BA v CA

BA v CA

Family Court Manukau [2002] NZFLR 6, 7, 8, 9, 16 May 2002 Judge Doogue

FP 048/9/92

Custody Access Non-molestation orders Children at risk due to parents manipulative behaviour Inter-parental conflict Union of Fathers Courtappointed report writers Expert reports Expert witnesses Primary focus of s 29A reports Necessary Domestic Violence Act 1995, ss 14, 47 Guardianship Act 1968, ss 23, 27A, 29A.

The parties met while the respondent mother was still at school. They had an extremely unhappy marriage that was plagued with emotional, financial and sexual problems. The parties finally parted in 1991. The parties two children, J and A, were born in 1989 and 1991. The applicant father remarried in 1995. His second wife has a son the same age as J. In 1996, his second wife became convinced that the applicant father had sexually abused her son. The allegation of abuse was found to be unsubstantiated. The respondent mother was concerned that J also may have been abused. She became close friends with the applicant fathers second wife. She now lives in a house owned by the second wife. The applicant fathers second marriage subsequently ended, and in 2001 he married for a third time.

The respondent mother has a custody order in her favour, and has been the primary caregiver of the children since the parties separated. Numerous applications for custody and access have been made. The parties have been in conflict over the amount of access, drop off and pick up points, and care and protection issues. A number of reports have been prepared by various experts in relation to these applications. These reports have stated that both the parents are damaged and act in ways that are damaging to the children, and that the children, who are emotionally and socially immature, are at risk from their parents manipulative behaviour. Since the parties separated, the parties have acted to undermine each other as parents. The respondent mother has refused to allow the applicant father access to the children. Amongst other things, the applicant father has called the respondent mother a witch in front of the children and schooled them in the use of pictograms so that they could record incidences of their mothers negative programming and general misdeeds. Page 722; [2002] NZFLR 721 Neither parent is able to see that their behaviour is having a negative impact on the children.

The applicant father is seeking shared custody of the children. He also seeks to have a non-molestation order granted in favour of the applicant mother on 9 April 1992 discharged. The applicant father has alleged that the Court-appointed psychologist was partisan in her approach and had been compromised by earlier contact with the respondent mother. Earlier in her career, the Court-appointed psychologist had briefly met the respondent wife in her job with the Special Education Services in Auckland. He also alleged that both the psychologist and the critique writer did not exercise their professional obligations properly or fairly due to the fact that he had protested outside their respective places of work as part of the group Union of Fathers.

Held (making a shared custody order and discharging the non-molestation order)

(1) Court-appointed report writers do not make determinative findings of fact. That is the function of the Court. They are expert witnesses. If an expert witness is shown to have motivations that may call into question the impartiality of his or her conclusions, or if there are circumstances that may tend to undermine the experts objectivity, then those are matters that the Court should take into account when assessing the experts evidence.

(2) The primary focus for the Court-appointed psychologist and any psychologist undertaking a brief for a s 29A report is to report on the observations that they make of the children and of the impact on the children of the personalities, behaviours and parenting practices of the childrens caregivers. It is not common practice for them to contact referees as one would if a person were seeking employment and the employer needed to check references as to character.

(3) The respondent mothers approach to the time the children spend with the applicant father is as controlling as the applicant fathers attempts to increase the amount of time the children spend with him. The greatest risk to these childrens welfare is the rampant inter-parental conflict and denigration of each parent by the other to the children and in front of the children. Children such as these are at far greater risk of suicide, becoming engaged in criminal activity, abusing substances and failing to thrive educationally and emotionally than children whose parents do not behave in the way these parents have behaved.

(4) A litigant cannot be permitted to take advantage of his own intimidatory actions to bring about a state of affairs, which he desires.

(5) To continue a non-molestation order it must be necessary. To be necessary means that an order means cannot be done without having regard to the purposes of the statute. The onus is on the applicant for the order to establish on the balance of the probabilities that an order is necessary for his or her protection. The evidence must support her subjective perception. However, the reasonableness of that perception must be assessed objectively by the Court.

Application

This was an application for shared custody and discharge of a non-molestation order. Page 723; [2002] NZFLR 721

Mr BA self represented

Mr Bagnall as BAs Mackenzie friend

Mr Mitchell for the respondent

Mr Willoughby counsel for the child

JUDGE J M DOOGUE.

Introduction

[1] Mr BA and Mrs CA have two children J born in 1989 and A born in 1991. They met when Mrs CA was still at school. They endured an extremely unhappy marriage and parted finally in 1991. Since then they have not satisfactorily established the care arrangements of J and A. Mr BA remarried to Mrs BA in 1995 and Mrs JA in January 2001. Mrs JA has a son K who is 9. Mrs JA and Mr BA have a happy relationship and work harmoniously with Mr JB (Ks father) over shared parenting of K. Mr BA recently qualified as a counsellor with a diploma from a technical institute. Mrs CA has a custody order in her favour in respect of J and A and has been the primary caregiver of the children since the parties separation. Mr BA seeks a shared custody order.

[2] Mr BAs initial proposal for shared care was on a four weekly cycle where in week one JA and A would be in Mr BAs care from Friday after school to Monday morning at the commencement of school, week two in Mrs CAs care, week three after school from Friday night until Friday morning the following week in Mr BAs care and then in week four in Mrs CAs care.

[3] Mr BA acknowledged in evidence that it would be inappropriate having regard to the childrens needs for he and Mrs CA to share the parenting of the children on a 50/50 basis. I agree with his assessment as follows [page 64 line 3 of the Notes of Evidence]:

I think to go fifty-fifty would create trauma for everybody and I am not exactly sure that thats most beneficial.

[4] As a result of the evidence at hearing Mr BAs latest formulation as to how the parenting should be shared is as follows:

The children should be in his care;

(a) every second weekend from Wednesday or Friday after school to Monday morning before school

(b)

the first week of each school holidays (including the Christmas vacation)

(c) the weekend access that occurs nearest to the middle of the school term carries over from the Friday for a whole week (ie Friday after school to Friday morning the following week)

(d) in the Christmas vacation in addition to the first week of the school holidays the children spend two consecutive weeks during the second and third weeks of January in the care of Mr BA

(e) where any weekend access falls on a public holiday or long weekend, that access include the additional day/s

(f)

sometime on each of the childrens birthdays

(g)

special family occasions of Mrs J.A and Mr BAs extended families Page 724; [2002] NZFLR 721

(h)

Unrestricted telephone contract.

