Palmer v Holm [2014] NZHC 2268 (18 September 2014)

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NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO

IN THE MATTER	of an appeal against a decision of Judge S J Maude made in the North Shore Family Court on 23 December 2013
BETWEEN	L PALMER Appellant
AND	C P HOLM Respondent

Hearing:	21 May 2014
Appearances:	A E Ashmore for the Appellant S D Cummings for the Respondent N F Keys Lawyer for the Child
_Judgment:	_{18 September 2014}

This judgment is delivered by me on 18 September 2014 at 3 pm pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

Introduction ..........................................................................................................[1] Background...........................................................................................................[2] The decision under appeal ................................................................................. [11] Grounds of appeal ..............................................................................................[19] Approach on appeal ...........................................................................................[20]

set out in s 5 of the Act? .....................................................................................[21]

Second ground – alleged factual errors ............................................................[32] Third ground – failure to take account of material matters ..........................[56] Fourth ground – took into account irrelevant matters ...................................[69] Fifth ground – undue weight on Ms Holm’s emotional state .........................[75]

of the continuing alienation by allowing Martin to remain with Ms Holm ..[87]

principles as a result of flawed methodology ...................................................[88]

best interests........................................................................................................[89]

Result ...................................................................................................................[94]

[1] Mr Palmer¹appeals against a decision of Judge Maude given in the Family Court at North Shore²restricting Mr Palmer’s contact with his alienated son, Martin, now aged nine years, as follows: ³

(a) Mr Palmer may write to Martin in the last week of each month providing information as to his whereabouts and matters relating to his life that would be of interest to Martin at his age.

30 minutes, or until such time as Martin chooses to end the call, on the first Saturday of each second month, on Martin’s birthday and on Christmas Day.

[2] Mr Palmer and Ms Holm’s relationship spanned approximately 16 years but they have lived apart for significant periods during that time. Martin, their only child, was born in March 2005, while they were living apart. The first time Mr Palmer saw Martin was in late June 2006, when Martin was aged 15 months.⁴

[3] Over the next two years until they finally separated, which the Judge found was in July 2008, the parties lived together during several periods of attempted reconciliation. There is a dispute about the timing and duration of these but the Judge described the amount of time that Mr Palmer spent with Martin as “limited”. The Judge said that even on the basis of Mr Palmer’s own evidence, there were only

_{three periods during which he lived with Ms Holm and Martin, two of four
months}

¹This is not the appellant’s real name. Pseudonyms have been used for the appellant, the respondent and their son throughout this judgment to comply with ss 11B to 11D of the Family Courts Act 1980 because the judgment refers to a person under the age of 18 years.

duration, and another of two weeks.⁵The Judge also found that Mr Palmer cared for

Mr Palmer could have with Martin and contact was relatively limited as a result. On

15 June 2009, the Family Court made an interim order allowing Mr Palmer to have supervised contact with Martin for two and a half hours per week.

[5] Further interim orders were made on 14 July 2009 directing supervised contact for three hours twice a week between Monday and Friday. However, these visits ceased after only two weeks because Ms Holm objected to the supervisor.

[6] On 1 September 2009, consent orders were made extending the existing orders by allowing further contact of five hours duration every fourth Saturday. These contact orders were modified on 16 February 2010 in preparation for Martin commencing school in March 2010.

[7] Following a substantive hearing in May 2010, the Family Court made a further interim order placing Martin under the guardianship of the Court. By this time Martin was resisting contact with Mr Palmer to such an extent that it was becoming increasingly difficult to achieve. The Court therefore made further contact dependent upon Martin being willing to accompany the contact supervisor to a contact visit within 30 minutes of the supervisor’s arrival.

[8] The Family Court’s substantive decision following the May hearing was released on 20 August 2010. The Court found that Martin was alienated from his father. It also found that this alienation was not justified by Martin’s life experiences of his father and was primarily the result of Ms Holm’s behaviour. The Court directed that Martin remain under the guardianship of the Court and it made a final parenting order granting Ms Holm day to day care of him. The Court made further orders allowing Mr Palmer to have continued supervised contact with Martin on the basis that these arrangements would be reviewed after six months.

[9] Despite the Court’s orders, contact during the period from 27 June 2010 to

11 April 2012 was sporadic. The Judge found that only seven of the 49 scheduled contact visits took place. There was no face to face contact after December 2011.

[10] For various reasons, the six month review hearing directed by the Family Court in August 2010 did not occur until December 2013. The present appeal is from the judgment issued following that review.

[11] The Judge noted that the parties had been unable to cooperate to ensure that Martin had an ongoing relationship with his father. The Judge summarised the nature and extent of contact between Martin and Mr Palmer since the parties separated and the reasons why the contact ordered by the Court had not occurred. These included parental interference with the supervisors provided by Child Youth and Family Service, difficulties arranging supervisors, and Martin’s refusals to participate.

(a) Mr Palmer sought an order placing Martin in his day to day care. He proposed to support this transfer with a programme to be provided by Professor Richard Warshak, an expert based in the United States who specialises in assisting children to re-establish their relationship with an alienated parent.

(b) Alternatively, if the Court declined to place Martin in his day to day care, Mr Palmer sought specified contact with Martin on an unsupervised basis.

(a) Ms Holm sought a continuation of the existing parenting order granting her day to day care of Martin.

(b) Ms Holm opposed any face to face contact between Mr Palmer and Martin. She proposed that contact be limited to bi-monthly letters or cards, bi-monthly telephone calls in alternate months, and telephone calls on Christmas Day and on Martin’s birthday.

