Smf v Brt Fc Nap

JurisdictionNew Zealand
CourtFamily Court
JudgeP J Callinicos
Judgment Date04 February 2010
Date04 February 2010
Docket NumberFAM-2010-041-000029



In the Matter of the Care of Children Act 2004


A J Davies for the Applicant

K Monk for the Respondent

D M Kennedy for the Child


[Interim Care]

This is the outcome of a hearing to determine the interim care arrangements pertaining to a young child, K C H T born May 2007. Reference will also be made to her older sister, S S who is approximately 15 and a half. That child is obviously involved in a wider sense in proceedings, but has not been the subject of any applications between the parties.


The background to the matter is that on 18 January 2010, an interim parenting order was made granting to the child's mother, Ms F, the day to day care on an interim basis and supervised contact to the father, Mr T, on terms approved by the Court. In addition, a temporary protection order was made to which K was named as a protected person.


It transpires that since the making of those orders, the child has remained with the father. While a warrant was sought to enforce the day to day care aspect of the parenting order, Judge von Dadelszen directed on 26 January 2010 that the warrant was not then to issue, but rather the matter be set for an urgent interim hearing today on such basis as the presiding Judge should determine. That follows very much the approach advised by the High Court in a number of decisions to enable parties the opportunity to be heard, albeit in an interim and short cause situation, on care and contact arrangements.


The protection matter, which the father is also defending, is not subject to this hearing today, but I understand that that is progressing towards a hearing later.


Counsel confirm, therefore, that the main point of consideration is interim care arrangements for K and any necessary variation that might be required to a protection order depending upon the outcome of that aspect.


Before turning to my analysis of the issues I record that before signing this decision I have added reference to cases and the rationale of that case as i did not have the material before me at time of delivery of the oral decision, due only to the urgency of the situation. The reasons for my decision and my analysis of the legal considerations is unchanged, with the exception of grammatical corrections, inclusion of case reference and detail.


In terms of the law that I must apply or consider in determining these matters, the predominant provisions of the Care of Children Act 2004 are, first ss 4, 5 and 6 and also the safety provisions generally found in ss 58 through 62.


Dealing first with s 4. That requires that the Court must consider all matters according to the welfare and best interests of the child, having regard to the particular child in his or her particular circumstances. That is obviously intended to be focused upon the situation confronting the particular child rather than any notionalised view.


Section 5 outlines the principles to which the Court must have regard in assessing welfare and best interests of a child. These include such things as continuity in family arrangements, protection of the children from all forms of violence, and aspects of encouraging co-operation between parents or guardians of the children.


Section 6 requires that, where possible, the views of any child should be ascertained and that is achieved by affording to the child the opportunity to give views; any views so expressed must be taken into account alongside all other factors, including of course the welfare and best interests consideration.


The safety provisions commence with a definition in s 58 of the Act as to what is “violence” for the purposes of those provisions of the Care of Children Act. The section is very express and clear, stating that “ violence means physical abuse or sexual abuse”. No other form of abuse is mentioned.


There are some Family Court decisions (for instance Fielder v Hubbard [1996] NZFLR 769 and cases following) that take a view that the safety provisions themselves enable the Court to consider matters of psychological abuse. I wholly accept that in determining the overwhelming welfare and best interests of a child, the Court can have regard to all forms of abuse, but I take an entirely different view in that I do not believe that s 58 mandates, at all, the ability of the Court to consider psychological abuse within the specific assessment of safety in the sections concerned. There is provision (for instance ss 4, 5(e) and 60(6)) for the assessment of wider forms of risk, but that is a different means by which the Court can take into account psychological abuse. I do not differ as to the end point, but rather as to approach.


The reason why I take that view arises because the language of the Act is so clear. The approach in Fielder is founded in the view that Parliament could not have intended not to have included psychological abuse within the definition (see page 779). Such view was based upon Judge Ellis' analysis of the objects of the various Acts concerned (at that juncture the Guardianship Act 1968 and Domestic Violence Act 1995).


The Court is unable to adopt a purposive approach to statutory interpretation where the language of the Act is clear and unambiguous, as it is in s 58. In addition, it is clear that Parliament was well aware of what it intended when the provision was considered. Reference to page 17 of the Justice and Electoral Committee Report on the Care of Children Bill records, quite clearly, awareness of the difference in definitions between the Domestic Violence Act and the Care of Children Act. It states and I quote:

“…We note that while the definition of ‘violence’ in clause 52 binds the Court to go through a process where allegations of physical abuse or sexual abuse are made, the bill does not in any way prevent psychological violence being considered when making parenting orders and ensuring the child's best interests and welfare are met. This is reinforced by the guiding principle in clause 4A(e) which applies to a child's safety from all forms of violence.” (now ss 58 and 5(e) respectively)


What I take from that is that the Court has an overriding ability to assess psychological violence, but that is outside of specific considerations in ss58 to 62. The matter may not be of great moment, because I have certainly considered allegations of psychological abuse in the wider discretion, in any event. I will deal more specifically with s 60 assessments shortly.


In terms of the approach the Court must take on an interim hearing such as this, I adopt the views of Keane J in K v K [Custody] [2009] NZFLR 241, which although decided under the Guardianship Act and reported 4four years later remains applicable since the enactment of the Care of Children Act 2004. In that decision he states, particularly at para [37]:

“At short notice then, and often on slight facts, the Court may be asked to intervene; and all then that the Court can do by interim order, until the parents reach their own accord, or the Court is able to make a complete and considered review of what the child's welfare requires, is to give the child a measure of stability. That usually means confiding the child to the child's most familiar and reliable caregiver, and then provisionally.”


Keane J based his views in part upon the views of Hammond J in Fletcher v McMillan [1996] NZFLR 302. In that decision, particularly at page 304, Hammond J stated:

“…Assuming that there has been a state of affairs with respect to the child which can properly be described as a status quo, or something like it, such should not be disturbed unless the welfare of that child, using that term in largest sense as covering physical, mental or moral matters, is distinctly put at risk.”


He added that some appellate authorities indicate that any such intercession should only be taken on a convincing proof. That requires a reasonably high threshold in terms of the need for strong evidence, noting, of course, that the standard of proof itself is balance of probabilities.


I turn now to consider the matters before me. The first is that of the evidence.


I heard from each of the parties. They were each extensively examined. I found Ms F to be the less reliable of the two witnesses. I found her sometimes vague, or perhaps reticent in the way in which she answered questions put to her. Certainly, there was not a spontaneity attached to a direct answer to particular matters. There were instances where sometimes she could not recall events even, though they were reasonably clearly alleged to have occurred. I was not, overall, satisfied that she was reliable in her evidence before me.


I found Mr T, however, to be a frank, spontaneous witness. He was consistent throughout his examination. He was fair-minded and very focused upon the children. I found some of the mother's views of the children, especially the older child, quite dismissive. This was especially where she perceived the child was a taking different view than one which accorded with the mother's own wishes. I have reached a conclusion, by a significant margin, that Mr T was a powerful and a convincing witness whose evidence I preferred.


I must start my assessment, of course, with the issue of violence. I have noted my interpretation of s 58 and in terms of the allegations of physical violence. The mother has alleged one event of physical abuse, this occurring she says 19 months ago. She was no...

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