NRT v RB [2015] NZHC 1805 (31 July 2015)

Last Updated: 1 September 2015

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

11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE HTTP://WWW.JUSTICE.GOVT.NZ/COURTS/FAMILY- COURT/LEGISLATION/RESTRICTIONS-ON-PUBLICATIONS.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-001256 [2015] NZHC 1805

UNDER	The Care of Children Act 2004
IN THE MATTER	of an appeal against a decision of the Family Court at Auckland dated 12 May 2015
BETWEEN	N R T Appellant
AND	R B Respondent

Hearing:	28 July 2015
Counsel:	A Ashmore for appellant No appearance for respondent L Kearns for children
Judgment:	31 July 2015

_{REASONS FOR JUDGMENT OF KATZ J}

Solicitors: Jackson Russell, Auckland

Counsel: A Ashmore, Auckland

L Kearns, Auckland

_{Copy to: R B (Respondent)}

N R T v R B [2015] NZHC 1805 [31 July 2015]

Introduction

[1] Ms T and Mr B, who separated over eight years ago, are the parents of a daughter aged 12 and a son aged 10.

[2] Ms T, who then had the primary care of the children, applied to the Family Court to relocate them to Dunedin in 2008. In 2009, following a defended hearing, that application was denied. She filed a further relocation application in 2013. Prior to that application being heard, however, she moved to Dunedin on her own (in February 2014) leaving the children in the care of their father.

[3] The second relocation application was heard by Judge B R Pidwell in the Family Court at Auckland over three days in April 2015. Her Honour declined the application on 12 May 2015. Ms T has filed an appeal against that decision. In addition Ms T has filed an “interlocutory application for order appointing expert”. In essence, Ms T requests that a psychologist be appointed to provide a report to this Court, for the purposes of the appeal, analogous to a report under s 133 of the Care of Children Act 2004.

[4] I heard argument regarding that application in the appeals list on 28 July

2015. Mr Ashmore argued that various deficiencies in the s 133 report provided to the Family Court resulted in a lacuna in the evidence before the Court. Mr B, who is self represented, did not attend the hearing (possibly due to a misunderstanding regarding timing). He did, however, file a notice of opposition and an affidavit in support of that notice. Ms Kearns, counsel for the children, strongly opposed the application that an expert psychologist be appointed for the purposes of the appeal.

[5] At the conclusion of argument I declined the application, with reasons to follow. Those reasons are set out below.

The psychologist’s report prepared for the Family Court hearing

[6] Ms Kearns advised that no s 133 report was sought by the parties or available at the first relocation hearing. Sometime after the second relocation application was filed, although it is not clear exactly when, the Family Court requested a report

from a psychologist pursuant to s 133 of the Care of Children Act. That report was provided on 8 May 2014, two months after Ms T had moved to Dunedin.

[7] Ms T sought, and was granted, leave to file a critique of that report, by a psychologist engaged by her. Ultimately she elected not to pursue that option, however. Instead she obtained the Court’s permission to provide a copy of the s 133 report to her nominated psychologist for the purposes of assisting her counsel with cross-examination.

[8] Judge Pidwell was critical of the psychologist’s report in her judgment. She found that the data the psychologist had relied on was clouded by the departure of Ms T on 14 February 2014. In particular, the psychologist had only observed Ms T with the children once, on the day of the departure, which was clearly a stressful time for all involved. The psychologist frankly acknowledged that her assessment was largely affected by this timing and that she did not follow her usual practice and methodology.

[9] Judge Pidwell also expressed concern that the psychologist had failed to comply with the Code of Conduct for expert witnesses in various respects. The report was heavily weighted in favour of Mr B. The psychologist accepted that to be the case and explained that she had had limited opportunity to engage with Ms T. Given this background, the Judge concluded that:

I accept Ms T’s position that the evidence of the psychologist provides little insight or assistance to the Court in respect of the fundamental issues for these children, which is an intricate balancing act. It was limited to that moment in time and that moment has now passed. Accordingly, I place little weight on it.