[13] The Judge quickly discounted Mr Palmer’s proposal for unsupervised face to face contact. He considered that this was “impossible” because of Martin’s strong opposition to such contact and the extent of the ongoing conflict between the parties.⁷The Judge stated:⁸

It has become clear that [Martin’s] parents current states of mind do not allow for physical contact whether supervised or not. [Martin’s] alienated state means that as he has in the past he will sabotage whatever contact the Court orders fuelling ongoing litigation.

[14] This left the Judge with the options of removing Martin from his mother’s care and placing him with Mr Palmer, or continuing the existing care arrangements and leaving Mr Palmer with very limited contact. The Judge described these options as “stark”. ⁹

[15] The Judge recorded the views expressed by the court appointed psychologist Dr Louise Smith that, developmentally and socially, Martin had done remarkably well in Ms Holm’s care despite the damaged relationship with his father but that the real test would come when Martin reached adolescence. The Judge accepted Dr Smith’s description of Ms Holm as Martin’s “anchor” and “the centrepiece of his life” and her view that Martin would struggle to cope with the considerable distress he would suffer if a change of care was ordered.

[16] The Judge doubted Mr Palmer’s ability to provide the care Martin needs, especially given Martin’s strong resistance to having any sort of a relationship with him. The Judge also noted that Mr Palmer had little foundation upon which to build a relationship because he had spent so little time with Martin during his life and had

[17] While the Judge acknowledged that the aim of Professor Warshak’s programme was to achieve the ideal of parallel parenting, he considered that this had little prospect of success in this case because of the likely ongoing hostility between the parties. The Judge was also concerned about the lack of empirical research to support Professor Warshak’s proposed programme and that it could prove to be little more than an experiment at Martin’s expense with potentially disastrous

[18] The Judge concluded that a change in the day to day care for Martin would be contrary to Martin’s best interests:¹¹

As however I have already made clear carefully weighing the evidence as to the risk of greater harm for Martin involving removal from his anchor, removal from his school where he is performing successfully and placement with a father who has little relationship with him yet built and significant question marks about his ability to care for a defiant child cannot be a choice for Martin that the Court can make.

[19] Mr Palmer raises the following grounds of appeal in his amended notice of appeal:

(a) The Judge failed to evaluate properly the advantages and disadvantages of the three available options contrary to s 5 of the Care of Children Act 2004 and the approach affirmed by the Supreme Court in Kacem v Bashir.¹²

(b) The Judge made a number of material factual errors in reaching his conclusion as to what was in Martin’s best interests. In particular, Mr Palmer contends that the Judge:

(ii) placed insufficient weight on the therapeutic value of Professor Warshak’s proposed programme and regarded this option as involving no more than a change of care; and

(iii) incorrectly thought that Mr Palmer had applied to the Court for an order permitting him to take Martin to the United States when no such application was made.

	(iii)	the fact that supervised contact with Martin had failed partly because of problems attributable to Child Youth and Family;
		and
	(iv)	the views expressed by Glen Stenhouse, a parenting assessor who had observed Mr Palmer interact with Martin.
(d)	The Mr P	Judge took irrelevant matters into account in determining almer’s ability to care for Martin. In particular, the Judge:
	(i)	took into account an alleged estrangement between Mr Palmer and his father and disregarded the reasons for it; and
	(ii)	took into account the allegation made by Mr Palmer’s father that Mr Palmer was alienated from his mother.

(f) Failed to give sufficient weight to the negative impact on Martin of continuing alienation through maintaining the status quo. (This is a restatement of ground (c)(i)).

(g) Failed to apply the principles set out in s 5 of the Act. (This is a restatement of ground (a)).

(i) underestimated the ongoing harm to Martin caused by the present care arrangements; (a restatement of ground (c)(i))

(v) the cumulative effect of these errors was that the Judge failed to carry out a proper analysis of what was in Martin’s best interests.

[20] Mr Palmer is entitled to the opinion of this Court, even though the judgment appealed from involves matters of assessment of fact and degree upon which reasonable minds might differ. However, to succeed with the appeal, Mr Palmer

¹³Austin Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141;

First ground – did the Judge correctly apply the principles set out in s 5 of the

[21] Section 4 of the Act provides that the welfare and best interests of a child in his or her particular circumstances must be the paramount consideration in any proceeding concerning the day to day care for, or contact with, that child. The principles set out in s 5 of the Act must be taken into account in making this assessment.

[22] Section 5 was amended by the Family Matters Act 2013 which came into force on 31 March 2014, after the Family Court decision. The principles that now must be taken into account under s 5 are:

(a) a child’s safety must be protected and, in particular, a child must be protected from all forms of violence (as defined in section 3(2) to (5) of the Domestic Violence Act 1995) from all persons, including members of the child’s family, family group, whanau, hapu, and iwi.

(b) a child’s care, development, and upbringing should be primarily the responsibility of his or her parents and guardians:

(c) a child’s care, development and upbringing should be facilitated by ongoing consultation and co-operation between his or her parents, guardians, and any other person having a role in his or her care under a parenting or guardianship order:

(d) a child should have continuity in his or her care, development and upbringing:

(e) a child should continue to have a relationship with both of his or her parents, and that a child’s relationship with his or her family group, whanau, hapu, or iwi should be preserved and strengthened:

(f) a child’s identity (including, without limitation, his or her culture, language, and religious denomination and practice) shall be preserved and strengthened.

[23] The amendment to s 5 brought about subtle changes. The principles were re- ordered and there were some changes in emphasis but the basic principles remain the same. The most relevant changes are in ss 5(d) and (e) which replaced ss 5(b) and (d) of the Act before it was amended. These subsections formerly provided:

(b) there should be continuity in arrangements for the child’s care, development and upbringing and the child’s relationships with his or her family, family group, whanau, hapu, or iwi, should be stable and ongoing (in particular, the child should have continuing relationships with both of his or her parents):

(d) relationships between the child and members of his or her family, family group, whanau, hapu, or iwi should be preserved and strengthened, and those members should be encouraged to participate in the child’s care, development, and upbringing.