[5] Several specialist reports of different varieties have been commissioned since 1992 with a view to identifying the cause of the familys dysfunction and Mr BA and Mrs CAs inability to co-parent the children with a view to specifying how that might be ameliorated so as to benefit J and A.

[6] Sadly matters have not improved for the children and the conclusion that must be reached is that in different ways both of these parents are damaged and act in a way that is damaging to the children. This case demonstrates how uncomfortably the adversarial process sits with problems arising from parental behaviours and attitudes. It is an unrealistic expectation for the parents to think that any Court can fix what really only they can fix.

[7] These children are very different from one another. The reasons for that are the subject of earlier reports and are not really in dispute between the parties. In respect of the first issue in this case ie what care arrangements should be put in place for the children I do not identify any significant points of distinction in their current needs. Both these children are emotionally and socially immature. As a result they are much more vulnerable to the pressure of inter-parental conflict and damaging behaviours of their parents. Being aged between 9 to 14 they are considered to be within the most vulnerable age group in respect of damaging parental behaviours. The consequences of ongoing damaging parental behaviour for these children are potentially dire. They include a high risk of suicide.

[8] Since the parties separation in 1991 there have been numerous applications for custody and access and in connection therewith a number of reports have been prepared by various experts. Because of allegations made by Mr BA I must make findings as to whether the present Court-appointed psychologist Ms Raethel was partisan in the approach she brought to her assessments and whether she was compromised by contact with Mrs CA at an earlier time. Mr BA also raised a concern that Ms Raethel and Ms Blackwell, the critique writer, did not exercise their professional obligations properly or fairly as far as he was concerned because of protests he was involved in outside their respective places of work.

[9] I must also determine whether the non-molestation order dated 9 April 1992 obtained by Mrs CA against Mr BA should be discharged or not.

Background History

[10] This has been documented extensively by the specialist reports and by the parties themselves. The next section of this decision then represents my findings as to the significant events leading to the situation this family finds itself in. Because I must traverse a ten-year history since the parties separation this will be unusually lengthy and detailed.

1991 1996

[11] The parties separated in September 1991 after an emotionally turbulent marriage plagued with emotional and financial problems and Page 725; [2002] NZFLR 721 some acknowledged violence. It is Mrs CAs experience that she was emotionally and sexually abused in the marriage. Mr BAs construct is now that nothing of the sort occurred. He acknowledges that he did not support Mrs CA sufficiently and feels he used work as an outlet to cope with the stressful marriage. He also admitted to alcohol abuse in the early years of the marriage.

[12] I have drawn assistance from Judge ODonovans decision of 9 April 1992. He concluded:

I am satisfied that there were difficulties in the sexual relationship of the parties during the marriage as a result of which the wife may have believed herself the subject of assault which she has described as rape.

and

The evidence persuades me nevertheless that there have been frequent occasions during the marriage and some less frequent occasions since the separation of the parties when the husband has been guilty of losing his temper and of conduct which has caused the wife to stress . . .

and

It is clear to me on the evidence that the wifes response to occasions of this sort of distress is to suffer symptoms of ill physical health.

[13]

The Court-appointed psychiatrist reported in early 1996:

B . . . also denied any sexual abuse or rape of C . . . at anytime but did concede that he shouted at her and emotionally abused or neglected her due to his frustration with her passivity and due to his work and financial stress. He spontaneously related to me the one episode of physical abuse with C, but initially presented this as excusable as he caught her being unfaithful with another man . . . he had accidentally broken her rib with his elbow.

[14] Neither of the parties was cross-examined directly on the sexual and emotional abuse. I cannot therefore make a determinative finding thereon nor is it necessary for me to do so for the purposes of deciding the childrens current needs. Ms Raethel concluded in her 1996 report that Mrs CA was able to provide a detailed account of her ten years of relationship and marriage which portrayed a picture of serious and sustained emotional and sexual abuse. She diagnosed Mrs CA as having posttraumatic stress disorder. Because of the factors referred to at the beginning of this paragraph I prefer to settle this matter for the purposes of this decision on the findings of Judge ODonovan and the section of the psychiatrists report quoted in the previous paragraph. I therefore accept there were sexual difficulties, emotional abuse and some violence perpetuated by Mr BA against Mrs CA

[15] Between September 1991 and October 1993 the parties were in conflict over the amount of access, the location of drop off and pick up points and care and protection issues. No satisfactory arrangements had been reached for the care of the children. The Court-appointed psychologist Kath Naughton reported to the Court in October 1993 that Page 726; [2002] NZFLR 721 both parents had to make a concerted effort to change their behaviour. I am satisfied her assessment was correct at that time.

[16] Following on from that, for reasons on which the parties differ, access did not occur. Mr BA believed Mrs CA to be putting unreasonable conditions on access and decided he ought to refuse to play the game. This was interpreted by Mrs CA as his having a lack of interest in J and A. Mrs CA removed J from access because of regression in his behaviour after access to Mr BA

[17] Kath Naughton reported to the Court again in April 1995. She observed that the children needed to have access to Mr BA in order to develop a sense of their identity and heritage but she cautioned that access should not however be so stressful that the benefits were outweighed by the damage. Her view was that both parents needed help to put the childrens interests ahead of their own. She considered that the parents had to work through the regressive behaviours exhibited particularly by J as being natural consequences of substantial change rather than stopping access as the response.

1996 1999

[18] Following the 1995 Naughton report access recommenced and was taking place reasonably well. Ms Raethel reported in her report of 1996 that this was to the credit of all parties and they were all able to cooperate at that time.

[19] Mrs CA had by then home schooled J with very good results academically and socially. Both the children seemed to be pretty well adjusted all round. Because of the care giving history up to that time the children had a secure attachment with Mrs CA and a tentative relationship with Mr BA The children had settled into a regime of fortnightly visits with Mr BA Problems arose over dietary requirements and J became unwell after access. Anne Raethel reported the children returned from access, sullen and abusive toward Mrs CA which she attributed to them being placed in a conflict of loyalties by Mr BA There were issues of management of the childrens asthma at that time too.

