H v C Hc Chch

• Jurisdiction: New Zealand
• Judge: WYLIE J
• Judgment Date: 16 December 2011
• Court: High Court
• Docket Number: CIV 2011-409-000291
• Date: 16 December 2011

Between

H

Appellant

and

C

Respondent

CIV 2011-409-000291

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

Appeal from Family Court (“FC”) decision on final parenting order — parties had been contesting parenting arrangements for daughter (“C”) for four years — appellant (“A”) maintained that respondent (“R”) was a paedophile, had abused C, or there was a risk that he would abuse C — FC preferred R's evidence on majority of critical matters — found no reliable or appropriate evidence that R had sexually abused C and little risk it would happen — whether too narrow an approach had been adopted when considering whether R posed a risk to C.

P O'Donnell for the Appellant

A Gartner for the Respondent

S McNulty for the Child

[RESERVED] JUDGMENT OF WYLIE J

INDEX

Introduction	4
Factual Background	4
Court Proceedings	6
The Family Court Decision	12
The Notice of Appeal	20
Evidence Subsequent to Family Court Hearing	21
a)20 November 2010	21
b)1 January 2011	23
c)29 January 2011	24
d) 5 March 2011	25
e) 11 June 2011	25
f) 6/20 August 2011	26
g)Section 132 Report	26
h)Interview by Counsel for the Child	27
i)DVD Recording	27
Court's Approach to the Appeal	28
Analysis	30
Applicable Law	30
Judge Smith's Approach to the Applicable Law	35
Did the Judge Err in Concluding that the Respondent did not Physically or Sexually Abuse C?	37
a)Events of 4/6 August 2007	38
b)Face Sitting	40
c)Allegation of Sexual Abuse — July 2007	40
d)March 2010	41
Did the Judge Err in Concluding that the Respondent Did Not Sexually Abuse the Appellant?	42
Did the Judge Err when she Concluded that there was No Real or Unacceptable Risk that the Respondent will Sexually Abuse C?	43
Evidence of Events Subsequent to Family Court Hearing	50
a)20 November 2010	50
b)1 January 2011	52
c)29 January 2011	55
d) 5 March 2011	56
e) 11 June 2011	56
f) 6/20 August 2011	58
Evidence of Marion Williams	59
C's View	60
Summary in Relation to Further Evidence	60
The s 132 Report	61
Result	64
Costs	67

Introduction

1 The appellant appeals a decision of the Family Court at Christchurch given by Judge E Smith on 22 December 2010. 1

2 The appellant and the respondent are respectively the mother and father of a daughter — “C”. Their relationship came to an end in late 2006 and they have been contesting C's parenting arrangements since early 2007. Judge Smith's decision put in place a final parenting order for C. It provides that both the appellant and the respondent are to have the day-to-day care of C until she turns 16 years old. The respondent is to have C in his day-to-day care at various specified times, initially under the supervision of a Court-approved supervisor, and then unsupervised. At all other times, C is to be in the day-to-day care of the appellant.

3 Before Judge Smith, the appellant maintained that the respondent is a paedophile, that he has abused C, or if not, that there is a risk that he will. She continues to hold those views.

4 The appellant, in her appeal, alleged that Judge Smith adopted a too narrow approach when she was considering whether or not the respondent posed a risk to C, and that Her Honour did not have regard to the potential adverse effect on C of the respondent's views on sexual matters, or of his actions and practices of a sexual nature. The appellant also alleged that there have been a number of disclosures by C supporting her belief that the respondent has been sexually abusive since the Family Court hearing. She sought and was granted leave to adduce further evidence in that regard. I heard that further evidence over a period of some four days.

Factual Background

5 The appellant did not take issue with any of Judge Smith's factual findings or assessments of credibility. What follows is very much a truncated summary of those findings.

6 The appellant and the respondent met in or about 2000. They formed a de facto relationship shortly thereafter but did not marry until March 2005.

7 C was born on 26 May 2006.

8 Both the appellant and the respondent enjoy the support of their immediate and wider families. That is highly important to both of them. The respondent was particularly close to his mother. She died shortly after the parties met, and the respondent struggled to deal with her death.