[24] None of the principles in s 5 of the Act has precedence over any other. In Kacem v Bashir the Supreme Court confirmed, as is clear from s 4, that all relevant principles must be weighed in the particular circumstances of a given case when determining the care or contact arrangements that will best serve the child’s welfare and interests. There is no presumption that the status quo will meet this objective.

[25] Mr Ashmore emphasises that none of the options presented to the Judge were without risk to Martin. The Judge’s task was to evaluate each of the three options by considering all relevant circumstances and having regard to the principles set out in s 5. Having carried out this evaluation, the Judge was required to determine which option was likely to be in Martin’s best interests, recognising that there were disadvantages to each. Mr Ashmore argues that the Judge employed a flawed methodology by eliminating the two options proposed by Mr Palmer without carefully evaluating these options with reference to the principles set out in s 5 and comparing them with the third option which was adopted. Mr Ashmore contends that by following this approach the selection was determined by the order in which the options were considered, rather than by which was best for Martin overall. Having dismissed the options proposed by Mr Palmer, Mr Ashmore submits that the Judge was left only with the option proposed by Ms Holm, which he was therefore driven to accept.

[26] The Judge recognised that, to the extent reasonably possible, any orders for care and contact should meet the principle in s 5(e) that a child should continue to have a relationship with both of his or her parents.¹⁴However, all relevant circumstances must be considered, including the efficacy of any proposed order. In

_{this case, despite the various orders made in the Family Court from May
2009, it}

proved not possible to maintain a regime facilitating regular face to face contact between Mr Palmer and Martin. Of the 49 scheduled contact visits between 27 June

2010 and 11 April 2012, only seven proceeded¹⁵and there has been no face to face

contact since December 2011. Although some criticisms were made of the role of Child Youth and Family in contributing to this outcome, it is plain that the biggest obstacle was Martin’s persistent refusal to participate.

[27] In these circumstances, it would serve no useful purpose to make yet more orders for face to face contact. There is nothing to indicate that this would achieve any better outcome. I consider that the Judge was correct in his conclusion that more significant intervention would be required to enable a relationship to be established between Mr Palmer and Martin. Indeed, this was the underlying premise of Mr Palmer’s proposal for a reversal of care.

[28] Professor Warshak also counselled against a continuation of the types of orders that had already been tried unsuccessfully in this case because he did not consider that they had any realistic prospect of succeeding. He explained:¹⁶

This approach [child to remain with favoured parent coupled with interventions to resolve the alienation from the rejected parent] is unlikely to be effective if the primary parent sabotages the treatment or continues to promote the very environment which contributed in large measure to the alienation in the first place. Many studies in this area conclude that when alienation is severe and the children remain exposed to the favoured parent’s influence and live apart from the rejected parent, interventions have little chance of success. The majority of academic studies maintain that therapy as a primary intervention simply does not work in severe and even some moderate alienation cases.

In my view it is not enough for the Court merely to exhort estranged children who live with their favoured parent to spend time with their rejected parent and to treat that parent with respect and affection. If the court believes that their negative attitudes toward a parent are unreasonable and influenced by their identification with others’ negative attitudes, the children need a combination of sufficient time with the rejected parent, reduced contact with those whose negative attitudes have influence over the children (including relatives and friends of the favoured parent), renewed contact with the favoured parent to occur contingent upon improvement in their treatment of the rejected parent, skilled intervention for the family, and a strong message from the court about the consequences for disobeying court orders.

¹⁵Mr Palmer asserts, contrary to the Judge’s finding, that the correct number is nine but the

[29] Dr Smith was also of the opinion that further orders designed to facilitate ongoing contact between Mr Palmer and Martin were unlikely to deliver improved results. In her third report, dated 2 June 2011, she stated: ¹⁷

The real problem is not the structure of the contact arrangements per se (ie duration, frequency, presence of supervision), but the interparental dynamics, the lack of support for the father-child relationship by [Ms Holm], the history of [Martin’s] relationship with his father, and deficits in [Mr Palmer’s] parenting and relationship building skills. Hence, changing the structure on its own could not be expected to achieve any meaningful change, and in one sense we are simply ‘tinkering on the margins’ around significant negative psychological dynamics which are the true drivers underpinning [Martin’s] presentation.

... Suffice to say, that given the severity of [Martin’s] presentation, the task of trying to persuade him to visit the rejected [parent] will be problematic no matter the skill level of the supervisor. Hiring a qualified psychologist to do the task is not guaranteed to be more effective, nor is it sustainable.

Sadly, despite the multiple interventions which have been put in place across a period of two years, contact between [Martin] and his father is failing to enhance their relationship, and the writer concurs with Mr Stenhouse’s opinion that the relationship is “practically nonexistent”. The Court acted to provide [Martin’s] parents with an opportunity to change the dynamics of what is occurring, but the data available indicates insufficient change has occurred. The opinion from the 2010 s 133 report (paragraph 43) is now borne out in reality, namely “sustained improvements in the relationship between [Martin] and his father would be difficult without drastic steps such as removal of [Martin] from his mother’s day to day care, with subsequent supervised contact with her”...

[30] In her fourth and final report dated 17 May 2013, Dr Smith recommended against the reintroduction of face to face contact:¹⁸

[Martin] did not want to start seeing his father again and he denied any curiosity about him. When asked would he see his Dad when he was older, he was not immediately dismissive of the idea and stopped and thought about replying “maybe, probably wouldn’t want to”. Whilst, there is no sense in which [Martin] has developed the ability to have [a] relationship with his father, he does present as being less intense about the issue and he could speak about him without his behaviour becoming disorganised. It is noted though that the writer is not suggesting that because [Martin’s] presentation is more balanced then this would be an appropriate time to re- introduce contact. In the writer’s opinion the data indicates that the issues

and dynamics in the adult sphere continue unchanged and it is these dynamics that will assert themselves impacting [Martin] again, if attempts at face to face contact resume.