[20] A further crisis arose in 1996. Mrs BA, Mr BAs second wife, became convinced that he may have sexually abused her son J who is approximately the same age as JA. Mrs CA became concerned in light of this information that J in particular may have been the subject of such abuse.

[21] An investigation of the sexual abuse allegations was undertaken by the Children and Young Persons Service and it reported to the Court on 19 March 1996. Mrs BA made the only allegation of abuse. Mrs CAs complaint was that her son was bleeding from the bowel after an access visit and there was no actual allegation of sexual abuse made by Mrs CA but like the social worker of the time I gather it was insinuated. I consider it still remains unresolved in Mrs CAs mind and continues to colour her concern about Mr BA spending time with the children.

[22] Mrs BA and Mrs CA became very close friends and both are convinced Mr BA has sexually abused one or more of their children. They became very supportive of one another. They spent a considerable amount Page 727; [2002] NZFLR 721 of time together at this time and may well have fed on one anothers anger and experience of being married to Mr BA Mrs CA lives in a house owned by Mrs BA which is an indicator of an ongoing relationship between them.

[23] The allegation of abuse was found to be unsubstantiated. The social workers report contains some useful collateral observations however.

. . . I wonder whether C. has allowed her feelings of extreme hatred to override her judgment completely. She strongly objects to B telling the children that he loves them

and

. . . I am concerned about the amount of discussion that they [the children] have heard about (Mrs BAs and Mrs CAs) allegations of sexual violence towards them. Both women have been repeatedly told that this must not occur but it has been witnessed by several of the professionals involved.

Both Mrs BA and Mrs CA have developed an extreme hatred of B . . . which will continue to hamper any effort for B . . . to establish ongoing access to the children.

and

She [Mrs CA] is very angry, full of hatred, determined on revenge and anxious to do all in her power to prevent B . . . from having any access to the children at all. She may well have become irrational and is already contacting families with small children who have had anything to do with B to urge them to make complaints of sexual abuse.

[24] Importantly the social worker had doubts about Mrs BAs credibility. One of the very difficult issues in this case is that much hinges in Mrs CAs case of the accounts of Mrs BA being valid as to violence and sexual abuse being perpetrated by Mr BA against her and her son. There is support for Mrs CAs case in Ms Raethels assessment of Mrs BA after one interview with Mrs BA on 13 June 1996. Her report of 2 August 1996 is predicated on a full acceptance of Mrs BAs accounts and Mrs CAs accounts. In a matter where the allegations are so serious and far reaching it would not be fair to the parties and ultimately to the children for the Court to make any decisions on Mrs BAs credibility in the absence of her being rigorously crossexamined particularly where there are two totally polarised assessments of her credibility by the Court-appointed report writers. It must be understood that Courtappointed report writers do not make determinative findings of fact. That is the function of the Court. No adverse inference should be drawn from any discrepancy between the opinions of the two report writers. The issue can however not be resolved when neither Mrs BA nor the social worker gave evidence but the social workers views must be taken into account when evaluating Ms Raethels reports.

[25] Following the finding that there had been no sexual abuse of the children by Mr BA access to Mr BA then continued after 1996 every second weekend. First it was alternate weekends access Saturday and then Sunday and then towards the later part of this period from Friday evening Page 728; [2002] NZFLR 721 to Sunday evening, plus a week of each school holidays and time between Christmas and New Year.

[26] Sometime in 1999 Mr BA and Mrs JA became engaged to be married. J was told by Mrs CA not too get to close to Mrs JA because the relationship between Mrs JA and Mr BA would not endure. Her associates also contacted the church Mrs JA and Mr BA were attending warning that Mr BA was a child molester and referring to the 1996 investigation.

2000 2001

[27] On Saturday 11 November 2000 Mr BA and Mrs JA talked with the children about the option of them spending week about between Mrs CAs home and Mr BAs home. It was Mr BA and Mrs JAs belief that the children were keen for this to happen. The next day they summoned Mrs CA to a discussion about this. Mr BA and Mrs JA maintain an agreement was reached for a trial of an arrangement where the children would spend one week each month in Mr BAs home and that the arrangement would be reviewed six months later with the aim of gradually increasing the care up to week about. Mrs CA believed she was placed under unreasonable pressure to agree and that she had sought time to consider the proposal and having done so she rejected it. She had a severe adverse reaction to these events and took to sleeping on a mattress in her lounge fully clothed. I am satisfied this also caused Mrs CA injudiciously to tell the children that Mr BA was trying to take them from her. She also told them that at times in the past Mr BA had not wanted to have them and that if a week about regime commenced she would lose the D.P.B. She denies these statements but I do not accept the denials particularly in light of other statements she has made that I will traverse later in this judgment.

[28] After the discussion between Mr BA, Mrs JA and Mrs CA matters deteriorated for the children. By way of example the children would accuse Mr BA of not wanting to see them. He took advice from a counsellor who advised him to show the children invoices he had received from his lawyer for services rendered to attempt to obtain regular access. Mr BA did this ill-advisedly and it seriously upset the children. He accepts now that he should not have followed the advice he was given as that action was gravely injurious to the children. The children also accused him of adultery and were generally confused when they arrived for access.

[29] Not surprisingly they would return to Mrs CA in a very unsettled state. Mrs CA reported that the children would accuse her of things she had done and at other times would be secretive and emotionally distanced from her. The children accused her of having had an adulterous relationship also.

[30] Mrs CA reported that the children had said to her after an access visit around that time Dad said you are a horrid witch who puts curses on children and you have a broomstick. We are not allowed to tell you the surnames of our friends otherwise you will put curses on them as well. Mr BA accepted that he had made a remark to Mrs JA at the Warehouse to the effect that Mrs CA was a witch and that he should purchase a broom handle for her. He says he was not aware that the Page 729; [2002] NZFLR 721 children had been within earshot of that conversation. I do not accept that what occurred was as benign as Mr BA would have me believe.