[10] The Judge’s decision to place little weight on the s 133 report was clearly favourable to Ms T and potentially prejudicial to Mr B (given that the report was heavily weighted in his favour).

Reasons for declining to order a psychologist’s report for the purposes of the

appeal

[11] It was common ground that this Court has jurisdiction to order that a psychologist’s report be prepared for the purposes of the appeal. Although s 133 of the Care of Children Act does not apply directly, as the term “Court” in that provision applies only to the Family Court, it was submitted that a psychologist’s report could be ordered using the Court’s inherent powers, if this Court concluded that was necessary for the proper disposal of the appeal. In terms of the criteria the Court should apply in deciding whether to order the preparation of a psychologists’ report, it was submitted that the Court should look to s 133 by way of analogy. I accept those submissions.

[12] Section 133(6) provides that a court may only order a psychologist’s report if:

(a) it is satisfied that the information that the psychological report will provide is essential [prior to 31 March 2014, “necessary”] for the proper disposition of the application; and

(b) it is satisfied that the psychological report is the best source of the information, having regard to the quality, timeliness, and cost of other sources; and

(c) it is satisfied that the proceedings will not be unduly delayed by the time taken to prepare the psychological report; and

(d) the court is satisfied that any delay in the proceedings will not have an unacceptable effect on the child; and

(e) the court does not seek the psychological report solely or primarily to ascertain the child's wishes.

[13] Mr Ashmore submitted that, given a psychologist’s report was ordered by the

Family Court, that Court must have concluded that such a report was “necessary” for

the proper disposition of the application.¹ The report produced at the hearing, however, was clearly inadequate. As a result, evidence which was necessary for the proper disposition of the relocation application was not available to the Court. Mr Ashmore submitted that the appropriate course in such circumstances is for a new psychologist’s report to be prepared and provided to the High Court, as fresh evidence for the purposes of the appeal. If that does not occur, Mr Ashmore submitted, the evidential lacuna that existed in the Family Court will persist on appeal.

[14] I accept that, at the time the s 133 report was requested, the Judge who did so must have been satisfied that such a report was necessary for the proper disposition of the second relocation application. It does not necessarily follow, however, that because the report was seen as necessary when first requested, it was still necessary by the time the appeal was heard and determined.

[15] The second relocation application was filed in 2013 and the s 133 report was requested some time prior to February 2014. For reasons that are not entirely clear, the second relocation hearing did not take place until April 2015. This was 14 months after Ms T had left Auckland in February 2014, and 12 months after the report had been filed.

[16] When the s 133 report was initially requested by the Family Court Ms T had been the primary caregiver for the children for their entire lives. How they would adapt to living with their father, in the event that the Court did not agree to them relocating to Dunedin with their mother, was an unknown quantity. Events had moved on very significantly by the time of the Family Court hearing in April 2015, however. By then the children had been living with their father for 14 months. The Court therefore had “real life” evidence before it regarding how the new care arrangements had worked out in practice. As a result, it was open to Judge Pidwell to conclude that a (reliable) psychologist’s report was no longer necessary for the proper disposition of the application and to proceed to determine the application,

_{despite the deficiencies in the s 133 report she had before her.}

¹ Section 133(2) as it existed prior to 31 March 2014, when the report was ordered.

[17] As Ms Kearns noted, the Judge had fairly extensive evidence before her, adduced over the course of a three day hearing. Ms Kearns summarised the Judge’s findings, based on her assessment of that evidence, as follows:

(a) The children are safe in each parent’s care.²

(b) The father is more likely to promote ongoing consultation. The mother is emotionally fragile and may still continue to find communication with the father too distressing to engage in. She is more likely to avoid communication and make unilateral decisions for the children. If she is in Dunedin, that position is likely to

compound.³

(c) On the principle of continuity of care, development and upbringing:

continuity favoured Auckland.⁴

(d) On the principle of continuity of relationship with both parents and extended family, the position is evenly balanced.⁵

(e) On the question of a party’s ability to meet the children’s financial and practical needs, on balance the father is financially more able to provide for the children.⁶

(f) In relation to the children’s views:

(i) little weight could be placed on the son’s views in light of his

age and ambivalence.⁷

(ii) the daughter was not of an age where she could foresee and analyse all the consequences of her decisions and while her

_{views were a heavy factor they were not determinative.}

² _{At [61].}

³ _{At [68].}

⁴ _{At [73].}

⁵ _{At [75].}

⁶ _{At [80].}

⁷ At [88].