[31] In the light of this evidence and the failure of prior contact orders to achieve their intended objective, I agree with the Judge that further orders requiring similar such contact, supervised or unsupervised, would be extremely unlikely to succeed. The attempted implementation of any such orders would also carry a high risk of creating further hostility and dispute, contrary to Martin’s best interests and welfare. It would have made no difference in what order the Judge chose to consider this option because it was clearly not viable. Even Mr Palmer did not favour this option. I consider that the Judge was right to reject it.

[32] Mr Ashmore submits that the Judge made three factual errors which cumulatively had a material effect on his decision to reject the options promoted by Mr Palmer. The first concerns the amount of time Mr Palmer has spent with Martin. This was relevant to the Judge’s assessment of the relationship between Mr Palmer and Martin.

[136] [Mr Palmer] had no contact with [Martin] until he was 15 months of age and thereafter limited time spent with him involving on his evidence (not accepted by [Ms Holm]) two periods of four months when he and [Ms Holm] and [Martin] were living together and another period of two weeks.

[137] While it is accepted that [Ms Holm] allowed [Mr Palmer] to care individually for [Martin] for two separate periods of four days and one week, nevertheless in the context of now a defiant son not wanting to have contact with him and no contact having occurred since November 2011 in my view the base of relationship for the Court to rely upon if transferring care of [Martin] to his father even taking into account the four day workshop proposed by Professor Warshak is minimal.

[34] Mr Ashmore contends that the Judge overlooked Mr Palmer’s evidence that he had spent 175 days with Martin in 2007 and 210 days in 2008 and his further evidence that he had sole care of Martin for seven days in December 2006 and eight

days in November 2008. In other words, on Mr Palmer’s evidence, he spent five and a half months with Martin in 2007 and seven months in 2008, a total of 12 and a half months, compared with eight and a half months as stated by the Judge. Further, Mr Palmer’s evidence was that he had sole care of Martin during the period

[35] As noted, Ms Holm strongly disputed this evidence. She said that Mr Palmer significantly overstated the amount of time they had spent together with Martin:¹⁹

This is the ongoing false claim which [Mr Palmer] persists in making because he has been successful in manipulating the Court related professionals to believe we were together. He then falsely claims that all the disjointed periods were in fact consolidated thus giving a much distorted impression of the total duration of the relationship.

[36] The Judge did not find it necessary to determine the precise duration of each period of cohabitation from 2006 to 2008. Regardless of whether the parties lived together during this period for a total of eight and a half months or 12 and half months, the reality was that by December 2013, when the Judge was dealing with the matter, the relationship between Mr Palmer and Martin was minimal. This was confirmed by Mr Stenhouse, the child psychologist who assessed Mr Palmer’s parenting skills. In his principal report, dated 10 March 2011, Mr Stenhouse

[Martin’s] relationship with his father seems to be practically non-existent at the moment. The priority is therefore not parenting, but trying to build a relationship between the two.

[37] I consider that the Judge was correct to conclude that by December 2013, the relationship was minimal, there having been no face to face contact since December 2011 and only limited contact prior to that. It also needs to be borne in mind that the Family Court had determined that Martin was alienated from Mr Palmer by August 2010.

[38] I conclude that the Judge did not make any material factual error concerning the length of time the parties had lived together following Martin’s birth. The Judge did not purport to determine this disputed issue and did not need to.

[39] The second alleged material factual error is that the Judge placed insufficient emphasis on the therapeutic benefits for Martin of the programme proposed by Professor Warshak. Mr Ashmore submits that this is evident from the fact that the Judge referred to this proposal as a “change of care”. Mr Ashmore contends that the Judge erroneously relied on literature relating to a simple change of care and did not adequately consider the particular benefits of Professor Warshak’s programme.

[40] Professor Warshak is an eminent psychologist whose research and experience over the past 30 years has been focused on the interaction of children in the legal process, including the range and effectiveness of specific legal interventions adopted in North America in cases where a child has been alienated from a parent. He has published extensively in this area and is currently a professor of psychology at the University of Texas Southwestern Medical Center.

[41] Professor Warshak described the four most common approaches adopted by courts in North America in dealing with alienated children. These are: leaving the child with the favoured parent, coupled with efforts to resolve the problems; placing the child with the rejected parent; placing the child with neither parent; and allowing the child’s preference to dictate the decision. He then discussed the circumstances in which each of these options would be most likely to succeed and the risks associated with each.

[42] The first option, leaving the child with the favoured parent coupled with initiatives to resolve the alienation, is effectively the approach adopted by the Family Court at the outset in this case. Professor Warshak stated that this option is likely to be effective in the early stages of alienation, in mild cases of alienation, where counselling has not yet been attempted, and when the favoured parent is able and willing to ensure the child’s compliance and cooperation with Court orders. This indicates that it was entirely appropriate for the Family Court to pursue this approach initially. However, these indicators of success are no longer present and the

continued pursuit of this option is likely to be futile, as confirmed by Professor Warshak.²¹One of the main risks identified by Professor Warshak of pursuing this option is that, if it is unsuccessful, it delays effective treatment and can sometimes prevent it.²²

[43] Professor Warshak referred to academic research and clinical experience showing the harmful effects of allowing a child to become estranged from a parent. He compared this to other forms of physical or emotional abuse and suggested that the Court should adopt the same protective stance in relation to it. He considered that courts sometimes make the mistake of adopting what appears to be an easier short term course by downplaying or disregarding the long term harm caused by alienation.

