G v M [2021] NZHC 2066

G v M [2021] NZHC 2066 [10 August 2021]NOTE: PURSUANT TO S 182 OF THE FAMILY VIOLENCE ACT 2018 ANDS 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THISPROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THEFAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEEhttps://www.justice.govt.nz/family/about/restriction-on-publishing-judgments/IN THE HIGH COURT OF NEW ZEALANDTAURANGA REGISTRYI TE KŌTI MATUA O AOTEAROATAURANGA MOANA ROHECIV-2021-470-77[2021] NZHC 2066UNDER the Care of Children Act 2004BETWEEN E L GAppellantAND M W MRespondentHearing: 10 August 2021Counsel: G J Haszard for appellant (on instructions from L Jack)D J Eades for respondentJ A Douglas for childJudgment: 10 August 2021ORAL JUDGMENT OF KATZ JSolicitors: Lee Jack, TaurangaLance Lawson, TaurangaCounsel: G J Haszard, Barrister, TaurangaJ A Douglas, Strand Chambers, Tauranga[1] This is an appeal from a decision of Judge S J Coyle, in the Family Court atTauranga, under the Care of Children Act 2004 ("the Act").Background[2] The parties lived together for 10 years, until separating in 2016. Theyhave one son, "O". Following his parents' separation, O lived with the appellant(his mother). He currently has no relationship with the respondent (his father). Thefather applied for a parenting order that would enable him to have contact with O. Themother opposed that application.[3] Following a contested hearing, Judge Coyle made a final parenting order in thefollowing terms:1(i) [O] is in the day-to-day care of [his mother].(ii) [O] is to have contact with his father as follows:(1) Every second Sunday from 12 noon to 1.30 pmcommencing Sunday, 13 June 2021 with thechangeover to be at [a specified location].(2) From 1 August 2021 every second Sunday from10 am to 4 pm with the changeover to be at the sameplace.(3) From the weekend of 3 September 2021 from afterschool Friday until Sunday 3 pm with the changeoveron the Sunday to be at the same place andthereafter every second weekend from after schoolFriday until Sunday afternoon.(4) From 12 noon on 23 December in odd numberedyears through until 12 noon on 26 December in evennumbered years with the changeover to be at the sameplace. In even numbered years, from 2 pm onChristmas Day through until 3 pm on 30 December.(b) Any application for variation or any application for admonishment isin the first instance to be referred to me for consideration.(c) I would ask that Ms Bromiley2 meet with [O] to discuss this decisionwith him and the reasons why and the Court's clear expectation that[O] will comply, and that if he does not, that there may be subsequent1 MMW v GLE [2021] NZFC 5151 at [40]. The names of the parties and the child are anonymisedin the citation and in this judgment.2 Lawyer for Child in the Family Court proceeding.consequences as discussed with [O]. Ms Bromiley's appointment istherefore terminated in 21 days' time so as to give her time to meetwith [O].(footnote added)[4] Following the making of these orders, three attempts were made to establishcontact between O and his father. These were unsuccessful and no doubt traumaticfor all involved including, in particular, O. On all three occasions when O was meantto have contact he was upset and verbally abusive towards his father and ran away.On the third occasion he hit his father before doing so. There is nothing to suggestthat the father was in any way at fault on any of these occasions. His reportedresponses were restrained.Stay application[5] On 1 July 2021, the mother filed an appeal against Judge Coyle's decision. Shealso applied for a stay of the Family Court orders pending the hearing of the appeal.The stay application was heard on a Pickwick basis.3 Toogood J granted a stay upuntil the date of the hearing of the appeal (i.e. today).4The parties' current position[6] In the lead up to today's hearing both parties have reflected carefully on thebest way forward, with the benefit of a comprehensive and helpful updated s 133 reportprepared by Ms Lightfoot, a registered psychologist.5 That report takes into accountthe failed contact attempts following the Family Court hearing.[7] Ms Lightfoot canvasses various ways forward, but ultimately appears to bemost supportive of a therapeutic approach to re-establishing contact between O andhis father. This would require a variation of the current orders. Ms Lightfoot notes,however, that such an approach can only be successful with the support of bothparents.3 That is, an ex parte application at which the respondent is present. See Pickwick InternationalInc (GB) Ltd v Multiple Sound Distributors Ltd [1972] 1 WLR 1213 (Ch).4 GLE v MMW [2021] NZHC 1862 at [51].5 The Court may order specified reports under s 133 of the Care of Children Act 2004.[8] Fortunately, it now appears that both parents agree that a therapeutic approachaimed at restoring the relationship between O and his father is the best way forwards.Such an approach would involve O working more gradually towards re-establishing arelationship with his father, with all parties (O, his mother, and his father) undertakingcounselling either together or separately, towards that aim. Ms Lightfoot has made anumber of recommendations as to how best to maximise the prospects of a therapeuticintervention approach succeeding. Amongst other things, she advises that atherapeutic intervention approach in these types of difficult cases is significantlyenhanced by the oversight of the Court.[9] Given the significant progress that had been made prior to this morning'shearing, I stood the matter down to enable further discussions to take place betweenall involved. Those discussions were productive and have resulted in the partiesagreeing proposed interim orders. Those orders are supported by Lawyer for Child. Ihave reviewed them and am satisfied that they are in O's best interests. I accordinglypropose to allow the appeal, by consent, and substitute the new interim parentingorders that the parties have agreed.