SHIRLEY v RICHMOND [2023] NZHC 913

SHIRLEY v RICHMOND [2023] NZHC 913 [24 April 2023]NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANYREPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION,PLEASE SEE https://www.justice.govt.nz/family/about/restriction-on-publishing-judgments/IN THE HIGH COURT OF NEW ZEALANDNAPIER REGISTRYI TE KŌTI MATUA O AOTEAROAAHURIRI ROHECIV-2022-441-85[2023] NZHC 913UNDER the Care of Children Act 2004IN THE MATTER of an appeal against a decision of the FamilyCourt of NapierBETWEEN SHIRLEYAppellantAND RICHMONDRespondentHearing: 4 April 2023Counsel: J F McDowell for AppellantRespondent in PersonK G Monk Lawyer for the ChildJudgment: 24 April 2023JUDGMENT OF ISAC J[Reasons for interim decision]Introduction[1] This urgent appeal concerns a parenting order made in the Family Court. At itscentre is Matthew, the 15-and-a-half-year-old son of Ms Shirley and Mr Richmond.Since their separation, Matthew's parents have struggled to parent Matthewcollaboratively. Their relationship is now marked by conflict and mistrust. This has inturn affected Matthew, who is a young person with complex needs.[2] In a final judgment of 30 November 2022, Judge Druce found that Matthew'sallegation of an assault by his father was untrue. He also rejected a renewed requestby Matthew's lawyer for a psychological report under s 133 of the Care of ChildrenAct 2004 (Act). He made final parenting orders in favour of Mr Richmond. Heconsidered Ms Shirley was unlikely to facilitate Matthew's relationship with his fatherand further delay in rekindling care and contact with Mr Richmond was not inMatthew's best interests. Pursuant to s 50 of the Act the Judge also extended theduration of the parenting orders until Matthew's 18th birthday.1[3] In this appeal, Ms Shirley challenges the parenting order on one ground only:she says the Judge was wrong to have determined that a psychological report wasunnecessary. In support of that contention, she points to Matthew's adverse reactionwhen advised of the Family Court's decision, and his refusal to have contact with hisfather. Ms Shirley also challenges an order made under s 77 of the Act, preventingMatthew's removal from New Zealand until his 18th birthday. Ms Shirley does notchallenge the Family Court's finding that Mr Richmond did not assault Matthew as hehad alleged.[4] The issue for determination is, then, a narrow one: was the Family Court wrongto conclude that a psychological report was unnecessary and, if so, was that errormaterial to its decision. On 6 April 2023 I issued a results judgment allowing theappeal.2 I now provide the reasons for that decision. Given the importance of the issueand the desirability of a prompt answer, my reasons are, of necessity, brief.Judgment of the Family Court[5] Three applications came for hearing before Judge Druce on 4 and5 October 2022:31 Section 50(1) of the Care of Children Act 2004 permits the Family Court to extend parentingorders beyond the child's 16th birthday where there are special circumstances.2 Shirley v Richmond [2023] NZHC 774.3 Shirley v Richmond [2022] NZFC 10170.(a) an application under s 68 by Mr Richmond asking the Court toadmonish Ms Shirley for failing to make Matthew available for contacton a number of occasions, and seeking an order that she pay a bond intoCourt to better ensure compliance with a parenting order made in 2019;(b) Ms Shirley's application under s 56, seeking a suspension of Matthew'scontact with Mr Richmond; and(c) Mr Richmond's application under s 77 for an order preventingMatthew's removal outside of New Zealand until the age of 18.[6] The parties represented themselves. Ms Monk appeared as lawyer for the child,and counsel to assist was also involved.[7] In an interim judgment of 10 October 2022, the Judge made a number ofimportant findings relating to Matthew's development and intellectual functioning.4Matthew was assessed by an educational psychologist when he was aged 11 usingvarious psychometric tools. He was found to have an IQ which placed him within thevery low range, or in the third percentile compared with other children his age.5 Areport by a consultant neurodevelopmental paediatrician completed in January 2019identified that Matthew had receptive and expressive language difficulties consistentwith his pre-school levels of functioning.6 This led the Judge to conclude in his interimjudgment that:7[Matthew's] intellectual incapacity to process and organise thoughts andexpress his views is limited by his low intellectual capacity. This is a casewhere expert psychological expert opinion would have been highly relevant.