[31] Similarly I do not consider Mrs CAs actions around that time to be as benign as she would have me believe. The evidence leaves me with the distinct impression that she was openly discussing these matters with well meaning fundamentalist Christian colleagues in front of the children and on at least one occasion with the children with the assistance of these same colleagues. That would have put considerable pressure on the children as well.

[32] In addition she conceded that she had said either to or in front of the children on numerous occasions that Mr BA collected step-mothers and step-brothers like other people collect stamps, that all of the step-mothers should wear T-shirts with arrows pointing to the left saying we all married this man and that Mr BA should stand to the left of the step-mothers and that she had on one occasion stood at an ATM withdrawing cash and said something to the effect that the cash was coming from wife number 2 to pay wife number 1. Mrs CA was genuinely unable to understand that these statements amounted to abuse on her part.

[33] Against that general emotionally abusive background where both parents are conducting themselves injudiciously as far as the children are concerned J ran away from Mrs CAs home one evening and went to Mr BA and Mrs JAs home. It is the childrens belief that Mr BA actively encouraged that action. Mr BA denies that. What is significant is his statement at page 106 of the Notes of Evidence line 18 which leaves the Court with the impression that the deed having been done he did not handle it appropriately. He should have discouraged his son from such open defiance towards Mrs CA just as I would expect Mrs CA to discourage either child from running away in defiance of Mr BA As an example of the real crux of this case [see para 6] just as I have a concern about Mr BAs actions in this regard if the converse situation occurred I expect Mrs CA would act much as Mr BA did ie in a way so as to undermine the other parents parenting.

[34] At some time between November 2000 and April 2001 Mr BA schooled the children in the use of pictograms a method of recording symbols of events as aides memoires. A purpose of the exercise was for the children to record incidences of Mrs CAs negative programming and general misdeeds. Mr BA cannot see that that exercise has placed the children under considerable pressure and has been seriously detrimental to their emotional wellbeing, although he did state in his affidavit of 4 October 2001 as follows:

I would accept that some of the things that have occurred such as drawing pictograms have had the wrong effect. I have not done these things because I wished to undermine [Mrs CAs] parenting or to influence the children. The pictograms have not been drawn since April and May of 2001 and they will not be drawn again.

[35] Ms Raethels report of 17 September 2001 was forwarded to the parties around 25 September 2001. On 3 October 2001 Mrs CA applied to suspend access on the basis of Ms Raethels report. Page 730; [2002] NZFLR 721

[36] On 9 October 2001 Judge Aubin restricted the access to Sunday daytime access every second Sunday. The children had access with Mr BA on 13 October 2001. Arising out of statements the children made to Mrs CA in the days following she alleged that Mr BA had:

(a)

yet again alluded to her being a witch;

(b)

taught the children to telephone him collect;

(c) shown them the Court pleadings including her affidavit in support of her application for suspension of access dated 2 October 2001;

(d)

reprimanded the children for using pictograms with Ms Raethel.

[37] She applied again on the 29th of October 2001 for a suspension of access. And she unilaterally withheld access.

[38] I am satisfied there was a further allusion to Mrs CA being a witch arising out of a discussion the children had with Mr BA about watching the movie Mathilda. I am satisfied that Mr BA taught the children to use a public phone to make collect calls. I accept that in large measure he did that so that if there was a unilateral suspension of access the children had some way of being able to make contact with him as they had no telephone at home available to them.

[39] On his own evidence contained in his affidavit of 9 November 2001 it is clear that Mr BA did show the children a part of the pleadings and that he did discuss some of the content of Mrs CAs affidavit with them. He says it was to inform them and himself of the truth of the situation at that time. Whatever his motivation his actions would have been distressing to the children as would the unilateral and inexplicable cessation of access by Mrs CA

[40] On 16 November 2001 Mrs CA made yet another application to the Court. This time it was an application not to suspend access but to vary it. She applied for an order that access by the children to Mr BA should take place between 10.00 am and 5.00 pm Saturday and Sunday every alternate weekend. Mr BA responded by seeking orders in terms of a Parenting Plan he filed as exhibit A to his affidavit of 20 November 2001. He sought a reinstatement of full weekend access 5.00 pm Friday to 5.00 pm Sunday, and further that when that access fell on a long weekend any additional day/s were to be included and one week in each of the school holidays and Christmas Day in Auckland 2001.

[41]

Mr BAs affidavit of 20 November 2001 contained the following:

15. THAT the other significant thing I have learnt in the last few weeks is that it is not enough to be just avoiding negative comments about the other parent, because this will still leave a perceived undermining But to ensure no accidental undermining occurs, the only successful way is to actively promote the other parent.

16. THAT it seems apparent to me that over the course of this year, [Mrs CA] and I have BOTH not done all that we could to promote each other as parents.

[42] I consider that to be a very accurate summation of the toxic situation these children were in at that time and that the responsibility for that state of affairs did indeed lie with both Mr BA and Mrs CA Page 731; [2002] NZFLR 721

[43] After the hearing before Judge Clarkson on 10 December 2001 Mr BA and Mrs CA were directed to attend therapy. That was unsuccessful in addressing the attitudinal problems and no advance was made in assisting these parents to trust one another and to cooperate with one another. Mrs CA is implacable in her beliefs and quite impervious when it comes to accepting the suggestion that she has indulged in some of the behaviours she has criticised Mr BA of. Mr BA has learnt to temper his beliefs or present them in a more conciliatory fashion but has recently been acting in ways which undermine his articulated position that he is not in anyway to blame for the fact that these children are in conflicted positions of loyalty as between Mrs CA and Mr BA

[44] In early January 2001 Mrs CA deliberately decided not to facilitate access by A to Mr BA on As birthday. I am satisfied she was also carefully manipulating telephone access.

[45] In all approximately 17 requests had been made by Mr BA over the period November 2000 to January 2001 for access to the children on special occasions. All but one had been ignored by Mrs CA yet Mrs CAs view was that she was open handed about such requests.