[10] I commend the parties and their counsel on the constructive approach they havetaken to resolution of this very difficult case. It is clearly in O's best interests that hisparents present a united front going forwards, and I encourage them to continue withthe constructive approach that was evident today.Is there jurisdiction to make an interim parenting order?[11] I note that my decision to allow the appeal is made in light of events subsequentto the Family Court hearing, and with the benefit of an updated s 133 report fromMs Lightfoot. No criticism of Judge Coyle is intended. It is necessary, however, toengage with one comment by the Judge that I believe to be in error. He stated in hisjudgment that "I have made a final order as that is what the Act requires".6 The Judgecites s 49C(2) of the Act as authority for that proposition.6 MMW v GLE [2021] NZFC 5151 at [39].[12] Under r 20.19 of the High Court Rules 2016 this Court, in its appellatejurisdiction, is entitled to "make any decision it thinks should have been made" by thelower Court. Obviously, I cannot make an interim parenting order, even by consent,if such an order would have been beyond the jurisdiction of the Family Court. I acceptthe submission of all three counsel this morning, however, that the Family Court didhave jurisdiction to make an interim parenting order. It follows that this Court alsohas jurisdiction to make such an order on appeal. In particular, s 49 of the Act providesfor the making of interim parenting orders at any time before an application for aparenting order is finally determined in court if the Judge is "satisfied that an interimorder serves the welfare and best interests of the child better than a final order". Inmy view it was therefore open to the Judge to defer making a final parenting order andto instead make an interim parenting order.[13] I note that this interpretation of the relevant provisions is consistent with theviews of the learned authors of Brookers Family Law – Child Law who state, whendiscussing the criteria for determining whether an interim order is better than a finalorder, that:7Another situation where an interim order may be preferred is when a contactorder is made in favour of a parent who has not had significant contact forsome time, so that the effect of contact on the child can be monitored andassessed.[14] That is precisely the situation here. Both parties, Lawyer for Child, andMs Lightfoot are all agreed that ongoing court monitoring and supervision would behelpful while contact is (hopefully) re-established. That is best achieved through themaking of an interim parenting order.Result[15] Against this background I allow the appeal, discharge the final parenting ordermade in the Family Court, and substitute the following interim parenting order, byconsent:(a) That O continue in the day-to-day care of his mother.7 Amy Bayliss and others Brookers Family Law – Child Law (online looseleaf ed, ThomsonReuters) at [CC49.03].(b) That the mother and the father agree to jointly engage Mr WarwickHansen to provide therapeutic counselling to assist with there-establishment of contact between the father and O, with the costs ofthe counselling to be shared equally between the parties.(c) That the mother and the father agree to attending one-on-one sessionswith Mr Hansen, joint sessions with Mr Hansen, sessions with O eitherjointly or separately and O attend separate sessions with Mr Hansen asrecommended by Mr Hansen.(d) The goal of the counselling is to be, without limiting Mr Hansen'sprofessional approach to the counselling:(i) reunification between O and the father; and(ii) promoting coping mechanisms for O under stress.(e) Mr Hansen is to have access to the Family Court file, including theaffidavits of both parties and the judgment of his Honour Judge Coyle.(f) That a period of six months will be provided for the parties to undertaketherapeutic counselling with Mr Hansen.(g) That the matter is to be scheduled for a Judicial Conference of30 minute duration in the Family Court at Tauranga not less thanthree months from the date of interim order, for Mr Hansen to providean update to the Court on the therapeutic counselling and forconsideration of orders to be made following the six month interimperiod. The parties are to file a memorandum and Lawyer for Child toprovide an updating report three days prior to the Judicial Conference.(h) That Mr Douglas, as Lawyer for Child, has leave to bring the matterback before the Family Court with 48 hours' notice.(i) In addition to the therapeutic counselling, that an order for s 46Gcommunication counselling is made.(j) That the mother and the father are the joint guardians of O andnotwithstanding O is in the day-to-day care of the mother, the motherwill ensure that the father is included in any guardianship decisionswith respect to O.(k) the father will ensure that he requests with O's current school, or anyother school that O attends in the future, to be included in allcommunications regarding O.(l) the father to be listed at O's school as a next of kin, together with themother.(m) the mother to send photos to the father of O, with O's knowledge.(n) the father and the mother will communicate regarding attendance atparent/teacher interviews for O. In the event that one parent is unableto attend the parent/teacher interview the attending parent will ensurethe non-attending parent is provided with an update by e-mail withinseven working days of the parent/teacher interview summarising whatwas discussed at the parent/teacher interview.(o) The proceedings are referred back to the Family Court.____________________________Katz J