or are in any way determinative. Such views may well be in clear conflict with the Judge's s 4 assessment and in particular conflict with the s 3(1)(a) purpose of promoting a child's welfare, best interests, and development. Human beings are frequently not the best arbiters of their own best interests. Children, who have yet to develop to adulthood and are so frequently the casualties of parental conflict, are no exception to that truism.[53] Mr Mahon submitted that the Judge's summary of the views of M and D at [21] of the judgment was "simplistic and inaccurate". The Judge said:There is nothing which would indicate that they do not wish to spend time with their father and in M's case, he is relatively positive about that contact.[54] Mr Mahon referred to his memorandum as lawyer for the children updating the Court on the views of the children for the defended hearing on 1 March 2007 before Judge Ryan, where in reporting M's views it was stated that M was confident that if he was not enjoying the contact with his father he would be able to talk both to his mother and to the lawyer for the child about his concerns and would like the opportunity to be able to stop seeing his father in such circumstances. For example M instanced that if he went to his father's place and his father asked him questions about his mother, then M would be unhappy. [55] Mr Mahon submitted that as a result of the judgment M does not have the ability to stop contact by talking to his mother or his lawyer, nor does the ability of the lawyer for the child under leave reserved in the judgment to apply on seven days notice to bring an application to cease contact, guarantee M's wish could be met with sufficient urgency or even at all. The Judge failed to place the views of M and D in the context of these particular children, the age and maturity of each child, their personalities and the family dynamics. [56] That submission is endorsed by the report of Dr Seymour dated 4 July 2007, prepared as an updating report for the appeal hearing. Having confirmed that if contact were to resume there should be evidence that the father is able to respond to the situation appropriately, he said there needed to be close monitoring of the progress of any such contact once established. If there were the same negative impact of contact observed in the past with these boys then there should be the ability to alter the arrangements made. He stated:Furthermore, and ironically, while seeking the boys' wishes in advance of implementing contact, there is no provision apparent in the recent contact orders that allows for their wishes to have force once contact is established.[57] That report was not of course before Judge Ryan. But it is I think fair to say that in summarising the views of M and D as he did at [21] he did not fully oraccurately reflect M's expressed views. He stated them in more detail at [19], but while he referred to M's confidence that if he were not enjoying contact with his father he would be able to say this to both his lawyer and to his mother, he did not refer to M's view that he would in such a circumstance like the opportunity to be able to stop seeing his father. [58] There is merit therefore in the submission that the Judge failed properly to take into account the views of the boys, in particular M. Further, if the Court could not be satisfied that the children would be safe were face to face contact with their father to be resumed, then the children's views became secondary to that overriding consideration. Only if a risk analysis satisfied the Court that the children would be safe with their father, could those views become determinative. [59] For these reasons I would allow the appeal.Outcome of appeal[60] Section 76 of the District Courts Act empowers the Court to make final orders on appeal. Mr Mahon urged me to do so, referring to s 45A of the Act that decisions should be made and implemented within a timeframe that is appropriate to M and D's sense of time. [61] I have before me all the evidence that was available to the Family Court Judge. I have in addition the updating report of Dr Seymour dated 4 July 2007 directed by Asher J on 26 April 2007, and the evidence he gave at the appeal hearing. [62] The report was directed to provide an update on Dr Seymour' previous reports and also to address the children's capacity to understand the implications of the appeal and to give instructions in respect of the appeal. Only the updating aspect of the report is relevant to the substantive appeal.[63] In his report Dr Seymour lists the previous reports prepared for the Family Court in relation to M and D and their siblings. They are dated 13 April 2001, 13 July 2001, 10 December 2002, 14 December 2003 and 24 October 2006. [64] In relation to the children's welfare he said at paragraph 23:I concluded in my last report that the younger three children were doing well in the care of their mother and that it was in their best interests that this relationship be maintained, if necessary at the cost of regular face to face contact with their father. [The father] appeared still to lack insight into how he can achieve the goals he wanted – close and trusted relationships with his children. I also observed that [the father] had yet to prove himself as being a parent capable of caring adequately for children himself, either as a primary parent or as a parent with weekend contact. These concerns about future contact between [the father] and the boys remain.