[46] As counsel for the child submitted, against this background the initial application for shared care by Mr BA and Mrs CAs applications for suspension/stay and variation of access could be seen as abusive. Mr BA should not have made his application because equal sharing was unlikely to be regarded as appropriate in the circumstances prevailing at the time. Mrs CA should not have made her application because a cessation of access was not in fact recommended by the Court-appointed expert and was unlikely against a pattern of regular and relatively adequate access and because it was against the childrens wishes.

[47] I have concluded overall that Mrs CAs approach to the time the children spend with Mr BA is in fact as controlling as Mr BAs attempts to increase the amount of time the children spend with him.

[48] The evidence satisfies me that the greatest risk to these childrens welfare is the rampant inter-parental conflict and denigration of each parent by the other to the children and in front of the children. It does not surprise me that Ms Raethels opinion is that J is at risk of suicide. If the conflict and denigration does not abate then that risk many also follow for A. Children such as these are at far greater risk of suicide, becoming engaged in criminal activity, abusing substances and failing to thrive educationally and emotionally than children whose parents do not behave in the way these parents have behaved. Nothing the Court orders in terms of shared care will rectify the fundamental problem facing these children these parents behaviour. Sadly I have to say to these parents carry on the way you have been and you may face the tragedy of one or both of your children taking their own lives. You will have no one to blame but yourselves.

Ms Raethels report of 2001

[49] In her report of 17 September 2001 Ms Raethel expressed the following options: Page 732; [2002] NZFLR 721

(a) The basic physical needs of both children were attended to in each parents home;

(b) That the children were under serious psychological and emotional pressure due to the litigation;

(c)

That the children wanted to see both parents;

(d) That Mr BA had placed the children under pressure to enumerate Mrs CAs faults to Ms Raethel;

(e) That the children had adopted the role of spying as between the two households;

(f) That the attitude displayed by Mr BA to an incident when J ran away from Mrs CAs house and went to Mr BAs house was unsafe and undermining of Js relationship with Mrs CA;

(g) That these parents have widely differing expectations and beliefs as to how the children should be managed and parented;

(h) Neither parent is able to totally support the other, as they believe that the other parent is not doing things that are in the best interests of the children.

[50] Mr BA has submitted that Ms Raethels reports were unreliable for the following reasons:

(a) Ms Raethel had contact with Mrs CA before 1996 when she did her first report;

(b) Ms Raethel did not pay sufficient regard to his nominated referees and intimidated his personal psychologist (see para 5 of Mr BAs affidavit of 24 December 2001);

(c) The tenor of her reports was all negative as far as he was concerned and all positive as far as Mrs CA was concerned;

(d) She had formed an adverse opinion of him arising out of a protest by the Union of Fathers outside her work premises.

[51] In paragraph 14 of his submissions of 30 April 2002 and elsewhere Mr BA expresses the concern that the focus of this hearing may have moved from the children to the experts. That is not so, so far as the Court is concerned but given the allegations made by Mr BA as to the impartiality of two of the five expert reports writers it is necessary in the interests of the children to examine his allegations. Nevertheless the overriding consideration must be to identify these childrens needs both physical and emotional and determine what the least detrimental care giving arrangement might be for them after taking into account their express wishes having regard to their age and maturity and any influences impacting on them (s 23(1) and s 23(2) of the Guardianship Act 1968).

[52] I have been referred to authorities concerning the nature of conflict of interest and tests for bias but in my opinion these are irrelevant to the decision this Court must make. They concern circumstances where a decision-maker may be disqualified. Ms Raethel is not a decision maker, in the context of her involvement in these proceedings, but an expert witness. It is her credibility as an expert witness which is called into question by Mr BAs allegations. Page 733; [2002] NZFLR 721

[53] If an expert witness is shown to have motivations which may call into question the impartiality of her conclusions or there are circumstances which may tend to undermine her objectivity those are matters which the Court should take into account in assessing her evidence. With that background I now turn to evaluate Mr BAs allegations and to consider whether or to what extent they should be regarded as detracting from the credibility of Ms Raethels opinions and recommendations.

[54] Mr BA raised a concern that Ms Raethel had had significant prior involvement with Mrs CA before accepting the appointment from the Court. The evidence is that she did have some prior involvement and so it is necessary for the Court to establish the extent of that involvement and to assess whether that has detracted from Ms Raethels ability to discharge her professional obligations fairly and properly.

[55] In this case Ms Raethel, who had previously been Deputy District Psychologist for Special Education Services in Auckland, was, after completing a law degree, working on a brief contract for Special Education Services in Auckland. Amongst her duties as a Senior Psychologist she was associated with allocating teacher-aid hours and assisting the Early Intervention Team specialists who included speech therapists and teachers. The caseload of these people involved more than thirty schools.

[56] As she has stated in her correspondence to counsel for the child, Ms Raethel, when contacted in 1993, declined to accept the referral because she knew that J was on the caseload of SES.

[57] Ms Raethel visited Mrs CA and J briefly with one of Js therapists when the childs behaviour deteriorated badly after access visits in 1993. Ms Raethel has no personal recollection of this and has no way of checking this out further.

[58] Mr BA has obtained Special Education Services files and these indicate that Anne Raethels name is on the case notes. The case notes entered in October of 1993 but not by Ms Raethel indicate:

Home visit with Anne Raethel to discuss problems re Court hearing for limiting access of father. Bad reaction (bedwetting, withdrawn, etc. after visits). Compared unfavourably with girlfriends child, abusive to Mrs CA.

[59] This note was presumably made by the primary caseworker who must have requested that Ms Raethel accompany her on the home visit.

[60]

A further note on a record of a case meeting held on 10.12.93 indicates:

. . . C may need to contact Anne Raethel if problem continues: especially stinky bottom occurrence.

[61] Ms Raethel cannot recollect the visit documented and there is no evidence there was subsequent contact or visits. She said that should someone have discussed problems with access she would have suggested that they see their lawyer with regard to having the matter dealt with by the Family Court. Page 734; [2002] NZFLR 721

[62] The matter arose again in 1996 when Ms Raethel no longer had an association with Special Education Services. She was asked to do a report for the Court because in the interim Kath Naughton had left New Zealand. Ms Raethel was selected because of her expertise in the area of special needs children. As she had seen hundreds of children in the intervening time I consider it perfectly understandable that she did not recall the name or her previous very brief association with J and Mrs C. A. When she received the documents from the Court there was nothing to indicate that she had previously declined to accept the referral. It is apparent that the Court Co-ordinator, by then Sue Alpass, did not look at the previous parts of the file and therefore instruct Ms Raethel.