[44] Since 2005, Professor Warshak has been involved with a programme called Family Bridges: A Workshop for Troubled and Alienated Parent-Child Relationships. This programme was initially developed 1991to assist in reuniting recovered missing children with their parents. The programme was later developed to assist non- abducted children who are severely and unreasonably alienated from a parent in the context of marriage breakup.

[45] The programme is not suitable for all children who reject a parent and for this reason a number of enrolment prerequisites have been established. In particular, children are not generally accepted into the programme in cases such as the present where the Court finds that the child’s relationship with the rejected parent is severely damaged but that, overall, it is in the child’s best interests to remain with the favoured parent. Similarly, children who will spend only a short period of time with the rejected parent before returning to the home of the favoured parent will generally not be accepted. It is also important to note that the decision to enrol in the course must be made by a parent with the sole authority to make such decisions, not the Court.

(a) assist children to develop and maintain healthy relationships with both parents;

(b) help children avoid being caught in the middle of parental conflict; (c) strengthen children’s critical thinking skills;

(e) help children maintain balanced views and a more realistic perspective of each parent as well as themselves;

(g) strengthen the family’s ability to communicate effectively with each other and to manage conflicts in a productive manner; and

(h) strengthen the parents’ skills in nurturing their children by setting and enforcing appropriate limits and avoiding psychologically intrusive interactions.

[47] Typically, enrolment in the programme will follow a Court order placing the alienated child in the sole care of the rejected parent having found that the rejected parent is better suited to meet the child’s needs. This may be in part because the rejected parent has been able to demonstrate that he or she would be better able to support their child’s need to have a relationship with two parents rather than one. The Court will need to be satisfied that the rejected parent is capable of managing the responsibilities of caring for and supervising the child. Success of the programme requires a temporary cessation of all contact between the child and the favoured parent following completion of the programme, usually for at least three months. This is therefore an enrolment prerequisite. Reintroduction of contact with

the favoured parent is contingent upon the successful repair and maintenance of the relationship with the rejected parent. The ultimate goal is shared parenting.

[48] The programme involves a four day workshop in which the child and the rejected parent participate. It has four distinct phases. The first phase covers basic psychological concepts and is designed to enhance critical thinking. In phase two the psychological concepts covered in phase one are applied to the specific topic of children coping with failed marriages. Phase three is directed to teaching the children how to apply the new concepts to their own situation by working through a series of exercises. The fourth and final phase involves the acquisition and practise of communication and conflict resolution skills.

[49] Following completion of the programme, the child and the rejected parent are encouraged to take a short holiday together. The aim of this is to strengthen the newly restored relationship and entrench the positive attitudes that are expected to have developed during the workshop. A team member is available by telephone during this period to monitor progress and provide further support if necessary.

[50] Professor Warshak said that he or one of his associates would be prepared to come to New Zealand to work with Mr Palmer and Martin in a Family Bridges programme if the Court concluded that Martin should be removed from his mother’s care and placed with Mr Palmer. He said that this could involve the assistance of a qualified practitioner in New Zealand if the Court considered that this was necessary.

[51] Professor Warshak had not met Martin or Ms Holm and had not evaluated the suitability of his programme for them. He was not advocating that Martin should be placed in his programme nor was he advocating any particular outcome. Quite properly, he did not offer any view on the ultimate issue for the Court as to whether Martin’s interests would be best served by removing him from his mother’s care and placing him in the sole care of Mr Palmer, even temporarily. He was not able to make this assessment. He merely identified the available options, including the prospect of enrolment in the Family Bridges programme and the benefits that this could bring.

[52] I reject Mr Ashmore’s submission that the Judge erred in paying little or no attention to the therapeutic component of the programme. The Judge devoted

14 paragraphs of his judgment to summarising the programme. Having read Professor Warshak’s extensive affidavit, including the appendices, and the transcript of his evidence, I can see no error in the Judge’s summary. It is clear that the Judge had a good appreciation of the nature and aims of the programme, its content, the success achieved with it, and the literature to support it. The Judge specifically quoted from Professor Warshak’s evidence concerning the effects that alienation can have on a child’s development and the success of the Family Bridge’s programme in

assisting alienated children to overcome irrational rejection of a parent.²³The Judge

also accurately recorded the circumstances in which the programme is suitable and when it is not. The Judge also noted Professor Warshak’s evidence that the programme has often succeeded even where the rejected parent has suboptimal parenting skills.²⁴

[53] I also reject Mr Ashmore’s submission that the Judge made an error in stating

Professor Warshak was clear in stating to the Court that a prerequisite of entry into his programme was that the Court must determine that a change of day to day care for the particular child concerned was appropriate.

[108] Reflecting my concern about poor judgment displayed by Mr Palmer, I observe that in late November 2012 he made application to the Court to take [Martin] to the United States of America to see his Alzheimer’s suffering mother. His proposal was that he take [Martin] to the United States of America unsupervised.

[135] The unrealistic application to the Court in 2012 to take [Martin] unsupervised to the United States of America leaves me with real reservations about Mr Palmer’s judgment...

[55] It is accepted that Mr Palmer did not apply to the Court for any such order and the Judge was mistaken in thinking he had done so. Rather, Mr Palmer’s

counsel wrote to Ms Holm’s counsel on 26 November 2012 advising that Mr Palmer intended to travel to the United States to visit his mother during the period from

11 December 2012 to 15 January 2013. Mr Palmer’s mother had been suffering from Alzheimers for some time but her condition was rapidly deteriorating. Mr Palmer sought Ms Holm’s agreement to let him take Martin on this visit to allow him “to have some form of interaction with his grandmother and by extension that aspect of his cultural history”. Unsurprisingly, Ms Holm declined this request and Mr Palmer sensibly did not pursue it further. In all of the circumstances, including the fact that Mr Palmer had not had any face to face contact with Martin for

12 months at that stage, this was an ill-judged request. To that extent, the Judge’s concerns about Mr Palmer’s judgment were justified, even though the Judge was wrong in thinking that Mr Palmer had applied to the Court for an order permitting him to take Martin to the United States. This error did not have any material influence on the outcome.

