SHIRLEY v RICHMOND [2023] NZHC 774

SHIRLEY v RICHMOND [2023] NZHC 774 [6 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 774UNDER The Care of Children's 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: 6 April 2023RESULTS JUDGMENT OF ISAC J[1] Ms Shirley brings an urgent appeal from a decision of the Family Court of30 November 2022 in which Judge Druce made a final parenting order for the parties'son, Matthew.11 Shirley v Richmond [2022] NZFC 12146 at [34(d)].[2] Ms Shirley's submission, supported by Matthew's lawyer, Ms Monk, is thatthe Judge was wrong to make final parenting orders without first obtaining apsychological report under s 133(5) of the Care of Children Act 2004. Counsel pointedto Matthew's reaction to the Family Court's orders, which has been concerning.Matthew has refused to have contact with his father despite the parenting order, andon 14 February 2023, Thomas J granted a stay in relation to that aspect of the FamilyCourt's judgment.2[3] In support of the appeal is evidence clearly indicating that enforcement of theFamily Court's order is likely to cause Matthew, at the very least, significant distress.Given the paramount consideration in s 4 of the Act, I have concluded that it isnecessary to allow the appeal and direct preparation of a report under s 133(5). Giventhe importance of the issue to the parties and Matthew, and the delay alreadyoccasioned in the proceeding, I am providing the result of the appeal so the parties areaware of the outcome, and so that the necessary arrangements can be made to addressthe underlying issues that exist. I will provide my reasons separately.Result and orders[4] The appeal is allowed. The parenting orders made in the Family Court'sjudgment of 30 November 2022 are set aside.[5] The final order of the Family Court under s 77 of the Care of Children Act isalso set aside. Instead, I make an interim order under s 77 preventing Matthew'sremoval from the country until further order. I reserve leave to the parties to apply.[6] In all other respects, the Family Court's findings are undisturbed.[7] I direct preparation of a psychologist's report under s 133(5) of the Care ofChildren Act. The parties are to provide a final and agreed form of the brief based onthe draft prepared by counsel for the child by 4.00 pm on 13 April 2023. If the formof brief has not been settled by agreement, I will settle it. The brief should include2 Shirley v Richmond (Minute of Thomas J) HC Wellington CIV-2022-441-85, 14 February 2023.recommendations on approaches to Matthew's apparent opposition to care or contactwith his father and what support might be required in that regard.3[8] Further avoidable delay in the determination of the parenting orders is not inMatthew's best interests. Given the s 133 report is likely to be available by August,I direct counsel for the child to liaise with the Family Court registrar as soon aspossible to see if a fixture in late August or early September 2023 can be securednotwithstanding that the psychologist's report will not be available when the fixture isset down. If a fixture cannot be allocated until the report is available, I may be mindedto deal with the parenting orders rather than direct reconsideration of the question bythe Family Court. This decision is therefore interim only.[9] The lack of any contact between Matthew and his father and Matthew'spaternal family is concerning. It is unlikely to be in Matthew's best interests that thehiatus continues any longer. I would ask counsel for Matthew to liaise with her clientand his parents to explore options which might involve contact and/or care in anenvironment and in a manner that is unlikely to cause difficulty for Matthew. Oneoption—without prescription—might be planned visits to Matthew's paternalgrandmother's house at which Mr Richmond and Matthew could (initially or in time)share each other's company for a period. It would be helpful if counsel could providea report to the Court on viable interim care and contact options by 26 April at the latest.I may be minded to convene a short hearing in late April to address the position ifsatisfactory interim arrangements have not been agreed or implemented, given thelong period without contact already and the effect of that on Matthew's relationshipwith his father.[10] I would strongly encourage Mr Richmond to remain open to receivingassistance from professionals (including psychologists) to strengthen his relationshipwith Matthew. For whatever reason, a difficulty in the relationship exists. The moreproductive course is to focus on the future and solutions rather than on the past andthe reasons for the current situation. Equally, it is important for Ms Shirley to3 Under s 133(5)(b)(ii) and (1)(g).acknowledge the importance for Matthew that he has a relationship with his father,and her obligation as a guardian to ensure that occurs.4[11] Leave to apply is reserved.Isac JSolicitors:John McDowell, Napier for AppellantBay Legal, Hastings for the Child4 Care of Children Act 2004, s 5(e).