High Court rules psychological report essential in parenting dispute over child with complex needs

The child came from a broken home, where his parents' relationship was marked by conflict and mistrust

High Court rules psychological report essential in parenting dispute over child with complex needs

The High Court has recently ruled that a psychological report is necessary in a parenting dispute involving a 15-year-old child with complex needs.

The case of Shirley v Richmond [2023] NZHC 913 involves a parenting order made in the Family Court for the parties' 15-year-old son. Since their separation, the parties have struggled to parent the child collaboratively. The parties' relationship was also marked by conflict and mistrust, which affected the child with complex needs.

The Family Court, in a final judgment, found that the child's allegation that his father assaulted him was untrue. The family court judge rejected a renewed request by the child's lawyer for a psychological report under s. 133 of the Care of Children Act 2004. The judge ruled that the mother was unlikely to facilitate the child's relationship with his father, and further delay in "rekindling care and contact" with his father was not in the child's best interests. The judge also extended the parenting order's duration until the child's 18th birthday.

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The mother challenged the parenting order on the ground that the judge was allegedly wrong to rule that a psychological report was unnecessary. She argued that the child showed an adverse reaction when advised of the family court's decision, and he refused to have contact with his father.

The parties elevated the case to the High Court, asking the court to resolve the issue of whether the family court was wrong to conclude that a psychological report was unnecessary, and if so, was that error material to its decision.

The High Court noted that the child's IQ placed him within the very low range compared with other children his age. The high court found that the child is "markedly intellectually vulnerable and likely is emotionally vulnerable due to his having grown up with chronic parental conflict and distrust." As a result, the court could not place any significant weight on his expressed views.

The High Court also noted the Family Court judge's ruling that the proceeding should not be prolonged in order to obtain a psychological report. The reason was that this would "simply extend the parental distrust and uncertainty with negative impacts on the child.

Elements of directing the preparation of psychological report

The High Court explained that under s. 133 of the Care of Children Act, the court may order the preparation of a psychological report if the court is satisfied that:

  1. the psychological report is necessary for a proper decision on the case,
  2. the psychological report is the best available source of information, considering quality, timeliness, and cost of other sources,
  3. preparing the report will not cause undue delays,
  4. any delays caused by the report will not have an unacceptable effect on the child; and
  5. the court does not seek the report solely to ascertain the child's wishes.

A psychological report is essential

The High Court ruled that a psychological report is essential and that its absence was material to the parenting orders in the court below. The court noted that the primary reason the Family Court declined to order a psychological report was the impact of further delay in re-establishing contact between the child and his father. However, the court pointed out that despite the family court's order, contact had not been re-established in the intervening four months.

The court further noted that the order for the child to resume unsupervised contact with his father had caused the child distress. The court is satisfied that there is a real risk of harm to the child's mental well-being, and the well-being of his father and his family should contact be compelled under warrant. The court is satisfied that compelled contact would not be in the child's best interests. The court said that a psychological report would guide how a difficult relationship between the child and his father has come about and mechanisms to address the child's resistance to contact with his father.

The court also found that a psychological report is the best source of information needed, considering other sources' quality, timeliness and cost. The court acknowledged that the proceedings will be further delayed, but it will not have an unacceptable effect on the child, given that the child is unwilling to have any contact with his father.

Accordingly, the court directed the preparation of a psychological report.

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