[63] Psychologists usually ask for names of parties before accepting instructions. Instructions that would constitute conflict of interest include, the parties being well known to them, being neighbours, friends or family, or people who have been their ongoing therapy clients. It was apparent that Mrs CA did not constitute a conflict of interest in this way. I have no doubt whatsoever that if Ms Raethel had recognised the name she would have rejected the instruction.

[64] There is no evidence that Ms Raethel had any therapeutic relationship with Ms CA or J, this being supported by the lack of recognition of prior contact on the part of both Ms Raethel and Ms CA Ms Raethels role at that time was to advise the primary caseworker. She has never destroyed or removed any documentation from the SES file as alleged by Mr BA in his affidavit of 26 March 2002.

[65] Therefore, whilst it would have been preferable that Ms Raethel had recognised the name and declared her previous prior brief involvement to both parties prior to commencing the assessment, or alternatively refused the instruction, there is nothing to indicate that her brief involvement in 1993 in any way precluded her from exercising objective professional judgement.

[66] Although I have reached that conclusion I consider it was understandable that Mr BA needed reassurance about the process issues arising from these circumstances.

[67] Mr BA alleges Ms Raethel did not pay sufficient regard to his nominated referees, and that she intimidated his personal psychologist.

[68] There is a memorandum on the Court file dated 18 April 2002 from the Principal Family Court Judge P D Mahony to the Registrar, Family Court Manukau:

Mr BA, a litigant in person in proceedings before the Family Court at Manukau approached me in November of last year with a number of complaints concerning his proceedings. By letter dated 19 November I advised him to raise his concerns with the Court. There were however two matters in which he made serious allegations against Ms Anne Raethel who has been appointed by the Court to prepare a s 29A report in the proceedings.

His allegations arose out of comments which he says were made by Ms Raethel:

(a)

To a person whom he described as a supervisor; and

(b)

To himself. Page 735; [2002] NZFLR 721

Mr BAs complaints in those two instances raised serious issues of concern beyond the proceedings and I appointed Mr Gray Cameron, Barrister, to investigate both matters and advise me whether they warranted further action.

The matter involving the supervisor has been resolved through this process. In a written statement she has confirmed that Ms Raethel did not in fact make the statement attributed to her by Mr BA That matter is therefore concluded.

[69] The allegations referred to in the memorandum were not raised during the hearing. I have referred to the memorandum as I believe it appropriate to record that I have read it but it has no influence on the matters I have been called upon to decide. I now turn to the allegation that Ms Raethel did not pay regard to Mr BAs nominated referees. The primary focus for Ms Raethel and any psychologist undertaking a brief for a s 29A report is to report on the observations that they make of the children and of the impact on the children of the personalities, behaviours and parenting practices of the childrens caregivers. It is not common practice for them to contact referees as one would if a person were seeking employment and the employer needed to check references as to character. Thus it is misconceived for Mr BA to see this as deficit of Ms Raethels methodology. It is entirely appropriate for her to adhere to the task she had been given by the Court as expressed above.

[70] Mr BA alleged gender bias. In his affidavit dated 9 November 2001 he stated, That the psychologist Anne Raethel did not report one negative thing about Mrs [CA] nor one positive thing about me. This in itself suggests gender bias. I can see no evidence of that. Whilst Ms Raethels report of 2001 contains some factual assessment which seven months later and having heard extensive evidence I consider not well founded nevertheless Ms Raethel focused on the behaviour of the parents and the children. She has described the behaviours in coming to the views which she has expressed. Although her reports may contain adverse conclusions as to some aspects of Mr BAs parenting the totality of her reports and evidence is supportive of his maintaining contact with the children at this time. In addition she concluded that the childrens physical needs were met in both homes.

[71] In both her reports and in her evidence at hearing she is supportive of the children spending time with Mr BA She was also able to identify at the hearing that some of Mrs CAs conduct amounted to psychological abuse of the children. Any criticisms made of Mr BA related to his behaviours as a parent as she assessed them not his sex. She was supportive of access in 1996 and in 2001 when some of Mr BAs behaviours were abusive and acknowledged by him to be so at a hearing before both Judge Clarkson on 10 December 2001 and before me in this hearing.

[72] It will be evident from the findings that I have made that a substantial number of the conclusions Ms Raethel came to [see para 49] are consistent with my assessment after having considered the totality of the evidence. Page 736; [2002] NZFLR 721

Were Ms Raethel and Ms Blackwell compromised in the exercise of their professional judgment because of the Union for Fathers protests outside their places of work?

[73] Mr BA claims Ms Raethel is disqualified from giving evidence to this Court because his own actions in protesting outside her offices will have predisposed her to give a report which is against his interests. In his affidavit of 30 April 2002 Mr BA is critical of the critique written and Ms Blackwells impartiality on two counts:

(a)

That she is a good friend of Ms Raethel,

(b) That he had had previous (negative) dealings with Ms Blackwell before she wrote the critique (see para 8). The negative dealings to which he refers are his protest outside Ms Blackwells premises in early February 2002 and his belief that Ms Blackwell called the police to have him removed.

[74] It goes without saying that a litigant cannot be permitted to take advantage of his own intimidatory actions to bring about a state of affairs, which he desires. Having said that the Courts duty is to reach a decision which is in the best interests of the children and it is therefore necessary to consider whether the views ultimately expressed by Ms Raethel and Ms Blackwells critique should not be relied upon for this very reason.

[75] Neither Ms Blackwell nor Ms Raethel were questioned as to whether they have a friendship. There is thus no evidence to support Mr BAs allegation that such a friendship exists and caused either expert to be impartial in this case. I observe however that New Zealand being such a small community it is. not uncommon for professionals in the same professional discipline to be friends but to have to exercise boundaries as between their personal and professional relationships. Simply put a friendship between experts does not necessarily mean that impartiality in the exercise of their professional judgment necessarily follows.