(emphasis added)[8] Turning to the allegation of family harm, Judge Druce concluded that it was"forensically unsafe" for the court to reach a clear decision given the limited evidencethen available.8 He also noted that Mr Richmond was, at that time, unwilling to attend4 At [35]–[41].5 At [37].6 At [39].7 At [41].8 At [46].a clinical psychologist "skilled in coaching parents and children where a child isresistant to contact".9 This was material because, as the Judge noted, while inMarch 2022 Matthew had expressed a willingness to go to his father's home onalternate weekends notwithstanding his allegation of assault, by June his views hadchanged. He said that he no longer felt safe being in his father's care. Matthew toldlawyer for the child that he was annoyed that his father was lying about not assaultinghim.10[9] The Judge made an interim order under s 77 preventing Matthew's removalfrom the country and adjourned the hearing part heard so that the parties could providefurther evidence relevant to the allegation of assault.11[10] The hearing recommenced on 18 November 2022. In a final judgment of30 November, the Family Court made an emphatic finding that:12 [Matthew] was not physically assaulted by his father shortly after beingcollected from school on the morning of 17 February 2022. The father'sevidence that he took [Matthew] to his workplace that morning is accepted bythe court.[11] Having made a positive finding that Matthew's safety is not beingcompromised by Mr Richmond, the Judge went on to consider a submission bycounsel for the child that it would be appropriate to obtain a psychological report unders 133 before making final parenting orders.[12] He noted lawyer for the child's concern for Matthew's psychological safety,given the chronic distrust and conflict between his parents, and Matthew's ownsubjective beliefs about the assault.13 He then noted:14Ms Monk does not support final orders. She considers a s 133 report to beessential. She is concerned that [Matthew] may well continue to resist contactwith his father and get caught up in enforcement court proceedings.9 At [48].10 At [45].11 Richmond v Shirley FC Napier FAM-2008-20-476, 5 October 2022 (Minute of Judge Druce).12 Shirley v Richmond [2022] NZFC 12146 at [20].13 At [27].14 At [28].[13] Judge Druce was not persuaded by this submission. He considered the delay inMatthew resuming unsupervised contact with his father was not in Matthew's bestinterests.15 He noted Matthew's increasingly anxious views against contact with hisfather that had developed over the course of the year.16 It was plain, however, that: [Matthew] is markedly intellectually vulnerable, and likely is emotionallyvulnerable due to his having grown up with chronic parental conflict anddistrust. The court is unable to place any significant weight on his expressedviews.[14] This aspect of the Family Court's judgment is not subject to any appeal, amatter Mr McDowell confirmed at the hearing of the appeal.[15] Turning to Ms Monk's submission in favour of a psychological report,Judge Druce concluded that the proceeding should not be prolonged in order to obtaina report. The reason was that this would "simply extend the parental distrust anduncertainty with negative impacts on [Matthew]".17[16] The Court then made final parenting orders requiring shared care in largelysimilar terms to orders which had been made by the Court in 2019. Importantly,Judge Druce also considered it appropriate, under s 50 of the Act, to extend theparenting order beyond Matthew's 16th birthday up to his 18th birthday:18Given the special circumstances arising from [Matthew's] very lowintellectual functioning, he will inevitably require his parents' ongoingengagement in his full day-to-day care beyond his 16th birthday and certainlyup to his 18th birthday.[17] Turning to Mr Richmond's application under s 77 (preventing Matthew'sremoval from New Zealand), the Court considered that Ms Shirley's "inability toaccept consistent professional opinion regarding [Matthew's] very low intellectualfunctioning" coupled with her inability to show any understanding "of why the courthas found that [Matthew's] account of being assaulted by his father is objectively notcredible" increased its concern that Ms Shirley might remove Matthew from15 At [29].16 At [31].17 At [33].18 At [34(j)].New Zealand to better "protect" him.19 She had indicated in submissions that she wasconsidering travelling to Brazil with Matthew in April 2023.[18] As a result, Judge Druce was satisfied that it was in Matthew's best interestsand welfare to maintain the interim order preventing his removal from New Zealanduntil his 18th birthday, or until further order of the court. In doing so he acknowledgedMs Shirley's submission that she had carefully complied with her guardianshipobligations when previously planning to travel with Matthew to Brazil, and heaccepted that that country is a signatory to the Hague Convention.20Section 133 of the Care of Children Act 2004[19] Under s 133 of the Act, a Family Court Judge is empowered to call for a"psychological report" in respect of an application for a parenting order.21[20] A psychological report is defined as one about the child who is the subject ofan application and covers any or all of the following subjects:22(a) how current arrangements for the child's care are working for the child;(b) the child's relationship with each party, including, if appropriate, thechild's attachment to each party;(c) the child's relationship with other significant persons in the child's life;(d) the effect or likely effect on the child of each party's parenting skills;(e) the effect or likely effect on the child of the parties' ability or otherwiseto co-operate in the parenting of the child;(f) the advantages and disadvantages for the child of the options for thecare of the child; and19 At [40].20 At [42].21 Care of Children Act 2004, s 133(1) and (4A).22 Section 133(1) definition of "psychological report".