[56] Mr Palmer’s third ground of appeal is that the Judge failed to take four material matters into account in reaching his conclusion.

[57] The first concerns the adverse consequences for Martin of continuing alienation from Mr Palmer. The Judge did not overlook this factor. The Judge quoted from a paper written by Fidler and Bala published in the Family Court Review describing the consequences in adulthood for children who have been alienated from one of their parents as a child:²⁵

Many of these adults suffered from low self-esteem, having internalised the negative characterisation by the alienating parent of their neglected parent. Self-hatred, self-blame and guilt for abandoning younger siblings were noted. 70% disclosed suffering significant episodes of depression, approximately one third of the sample reported having serious problems with drugs and alcohol during adolescence ...

[58] The Judge referred to the risk of “allowing the alienation to go untreated”.²⁶

characterised as a form of emotional abuse that can, in appropriate cases, justify custody reversal.²⁷The Judge recognised that his task was to determine the course that posed the least risk for Martin:

[30] In short it would appear that the court cannot avoid the following task summarised by Fidler and Bala:

Assessors and the Court need to consider carefully what poses the greater risk to a particular child in a particular set of family circumstances, noting the likely short and long term detrimental effects in a distorted reality where the child is not free to be who they are and emotionally autonomous.

[59] It is clear that the Judge was concerned about the risk to Martin of ongoing alienation from his father. Indeed, that is the very risk that the Family Court has sought to address since it first became involved in this case. The suggestion that the Judge overlooked this risk is completely unfounded. The Judge had to balance this risk with the risks associated with removing Martin from his mother’s care and prohibiting contact with her for sufficient time to enable the process discussed by Professor Warshak to run its course.

[60] Mr Palmer’s next complaint concerns the reasons why he disengaged with Dianne Cameron, a psychologist he approached in June 2009 to provide him with parenting advice. Mr Palmer met with Ms Cameron on a number of occasions in

2009 and 2010 but did not continue after that because he was having very little contact with Martin. Because the Judge did not mention Mr Palmer’s reason for not continuing with these sessions, Mr Palmer is concerned that the Judge wrongly inferred that this reflected a lack of interest on his part.

[61] Mr Palmer’s commitment to achieving a meaningful and sustained relationship with Martin cannot be questioned. He has consulted a number of experts to assist him in achieving this objective and has spared no expense or effort in the attempt. He has filed a vast amount of material in the Family Court, including numerous affidavits of his own. The Judge was well aware that the present dispute has been the central focus of both parties since the Family Court proceedings were initiated in 2008. The Judge described them as being “well embedded in the

litigation process”²⁸and “deeply embroiled in the conflict”.²⁹There is no prospect that the Judge would have considered that Mr Palmer stopped consulting Ms Cameron concerning his parenting skills because he had lost interest. On the contrary, the Judge said that he had no doubt that Mr Palmer had a “desperate wish” to have a relationship with Martin.³⁰

[62] The relevance of this evidence was not whether Mr Palmer is a committed parent but rather whether he has the skills necessary to meet the challenges of providing day to day care for Martin in circumstances where Martin is severely alienated from him and extremely resistant to having any contact with him. This is why the Judge summarised the efforts Mr Palmer had made to improve his parenting skills, including his work with Ms Cameron. It is clear that the Judge did not draw any adverse inference from Mr Palmer’s decision not to continue his sessions with Ms Cameron. The Judge did not comment on this and did not need to.

[63] Mr Palmer’s third complaint under this ground of appeal is that the Judge did not take into account that several of the supervised contact visits failed because of problems with Child Youth and Family. In particular, Mr Palmer contends that some of the scheduled meetings did not occur because cars or transport personnel were not available.

[64] The Judge did not analyse why each of the scheduled contact visits did not proceed despite receiving detailed evidence about this from Mr Palmer. The Judge may well have concluded that it was not necessary to do this because, as was common ground, Martin’s strong opposition to having ongoing contact with Mr Palmer was the main reason why so few visits took place. The fact that logistical difficulties at Child Youth and Family played a part in the failure of some visits cannot obscure the fact that a continuation of the existing orders was doomed to fail because of Martin’s entrenched attitude. In these circumstances, I do not consider that there is any substance in Mr Palmer’s complaint that the Judge should have referred in his judgment to the problems attributable to Child Youth and Family as a

[65] Finally, under this ground of appeal, Mr Palmer contends that the Judge failed to take into account the evidence of Mr Stenhouse, the child psychologist who assessed Mr Palmer’s parenting skills. As noted, Mr Stenhouse’s principal report is dated 10 March 2011. This report was based on three meetings with Mr Palmer, observations of Mr Palmer with Martin during the course of two supervised visits, a discussion with Ms Cameron and a review of reports by Ms Cameron and Dr Smith. Mr Stenhouse concluded that Martin’s relationship with Mr Palmer appeared to be “practically non-existent” at the time he prepared this report. For that reason, he suggested that the priority was not parenting, but trying to build a relationship between them.