[76] Ms Raethel said in evidence [Notes of Evidence p 266 from line 11] that she knew Mr BA had had some contact with fathers groups at the time she undertook her assessment. She said but I think it was fairly peripheral, not particularly important and not something I had even noted at the time.

[77] After her report was filed what she described as a group of gentlemen and a lady or two dressed in clothes that disguised their faces in some cases protested outside her office for three quarters of an hour. It was not until late February 2002 that she saw a photograph of the protest which shows Mr BA as one of the group.

[78] I am satisfied that she could not have been in any way affected in her assessment process by the protest when in fact it had occurred after her report was filed.

[79] I accept Ms Blackwells evidence [Notes of Evidence 332-338] that she did not know Mr BA nor made any connection between the protest outside her office on 14 February 2002 and Mr BA before she provided her critique to the Court. I am therefore satisfied that like Ms Raethel her critique process was not affected by Mr BAs protest. Page 737; [2002] NZFLR 721

The childrens needs

[80] Both children and J in particular have had problems in their development, both socially and educationally. Both Mr BA and Mrs CA feel that the children have made some progress. They are still however extremely vulnerable. It is important that the childrens development continues and any changes to their routines must not disturb or undermine the progress made.

[81] Both children wish to spend more time with Mr BA Those wishes are expressed against a regime of regular time with him 1996 - 2000 and the interruptions to that time since then. They need to continue to spend time with both Mr BA and Mrs CA

[82] J and A need to be relieved of the stress and pressure they have been under because of these proceedings and in particular because of the way in which things they say have been interpreted and used by Mr BA and Mrs CA against one another. They need to be relieved of any pressure to act as either parents agent. As I previously said the greatest risk they need to be protected from is the parental conflict.

[83] As counsel for the child submitted, we must deal with these childrens individual needs. These children will not be assisted by an overly theoretical approach that overlooks the practical aspects of the childrens lives. They need a practicality based response to the shared care arrangements.

[84] J and A need the certainty of knowing that when they are to spend time with Mr BA this time will not be eroded or denied by Mrs CA They also need to know that when they are supposed to be in the care of Mrs CA her time with them is not undermined by Mr BA and that Mr BA will not tolerate their defiance if they run to him and will actively support their return into the care of Mrs CA

[85] The children need simplicity in the arrangements given the woeful level of communication between Mr BA and Mrs CA

[86] J and A need any major decision making concerning their residence to be one made either jointly by the parents or by a Court. The Court needs to make an order ensuring their continued residence in Auckland in the district of Manukau so that any shared parenting orders are not subverted by either guardian acting unilaterally to alter their residence.

[87] The children need sufficient blocks of time with each parent so their relationships can have a normalcy about them. So that each parent contributes not only to the pleasurable aspects of parenting but also the less pleasurable aspects of discipline and limit setting. This will become of increasing importance in J and As teenage years.

[88] Short and frequent transitions of care from one parent to the other is not an option in this case because of the commensurate increase in opportunity for conflict and confusion that such a regime would engender.

[89]

J and A need to be free of the pressures of litigation.

What are the childrens wishes having regard to their age and maturity and any influences impacting on them

[90] Whilst Ms Raethel has said that the children presented as being so highly programmed that one could effectively discount their wishes or Page 738; [2002] NZFLR 721 any other wishes coming from them directly, she also indicated that she had no doubt that like many children, they want to see both parents, and that given the disparity between their two homes in respect of material benefits, she expected that the children would have expressed wishes to see Mr BA even without major pressure upon them.

[91] The pictograms Mr BA schooled the children on cued the children into making negative comments about Mrs CA Aspects of the childrens presentation at interview with Ms Raethel were highly consistent with those observed in negatively programmed children. When asked what they had come to talk about, they both individually launched into a list of Mrs CAs faults. They attributed these to Mr BA Ms Raethels data indicated that Mr BAs complaints about Mrs CA at interview were mirrored by the children at their interviews.

[92] Therefore whilst the childrens expressed wishes may be reflective of their true feelings, taking them at face value is not advisable. The Court must examine all the evidence to ascertain their uncorrupted wishes if indeed it can.

[93] Importantly both parents accept that the children had been expressing to each of them that they wanted to spend more time with Mr BA Mrs CA said in evidence that the children had been expressing a wish to stay with Mr BA at least once a month in recent times although she attributed that solely to the pressure Mr BA had put them under since November 2000.

[94] The evidence at page 97/98 Notes of Evidence describes the process of an emerging expression by J in 2000 to the effect that he wanted to spend more time with his father. This was before the employment of pictograms had potentially corrupted the reliability of those wishes being truly independent and against a background at that time of adequate and enjoyable access.

[95] I am satisfied that the children do genuinely want to spend time in the care of Mr BA despite the pressures he has placed on them to express wishes to that effect. I base that conclusion on:

(a)

Consistent reports over a 5 year time frame to that effect;

(b)

That both parents report that to be the case;

(c) Observations of Mr BA and his children at supervised access see Exhibit F to Mr BAs submissions of 12 October 2001;

(d)

Ms Raethels observations. Notes of Evidence p 269;

(e) Counsel for the childs submission that the children do wish to spend more time with Mr BA

[96] Their wishes then however cautiously one approaches them are in fact congruent with their needs as I have identified them to be.

What regime of shared care will be least detrimental to these children?

[97] I consider the regime suggested by Mr BA [set out in paragraph 4] to be too complicated in these circumstances. Simplicity and certainty must dictate the regime. I also consider Mrs CAs views as to the appropriate amount of time the children should spend with Mr BA as being unduly restrictive. I do not consider a reversal of custody would Page 739; [2002] NZFLR 721 benefit these children because of their needs as I have identified them but I do consider that the orders need to be scaffolded with robust enforcement provisions so that the shared parenting regime will be adhered to and not undermined by Mr BA and Mrs CA

[98] I do not favour unrestricted telephone contact for these children. It is likely to be overly intrusive in both households and it is very likely to promote more conflict and distress for the children because it would provide both parents with yet another device to use to apply pressure to these children.