(g) any matter that the court specifies under subsection (5)(b)(ii).[21] Importantly, under s 133(6), the court may only direct the preparation of areport if six cumulative elements are satisfied. They are:(a) that the court is satisfied that the information that the psychologicalreport will provide is essential for the proper disposition of theapplication; and(b) the court is satisfied that the psychological report is the best source ofthe information, having regard to the quality, timeliness, and cost ofother sources; and(c) the court is satisfied that the proceedings will not be unduly delayed bythe time taken to prepare the psychological report; and(d) the court is satisfied that any delay in the proceedings will not have anunacceptable effect on the child; and(e) the court does not seek the psychological report solely or primarily toascertain the child's wishes.[22] Finally, if the court is entitled to obtain a psychological report, and eitherknows of the parties' wishes on the matter or can speedily ascertain them, it must haveregard to those wishes before deciding whether or not to obtain the report.23Tests on appeal[23] This is a general appeal, not an appeal from the exercise of a discretion.24 Theprinciples articulated in Austin, Nichols & Co Inc v Stichting Lodestar thereforeapply.25 This Court is to reach its own view on the merits of the appeal, but theappellant has the onus of satisfying the Court that the decision under appeal is wrong23 Section 133(7).24 Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [33].25 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.and should be altered. What influence the Family Court's reasoning should have, ifany, is a matter for this Court.26Further context[24] During the appeal, Mr Richmond advised me that precisely one year earlier, hehad contacted the Family Court by email asking whether it was possible for the courtto consider appointing "a child psychologist to talk with [Matthew] and assess thesituation further". At the time, Ms Monk indicated that she thought the court wouldnot appoint a psychologist "at this point in the proceedings".[25] However, lawyer for the child's position clearly changed subsequently, aftershe interviewed Matthew on 15 June 2022. Following that meeting, she reported tothe Family Court and suggested that a s 133 report would be appropriate.[26] Judge Blake dealt with the submission in a Minute of 18 July 2022. Shedeclined to order a report noting:27Ms Monk in her report suggested a s 133 report. This suggestion was not madelightly, given [Matthew's] age and the likely delay in having the reportconcluded. It is clear that if a s 133 report is obtained, it is likely that by thetime that report was completed and a hearing date allocated, it would be closeto [Matthew's] 16th birthday, if not after. I have considered whether or not as 133 report is essential. I have concluded that it is not essential. I note thatthe s 133 report was not supported by [Matthew's] parents.[27] At the hearing before me Ms Monk confirmed, following enquiries of theFamily Court co-ordinator, that if a s 133 report were ordered within two weeks of theappeal hearing, a report is likely to be available by July or August of this year.[28] Finally, in an affidavit in support of her application for a stay, Ms Shirleydeposed that Matthew's reaction to the parenting order of the Family Court wasunfavourable. The evidence indicates that Matthew sought assistance from Youth Linebecause of the distress he felt at the prospect of returning to his father's care. Theseconcerns were supported by an affidavit from a Police constable who had dealt withMatthew in her capacity as a youth aid officer. She said that she became concerned26 Kacem v Bashir, above n 24, at [31].27 Richmond v Shirley FC Napier FAM-2008-20-476, 18 July 2022 (Minute of Judge Blake) at [5].about Matthew as a result of the "difficult" relationship with his father. She said thatMatthew had trouble communicating with her, and Mr Richmond did not appear tounderstand Matthew's difficulties. The combination of these factors has created asituation where she is concerned for Matthew's mental health. The Constable alsonoted the distress Matthew would feel if forced to live with his father.