[65] In his conclusions he stated at paragraph 32:In the present situation there are also considerations of the welfare or best interests of the children. I have in previous reports expressed my opinion consistently that there are welfare issues that are of great significance. Accordingly, I have offered the opinion that if contact is to resume there should be evidence that [the father] is able to respond to the situation appropriately.[66] As to the boys' wishes to see their father he concluded at paragraph 30:Both boys have changed in their expression of wishes to see their father from when I last interviewed them. They are now both equivocal.[67] I proceed therefore to conduct the risk analysis I have held should have been, and was not, conducted by the Judge:• The family dysfunction has for many years amounted to serious psychological abuse of the four older children. This was the finding of Judge Adams at [35] of the 2004 judgment. It was analysed thus by Dr Seymour in his first report dated 13 April 2001: the major conflict appears to be initiated by [the father]. This would appear to be the perception of the children also. There is no evidence of positive change.• Significant contact with the father raises risks for M and D which would very likely compromise what have been hard won gains (finding at [42] of the 2004 judgment, referring to the 12 months that elapsed between the 2003 judgment which found the children to be at risk of emotional/psychological abuse).• It is essential that the relationship of the three younger children with their mother is preserved to provide stability and a fair chance for them to grow up in a healthy environment. The risk of damage to them from parental and family conflict must be minimised.• There is a need for the father to accept responsibility for his behaviour and to change his attitude towards the mother in respect of his perception of her lack of parenting ability.• There is no evidence that the father has attempted to address his attitude and behaviours. In fact, he offers no suggestions as to how he might behave differently and blames the mother.• The incident with the cell phone in October 2006 is recent evidence of the impact of face to face contact with the father and the significantly negative impact of that contact on M and D and the mother's parenting of them.• The mother opposes the resumption of face to face contact because of the adverse effect it has on the behaviour of M and D and her relationship with them.• Dr Seymour reports that the boys are now both equivocal about seeing their father. This is a change from his previous report that they wanted to see their father subject to some qualifications, particularly in the case of M.• Dr Seymour maintains the very clear opinion he has held consistently through his long series of reports that in all the circumstances of this case, face to face contact is not in the best interests of the children and should not be resumed. I note in particular Dr Seymour's evidence that the dynamics of this family are, in his considerable experience, quite out of the ordinary and unusual. Heconfirmed, in giving evidence at the appeal hearing, that this was the first and only time in his work as a Family Court expert witness, he has recommended there be no face to face contact of children with a parent where there was no evidence of physical or sexual abuse. [68] Taking together all those factors, I am not satisfied that M and D will be safe from psychological and emotional abuse if face to face contact of M and D with the father were now to be resumed. [69] In considering the orders it is now appropriate to make I am mindful of father's recent "Application for withdrawal of my application for contact with my children". Of course, by the time the father filed that application dated 30 April 2007, his application for contact had been determined by the judgment of Judge Ryan on 20 March 2007. But he made it clear in the statement he filed that he does not intend to participate further in Court hearings regarding parenting orders. The father nevertheless is bound by and must abide by the orders I will now make.Orders[70] The appeal is allowed. [71] a) The orders made in [29] to[36] of the judgment are set aside. b) The father may write to and have internet contact with M and D but shall not otherwise have contact with them until further order of the Family Court. c) Application to review these orders shall not be made by any party before the expiration of 12 months from the date of this judgment.Costs[72] The appellants have been successful in this appeal. The applicable costs category was fixed as 2B by minute of Asher J dated 26 April 2007. If the appellants wish to pursue costs, they may file and serve a memorandum within 21 days of the date of this judgment. Other parties may file in reply within a further 10 days.