[66] The Judge took Mr Stenhouse’s evidence into account. The Judge noted Mr Stenhouse’s observation that Mr Palmer’s attempt to interact with Martin had a “very artificial quality” and that there was an “absence of genuine, relaxed interchange” between them. The Judge also referred to Mr Stenhouse’s view that Mr Palmer’s style of interaction with Martin was “an obstacle” to improving their “practically non-existent relationship” and his opinion that the prospect of the

“relationship developing normally and positively” was “very low indeed”.³¹

[67] Mr Stenhouse’s supplementary report dated 16 September 2011, in which he responded to comments regarding the limitations of his principal report, also does not support Mr Palmer’s contention that a reversal of care would be in Martin’s best interests:³²

In conclusion, while I am of the opinion that the parenting assessment I carried out was comprehensive in nature and as full as could be expected under the circumstances, I acknowledge that my implicit focus in the assessment was on [Mr Palmer’s] relationship with [Martin] during contact. I understand that [Mr Palmer] is now applying to have [Martin] in his day- to-day care. While many of my observations and comments (and those of Dr Smith and Dianne Cameron) could be used to infer how [Mr Palmer] might handle the role of day-to-day caregiver, the critical variable would of course not be so much [Mr Palmer’s] parenting skills, but how [Martin] would react to a transfer of care within the context of alleged alienation.

³¹These extracts, which the Judge quoted more fully at [54], [113], [14] and [134] of the judgment

[68] In conclusion, I do not consider that there is any substance in this ground of appeal.

[69] Mr Palmer’s fourth ground of appeal is that the Judge took into account irrelevant matters in determining Mr Palmer’s ability to care for Martin. First, Mr Palmer claims that the Judge referred to Mr Palmer’s estrangement from his own father but made no attempt to connect this with Martin’s best interests. The Judge summarised the evidence relied on by each party as relevant to Mr Palmer’s ability

While I make no assessment as to the effect of [Mr Palmer’s] estrangement from his own father, what I do know is that the same (which he acknowledges) would likely have had an effect on him.

[70] It is clear from this passage, and from the fact that the Judge made no reference to this issue in the section of his judgment where he evaluated Mr Palmer’s ability to care for Martin, that he placed little or no weight on this factor despite being urged to do so by counsel for Ms Holm. I am not persuaded that the Judge made any error in his treatment of this issue.

[71] Mr Palmer next claims that the Judge drew an unfavourable inference from the fact that he suspected alienation at an early stage. He says that this was unfair given that the Family Court concluded at the first substantive hearing that Martin was estranged from him, as Judge Maude later confirmed. Mr Palmer considers that he is entitled to credit for being particularly insightful in identifying the estrangement prior to any of the professionals involved.

Like [Ms Holm], [Mr Palmer] showed himself to be well embedded in the litigation process.

From the outset, [Mr Palmer] indicated that he suspected alienation. He said that he had three friends who experienced the same. This, in the context of a very serious alienation for [Martin], seemed an unusually high number of friends to be the parents of alienated children compared to what one might expect as a normal cross section of friends.

[73] I agree with Mr Palmer that this issue has little relevance. However, I consider that he is reading too much into the judgment. The Judge referred to this issue in the context of his observation that both parties were deeply embroiled in the litigation. However, it appears that the Judge took this into account as a factor weighing against Ms Holm rather than Mr Palmer. This is evident from the Judge’s

Like [Ms Holm] [Mr Palmer] is well engaged in long-term conflict. I believe that the conflict is to some degree fuelled by [Ms Holm’s] determination not to facilitate a better relationship between [Mr Palmer] and [Martin], however it is a dynamic between these two adults that remains to [Martin’s] detriment.

[75] Mr Palmer complains that the Judge placed too much emphasis on the distress suffered by Ms Holm as a result of the existing contact arrangements rather than confining his attention to what was in Martin’s best interests long-term. Mr Ashmore submits that the Judge incorrectly followed the approach adopted by

[76] In Payne v Payne, the Court of Appeal sought to provide guidelines for dealing with relocation cases. Thorpe LJ proposed a disciplined approach to the consideration of relocation applications brought by the primary carer to guard against the risk of assuming too readily that the best interests of the child are aligned

In suggesting such a discipline I would not wish to be thought to have diminished the importance that this court has consistently attached to the emotional and psychological wellbeing of the primary carer. In any evaluation of the welfare of the child as the paramount consideration great weight must be given to this factor.

[77] In her judgment, Dame Elizabeth Butler-Sloss P considered that the adverse effect on the child of declining a primary carer’s relocation application was a particularly important factor to be taken into account:⁴⁰

I stress that there is no presumption in favour of the applicant, but reasonable proposals made by the applicant parent, the refusal of which would have adverse consequences upon the stability of the new family and therefore an adverse effect upon the welfare of the child, continue to be a factor of great weight.

[78] Payne v Payne was considered by the Court of Appeal in D v S. Richardson P, who delivered the judgment of the majority, rejected the Payne v Payne approach as being inconsistent with the “all-factor child-centred approach” required under New Zealand law.⁴¹He stated:⁴²

Further, Payne v Payne is not an appropriate model for New Zealand Courts. The guideline approach in Payne v Payne, with a clear emphasis on one only of the relevant factors to be weighed, is inconsistent with the approach required in New Zealand and not helpful as a reference point unless particular passages in the judgments are clearly identified and placed in a New Zealand context.

[79] The correct approach in New Zealand in a case such as the present is as set out by the Supreme Court in Kacem v Bashir, to which I have already referred. The relevant principles set out in s 5 of the Act are to be considered in the particular circumstances of the case. The requirement to protect the child’s safety may displace other principles in a particular case but, subject to that qualification, the s 5 principles carry equal weight. I now consider whether the Judge followed this approach in this case.

[80] The Judge addressed in some detail Ms Holm’s distress and the toll it had

throughout the five years of these proceedings’ existence she had parented by day and typically worked on the proceedings between 2.00 am and 6.00 am each [day].