[29] When the appeal was first called in the High Court, Thomas J stayed theFamily Court's orders and directed the appeal be given urgency.28Mr Richmond's submissions on appeal[30] Although a year ago Mr Richmond supported the preparation of apsychological report, his position at the hearing was that he no longer does given thesignificant delay encountered, the absence of contact he has had with his son for aconsiderable period, and the parenting order made in his favour by the Family Court.He highlighted that when the allegation of assault originally surfaced andMr Richmond's regular care came to an end, Matthew was nevertheless willing tocontinue with contact, but that his view changed a few months later. Mr Richmondconsiders that Matthew is easily manipulated and this might explain his change inattitude.[31] Mr Richmond also highlighted the importance of maintaining contact betweenMatthew and his paternal family. Given these reasons, Mr Richmond's view was thatthe Family Court reached the correct decision and that the parenting orders should notbe disturbed.Was the Family Court wrong not to order a report under s 133?[32] As the outline above reveals, on two occasions the Family Court determinedthat it was not essential to direct the preparation of psychological report for Matthew.The background also reveals that at various times during the proceedings both partiesand counsel for the child have supported the preparation of a report.28 Shirley v Richmond (Minute of Thomas J) HC Wellington CIV-2022-441-85, 14 February 2023.[33] Despite Mr Richmond's understandable frustrations and the upset the lack ofcontact with his son has caused him, I have come to the clear view that a psychologicalreport is essential and that its absence was material to the parenting orders made in theCourt below. In reaching this view, I have the advantage of additional evidence whichwas not available to the Family Court judges.[34] The primary reason advanced by Judge Druce for declining to order apsychological report was the view of the impact of further delay in re-establishingcontact between Matthew and his father. But as the intervening four months havedemonstrated, despite the Family Court's order, contact has not been re-established.On the contrary, the requirement of the order for Matthew to resume unsupervisedcontact with his father has caused the child distress. The evidence satisfies me thatthere is a real risk of harm both to Matthew's mental well-being and the well-being ofhis father and his family, should contact be compelled under warrant. I am satisfiedthat compelled contact would not be in Matthew's best interests.[35] While the allegation of assault that led to the current appeal has been finallydetermined in the Family Court and is rightly not subject to challenge on appeal, thereal difficulty is Matthew's attitude towards his father, and the lack of guidance aboutits causes, and how to address them.[36] Having considered the evidence I am satisfied that it was an error for theFamily Court to conclude that a psychological report was not essential before makingfinal parenting orders. Matthew has complex needs and, for whatever reason, he hasnot taken well the prospect of renewed contact with his father. Rather than speculatingon the causes that might have led Matthew to arrive at his current view, I consider itis in his best interests to be provided with the necessary expert support to restore therelationship he previously enjoyed with his father. To understand the factors that haveled Matthew into a "resist/refuse" relationship, a psychological report is required. Thereport will guide the parties and the Court to determine what the best solution orsolutions may be. This will also require further grace from Mr Richmond, and anacknowledgement by Ms Shirley that, whatever her own views and feelings aboutMr Richmond, it is in Matthew's best interests to have a relationship with his father,and that she has a legal obligation to facilitate and support Matthew's father having arole in Matthew's life.[37] Turning to the s 133(6) criteria:(a) I am satisfied that the information a psychological report will provideis essential for the proper disposition of the application for finalparenting orders. In particular, it is very clear both from the FamilyCourt judgment and from Matthew's subsequent response to it that theprospect of returning to his father's care has caused him significantdistress. As Judge Druce noted, a "resist/refuse" relationship hasdeveloped in that Matthew is strongly opposed to a return tounsupervised contact with his father. A psychological report willprovide expert guidance on how a difficult relationship has come aboutand mechanisms to address Matthew's resistance to contact with hisfather.(b) A psychological report is the best source of the information needed,having regard to the quality, timeliness and cost of other sources. Thisis especially so given it is acknowledged Matthew has particular needsand there has been a level of previous—but now historical—expertreporting on subjects that would be canvassed in a psychological report.(c) While there will inevitably be further delay occasioned, it seems theonly viable pathway by which to support a meaningful relationshipbetween Matthew and his father is with the assistance of a psychologist.