Further, she has been influenced by relatives and that reduced the weight placed on views by the Court.⁸

(g) On the merits and reasonableness of the parties wishes to relocate the Court found that in light of the Court’s finding in 2009 and in light of other factors the mother’s wish to relocate to Dunedin was not reasonable or child focused. It may meet her needs but her needs were seen as been secondary to the needs and welfare of the children.⁹

[18] I accept this as a helpful summary of the key findings in Judge Pidwell’s judgment. I also accept Ms Kearns’ submission that a s 133 psychologist’s report was ultimately not necessary to enable the Court to make the above findings. It follows that the time of the hearing the Judge, who was the person best placed to assess the issue, did not believe that a psychologist’s report was necessary for the proper disposition of the application. There is no indication in her very comprehensive judgment that she saw the lack of a reliable s 133 report as being an impediment to her decision making in any way. Nor did either party request that a further s 133 report be obtained, due to the lapse of time, deficiencies in the report, or any other reason.

[19] I noted that, with effect from 31 March 2014, s 133 has been significantly amended. The new test is whether a report is “essential” for the proper disposition of the application. The learned authors of Child Law state that:¹⁰

The new s 133 reflects a concern raised in the 2011 review of the Family Court that there was significant reliance on court professional, and that this had resulted in delays in decision-making which, in many cases, was damaging to the best interests of the child. Concern was also expressed at the escalating costs of professionals involved in Care of Children Act proceedings.

⁸ _{At [87].}

⁹ _{At [85].}

10. Pauline Tapp and others (eds) Brookers Family Law - Child Law (online looseleaf edition, Westlaw) at [CC133.01].

[20] Accordingly, given that it has been agreed that I should apply s 133 by analogy, it is arguable that I should not order an expert psychologist’s report for the purposes of this appeal unless I am satisfied that it is essential for the proper disposition of the appeal. In any event, I am not satisfied that an expert report is either necessary or essential, so the application would fail on either the old test or the new one. That is not to say that a psychologist’s report might not be helpful. The test is not one of helpfulness, however, but of necessity (or essentiality).

[21] A further consideration under s 133 is that of delay. Under s 133(b) the Court must be satisfied that the proceedings will not be unduly delayed by the time taken to prepare the psychologist’s report. Further, under s 133(6)(d) the Court must be satisfied that any delay in the proceedings will not have an acceptable effect on the child.

[22] It was common ground that ordering a psychologist’s report for the purposes of the appeal would necessarily involve some delay in the hearing of the appeal. It would probably result in the hearing being delayed until early next year. I accept Ms Kearns’ concerns regarding the impact of any further delay on the children. She noted that they need certainty regarding their care and living arrangements, given that they have had to live with degree of uncertainty since 2013. They need stability and certainty, which can only be achieved by a final resolution of the relocation issue.

[23] For completeness, I note that the submissions I heard on this application were concise and narrowly focussed on the issue of whether I should order the preparation of an expert report for the purposes of the appeal. I was not required to traverse the evidence that was before the Family Court, other than to the extent it is referred to in Judge Pidwell’s judgment. It necessarily follows that nothing I have said should be taken as expressing any particular view of the merits of any issue in the appeal. Nor should any of the comments I have made above constrain in any way the scope of argument at the substantive appeal.

Result

[24] For the reasons outlined above, I declined the application to order the preparation of an expert psychologist report for the purposes of the appeal.

Katz J