“[em]battled” by the proceedings that had involved three and a half years’

I have recorded the above in some detail because what is plain to me is that for [Ms Holm] these proceedings have overwhelmed her to the point of exhaustion and imbalanced thinking.

... those behaviours are not [Martin’s] fault and [Ms Holm’s] sense of a need to protect [Martin] from [Mr Palmer] does impact adversely on [Martin]. The situation robs [Martin] of a relationship with his father who now seeks [a] relationship.

[Ms Holm’s] thinking has become, in my view, distorted by her own distress, magnified by incidents (already litigated and not the subject of the hearing before me) which were not bordering on serious enough to stand in the way of a normal relationship between [Martin] and his father.

[Martin] cannot progress as a successful human being into adulthood until freed from his mother’s distress and his father’s engagement in the downhill spiral that I have described.

[83] The Judge clearly considered Ms Holm’s distress to be disproportionate and reflected distorted thinking on her part. He was concerned about the effect this was having on Martin’s welfare and development:⁴⁶

It simply defies commonsense to think that a child being raised by a mother as distressed as [Ms Holm] displayed herself to be in the Courtroom, clearly alienated from his father, has not downloaded into his psychological being damage.

[84] The Judge considered that Ms Holm was impeding Martin from having a relationship with Mr Palmer and that this was a factor favouring Mr Palmer’s proposal. He said that, if it were feasible, he would implement the steps suggested

by Professor Warshak in the hope that would enable Martin to have an ongoing relationship with both of his parents, consistent with the principle set out in s 5(b) of the Act:⁴⁷

I observed at the outset that I accept implicitly that it is consistent with the s 5 principles referred to above that if possible in the welfare and best interests of [Martin] a therapeutic [intervention] should occur so as to establish for him as the s 5B [sic] envisages an ongoing and continuing relationship with both of his parents.

The issue is, referring to the words of the above paragraph, “is such intervention possible in the welfare and best interests of [Martin]?”

I must weigh the desirability of what Professor Warshak in his evidence advocates as a goal of parallel parenting aimed to achieve a positive relationship for [Martin] with each of his parents with on the other hand the trauma, distress and scarring that Dr Smith in her evidence indicated would flow from [Martin’s] removal from [Ms Holm] and surrounding family.

[85] It is apparent from these extracts that the Judge did not take Ms Holm’s distress into account as a factor weighing in her favour. On the contrary, he viewed it as a negative factor in Ms Holm’s parenting which was causing Martin harm. The Judge recognised the potential benefit to Martin of Mr Palmer’s alternative care proposal which was intended to enable Martin to have an ongoing relationship with both of his parents. Ultimately, however, the Judge rejected this proposal because he considered that, in all of the circumstances of this case, removing Martin from his mother and placing him in the care of his father, with whom he had little

relationship, posed an unacceptable risk of causing Martin even greater harm.⁴⁸

Sixth ground – failure to give sufficient weight to the negative impact of the continuing alienation by allowing Martin to remain with Ms Holm

Seventh ground – failure to evaluate all options with reference to s 5 principles as a result of flawed methodology

[88] This ground of appeal simply repeats the first ground of appeal and needs no further consideration.

Eighth ground – incorrect assessment of what was in Martin’s best interests

[89] Mr Palmer contends that the Judge came to the wrong decision by underestimating the ongoing harm to Martin caused by the present care arrangements and by overstating the risks to Martin of placing him in Mr Palmer’s care. Whether or not this is so, Mr Palmer is entitled to this Court’s view as to the arrangements that are most likely to serve Martin’s best interests.

[90] There is no doubt, as the Judge accepted, that Martin will continue to suffer as a result of not having a normal healthy relationship with his father. If Martin remains in his mother’s care, the alienation and consequent harm is likely to continue. The contact orders made by the Family Court from 2009 have clearly not succeeded in addressing this issue. There is no reason to suppose that a continuation of orders for enforced contact will achieve a different outcome. The only realistic prospect of addressing the alienation issue is to attempt the intervention discussed by Professor Warshak. However, the potential benefit to Martin through embarking on this course must be balanced against the harm he will undoubtedly suffer if he is suddenly removed from his mother’s care against his will, prohibited from having any contact with her, and placed in Mr Palmer’s sole care, at least temporarily. Given the present state of Martin’s relationship with Mr Palmer and his strong opposition to having any contact with him, this option would be highly disruptive and extremely distressing for Martin.

[91] The psychologists did not support Mr Palmer’s proposal for a temporary reversal of care combined with participation in Professor Warshak’s programme. Dr Smith, who had the closest involvement in the case, was strongly opposed to Mr Palmer’s application. Professor Warshak himself was not able to recommend that this course be followed in this case because he had not undertaken the required assessment. Indeed, he made it clear that his willingness to provide the Family

[92] This is a difficult case to which there is no perfect solution. Each of the options proposed carries the risk of harm to Martin. The Judge recognised this. He carefully evaluated the viability and risks associated with each of the options and took into account the principles set out in s 5 of the Act before arriving at his conclusion as to which was most likely to serve Martin’s best interests and welfare overall.

[93] While I can understand Mr Palmer’s strong desire to have a normal relationship with Martin and the rationale behind his proposal for decisive intervention to achieve this for Martin’s benefit, I am not persuaded that the Judge was wrong in not adopting this course. I agree with the Judge that, in the particular circumstances of this case, the potential benefits to Martin of attempting to overcome the alienation by following this approach are outweighed by the significant harm that Martin will inevitably suffer from making such an attempt. It follows that the appeal must be dismissed.

[95] If the question of costs cannot be resolved, any application for costs should be made by memorandum to be filed and served within 30 days of the date of this judgment. Any memorandum in response should be filed and served within 14 days

High Court of New Zealand Decisions

Palmer v Holm [2014] NZHC 2268 (18 September 2014)