(d) I am also satisfied that the delay will not have an unacceptable effecton the child, given that, as matters currently stand, Matthew is simplyunwilling to have any contact with his father. The continuing absenceof contact is not in Matthew's best interests, but I am also clearlysatisfied that enforced contact will do more harm than good.(e) Finally, the report is not required solely or primarily to ascertain thechild's wishes. His wishes have been clearly made known through hiscounsel and in the evidence provided on appeal.[38] All parties and counsel for the child agree that in the current complex andchallenging circumstances, a pathway is needed to provide a safe mechanism tostrengthen the relationship between Matthew and Mr Richmond. While Mr Richmondopposed the appeal on the basis that time had moved on, and that he needed to havecontact with his son without further significant delay, it was also clear to me that heunderstood the need to ensure that contact was re-established safely and in a mannerwhich restored the relationship rather than created greater strain.Conclusion and result[39] For these reasons, I was satisfied that the appeal from the parenting ordersshould be allowed. I made the following orders:(a) The preparation of a psychological report under s 133(5) of the Care ofChildren Act. As the parties have been unable to agree on the form ofbrief as directed, the relevant brief is set out in the appendix to thisjudgment.(b) Lawyer for the child was directed to liaise with the Registrar of theFamily Court as soon as possible to determine whether a fixture in lateAugust or early September 2023 could be secured notwithstanding thepsychological report will not be available for some months. I directcounsel to advise whether a fixture can be secured in the Family Courtby 26 April 2023 (if further time is required to answer that question,counsel should indicate when an answer is likely to be available).(c) I also directed lawyer for the child to liaise with the parties and report,also by 26 April, on whether a viable interim care or contactarrangement could be put in place in order to ensure there was ongoingcontact between Matthew and Mr Richmond pending a re-hearing ofthe parenting orders. I also noted that I may be minded to set down ashort hearing if the parties were not able to reach agreement.(d) I have addressed the appeal in an interim judgment because if theFamily Court is unable to allocate a fixture shortly after thepsychological report is anticipated to become available, I may beminded to determine the parenting orders as part of the appeal, ratherthan remit the matter back to the Family Court for reconsideration. Theprimary factor here is the risk of further significant delay in rekindlingunsupervised contact between Mr Richmond and Matthew.(e) Finally, given that the parenting orders placing Matthew with his fatherhave now been set aside, I was also satisfied that the justification forthe s 77 order preventing Matthew's removal from New Zealand untilthe age of 18 had fallen away and set it aside. Indeed, the Judgeacknowledged Ms Shirley's submission that she has "carefullycomplied with her guardianship obligations" when previously planningoverseas travel with Matthew.29 And, as noted, Brazil is a signatory tothe Hague Convention. In the circumstances, I considered that the finalorder under s 77 was no longer appropriate given I had allowed theappeal and set aside the final parenting orders. The s 77 order made bythe Family Court was also set aside accordingly. Nevertheless, topreserve the position, I made an interim order under s 77 preventingMatthew's removal from New Zealand until further order of the Court.[40] I have reserved leave to the parties to apply. I confirm that this judgment issueson an interim basis subject to final disposition of the appeal.29 At [42].Appendix – brief to psychologist[41] Pursuant to s 133(5)(b)(i) and (ii) of the Care of Children Act 2004, I direct thepreparation of a psychological report addressing the following matters:(a) Assess and report on Matthew's relationship with each party, including,if appropriate, Matthew's attachment to each parent.(b) Assess and report on the effect or likely effect on Matthew (includinghis views) of the parties' ability or otherwise to cooperate in theparenting of the child.(c) Assess and report on the advantages and disadvantages for Matthew ofthe options for the care of the child.(d) Assess and report on Matthew's views about his contact with his fatherincluding whether there has been any influence on those views.(e) Assess and report specifically on the impact on Matthew of his care andcontact occurring in a way that is contrary to his views.(f) Recommend possible pathways (including the use of a qualified expertsuch as a psychologist), by which unsupervised contact can be safelyre-established between Matthew and his father, together withrecommendations for overcoming any "resist/refuse" relationship thatmay exist.Isac JSolicitors:John McDowell, Solicitor, Napier for AppellantBay Legal, Hastings for the Child