[99] Neither Mr BA nor Mrs CA saw advantages in the Court issuing warrants for the enforcement of access. But both saw advantages in and consented to an order that their access to the Court be restricted by their needing to obtain leave from the Court to the filing of any application for variation or suspension of access. I consider that approach to benefit the children. It will give them a period of time free from investigation by expert witnesses and pressure from Mr BA in particular to advance the cause he considers appropriate. It will limit situations such as that which occurred in late 2001 where Mrs CA erroneously considered she had justification to unilaterally suspend access. I also consider as an added precaution that any such application should be made to me as the Judge who is now intimately acquainted with the ten year history of this matter.

Whether the non-molestation order made in 1992 should be discharged or not?

[100] Mr BA seeks a discharge of the order made on 8 April 1992. He relies on the fact that Mrs CA acknowledged she no longer feels her physical safety is at risk by Mr BAs actions. She relies on his verbal abuse of her and the destabilisation of her emotional equilibrium as a result Notes of Evidence pages 147, 148 and 212. Mr BAs further concern is that if it is not discharged Mrs CA and her network of wellmeaning but deeply partisan associates will use this as evidence of his continuing dangerousness.

[101] The Court has power under s 47 of the Domestic Violence Act to discharge a protection order. No guidance is given in the section as to the basis on which that power is to be exercised but it must be remembered that in assessing any ongoing need that s 14(5) of the Domestic Violence Act lays down a subjective not objective test. Regard must be had to Mrs CAs perceptions.

[102]

Relevant considerations must include:

(a)

Length of time since order made;

(b)

Lack of any behaviour bringing order into play;

(c)

Mrs CAs reactions to Mr BAs application to Court;

(d)

Mr B A.s behaviours;

(e)

Amount of ongoing contact between the parties and nature of that contact.

[103] To continue the order must be necessary. To be necessary means that an order means cannot be done without having regard to the purposes of the statute. Page 740; [2002] NZFLR 721

[104] The onus of proof is on Mrs CA to establish on the balance of probabilities that an order is necessary for her protection. The evidence must support her subjective perception however the reasonableness of that perception must be assessed objectively by the Court.

[105] It is now almost ten years since the order was made. It has never been employed. I have considered the submissions made by Mrs CAs counsel at pages 5 and 6. The physical violence was contextual to the breakdown of the parties marriage and has not occurred since. But given the shared parenting orders I am about to make and the fact that Mrs CA does not now have a telephone Mr BA can access I consider on balance that a protection order is no longer necessary as there is limited occasion when Mr BA could abuse Mrs CA and I share the concern referred to in paragraph [100] that in fact it could be injurious to the children for discussion to take place in front of them concerning its continuance and therefore the continued dangerousness of the father. That is a risk given the history of the matter.

[106] Nothing of course precludes her from reapplying in the event that Mr BA takes advantage of the new situation to verbally abuse her at changeover of care.

Restriction of publication

[107] I remind the parties of the restriction of publication provision of the Guardianship Act.

[108]

Section 27A states:

27A Restriction of publication of reports of proceedings (1) No person shall publish any report of proceedings under this Act (other than criminal proceedings) except with the leave of the Court which heard the proceedings.

[109] For my part I can see no reason given the lengths I have gone to in the decision to eliminate detail that would identify the parties and the children as far as the general public are concerned why this decision ought not to be published. I have however received no submissions on the point and cannot safely determine the matter in the absence of submissions.

[110] Given the express and repeated views of the organisation of which Mr BA is a member to the effect that the Family Court operates behind a veil of secrecy to sequester its corrupt processes it is important that the option for publication be available so long as publication is not damaging to the children.

[111] Neither party has made application for leave to publish but I reserve leave for them to make application to me for such an order. Any such application will need to be filed within 21 days of todays date.

Orders

[112] The children shall not be removed from Auckland, Manukau District to live elsewhere without further order of the Court.

[113] There is to be a shared custody order. J and A are to be in the care of Mr BA at the following times: Page 741; [2002] NZFLR 721

(a) Every second weekend from after school Friday to start of school Monday; commencing 17 May 2002.

(b)

One week in each school term holiday which will commence at:

(i) 3.00 pm on the last Friday of term if Mr BA has the care of the children for that weekend under the alternate system, or;

(ii) 3.00 pm on the second Friday of the holidays if Mr BA has the care of the children for that weekend under the alternating system and in each case the period of care will end on the following Friday at 5.00 pm.

(c)

Christmas school holiday access:

(i) In all even numbered years commencing 2002 from 3.00 pm on the Friday closest to Christmas Eve 5.00 pm to Friday 14 days later;

(ii) In all odd numbered years commencing 2003 from 3.00 pm on the first Friday after New Years Day to Friday 5.00 pm 14 days later.

(d) For a period of up to 3 hours on each of the childrens birthdays when those birthdays occur on weekdays when the children are in the care of Mrs CA

[114] J and A are to be in the care of Mrs CA at all other times unless otherwise agreed between Mr BA and Mrs CA

[115] The alternating weekend period of care set out in 2(a) is not to operate during the Christmas school holidays between the last Friday before Christmas and the Friday 14 days after the first Friday after New Years Day.

[116] During the school term time Mr BA is to pick up the children from school and deliver them back to school.

[117] For all pick-ups and drop-offs outside school term time, Mrs CA is to deliver the children to Mr BA at the start of a care period and Mr BA is to return the children to Mrs CA at the end of that care period.

[118] Mr BA and Mrs CA are to keep a communications book which is to travel with the children between Mr BA and Mrs CA, such book to cover such matters

as:

(a)

Health including medication and treatment;

(b)

Extra-curricular commitments;

(c)

School activities and events.

[119] Mr BA and Mrs CA are to ensure that the children continue to attend their present extra curricular commitments during the individual periods of care and any future extra curricular activities are not to be undertaken without the parties agreeing first.

[120] No further application for variation of shared parenting orders without the leave of the Court for a period of two years.

[121] Any such application is to come before me if that can be accommodated by the Registry.

[122]

The non-molestation order dated 8 April 1992 is hereby discharged.

Page 742; [2002] NZFLR 721

[123] I reserve leave to any party to make application for leave to publish this decision within 21 days of todays date.

[124]

Costs are reserved.