9 In some respects, the parties' relationship was mutually satisfying and fulfilling. Throughout the relationship, each party was industrious, and each worked. However, they also suffered normal relationship tensions, particularly regarding their financial circumstances, dissatisfaction with the other's workload around the home, and related to this, the attention each gave to his or her own interests and hobbies.

10 The parties have fundamentally different personalities. The respondent is not sophisticated. He has a naivety about him, and his sense of humour was noted by Judge Smith as being “scatological”. At times his behaviour is infantile. In contrast, the appellant is more articulate and intelligent. She hails from a family that values morality, manners and appropriate social behaviour. Both she and other members of her family consider the respondent's sense of humour, naivety and behaviour at times to be barely acceptable.

11 The respondent began to struggle emotionally toward the end of 2006 and he sought assistance from his GP for mood-related issues. The relationship deteriorated over this period.

12 In the event, the appellant left the family home in Christchurch on 15 December 2006. She took C with her. She went to stay with her family in Pleasant Point — a small town some two and a half hours drive south from Christchurch. She returned to Christchurch for a short period in late 2007, but then returned to Pleasant Point. She has remarried and she continues to reside in Pleasant Point. The respondent resides with his father in Prebbleton near Christchurch.

Court Proceedings

13 On 21 December 2006, the appellant made a without notice application for the day-to-day care of C. Judge Smith observed that that application, while raising concerns about the respondent's general behaviour at the time, did not seek that the respondent's contact with C should be supervised.

14 The Family Court made a first interim order on the same day preserving the appellant's day-to-day care, and allowing reasonable contact to the respondent, such order to be reviewed on 16 January 2007.

15 When the matter was reviewed on 16 January 2007. Judge JJ Moran noted that there was agreement that the parties would attend counselling, and that interim contact should be implemented, as suggested by the respondent, on a fortnightly basis, alternately in Christchurch and then in either Geraldine or Pleasant Point, with the appellant bringing C to Christchurch when necessary. However, no formal order was made to this effect, and the first interim order remained in force.

16 In mid February 2007, the respondent made application pursuant to s 44 of the Care of Children Act 2004 (“the Act”) for an order that C should return to live in Christchurch. A hearing date in this regard was allocated for 11 June 2007.

17 The appellant filed an affidavit in opposition to the respondent's application. She suggested that the respondent should have weekly contact with C, alternating between Pleasant Point and Christchurch, and suggested that because of her general concerns about the respondent, primarily his then decompensated state and lack of parenting ability, the contact should be supervised.

18 In the event, the relocation hearing set for June 2007 largely settled. The appellant agreed that she would return to live in Christchurch, and the only contested issue was the timing of her return. On 19 June 2007, Judge JJD Strettell determined that she should return to Christchurch within six weeks of the date of his judgment.

19 By consent, a second interim order was also made on 19 June 2007, allowing interim day-to-day care to the appellant, with the respondent having contact every Monday and Wednesday, and on Saturdays in Christchurch. The appellant did not seek that contact should be supervised.

20 Not all Court-ordered contact occurred. The appellant said that this was because of C's ill health. Judge Smith concluded that the appellant repeatedly breached the second interim order, initially until 1 September 2007 and then from 10 September 2007 until 4 October 2007.

21 The appellant returned to live in Christchurch on or about 30 July 2007. There were further difficulties over contact. Matters came to a head on 8 August 2007. The respondent went to collect C. He waited one and a half hours and then contacted the appellant's mother. She refused to tell him where C and the appellant were.

22 Unbeknown to the respondent, and in breach of the Court's order of 19 June 2007, the appellant had returned to Pleasant Point on 6 August 2007.

23 On 8 August 2007, the appellant, on a without notice basis, sought to vary the second interim order. She sought that the respondent should not have any contact with C until further order of the Court.

24 The respondent did not know that this application had been made, and on the same day he applied to the Family Court in Christchurch for second order pursuant to s 44 requiring that C...