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«USING s133 CARE OF CHILDREN ACT 2004 REPORTS FOR THE “PROPER DISPOSITION OF AN APPLICATION” HELPING PARENTS MAKE SOLOMONIC DECISIONS Alice Garner ...»

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USING s133 CARE OF CHILDREN ACT 2004 REPORTS FOR THE “PROPER

DISPOSITION OF AN APPLICATION”

HELPING PARENTS MAKE SOLOMONIC DECISIONS

Alice Garner

A dissertation submitted in partial fulfilment of the Degree of Bachelor of Laws (with

Honours) at the University of Otago – Te Whare Wananga o Otago

October 2012

ACKNOWLEDGEMENTS

To Mark Henaghan, for your enthusiasm, guidance, and for inspiring my passion for Family Law.

To Donna Buckingham, for redirecting my focus when I was well off-track.

To Dad, for sparking my interest in the work you do as a specialist report writer, and for providing me with an ‘insider’s opinion, and to Mum for your unwavering support, phone calls and care packages.

To Georgie for your hours of proofreading and genuine offers to help out, and to all my friends, for the coffee breaks, lunch dates, Skype dates and funny you-tube links. Thanks especially to my flatmates for never failing to make me laugh.

II “Bring me a sword, divide the living child in two, and give half to one, and half to the other.” King Solomon’s words resonated around his chambers as two women, both claiming to be the mother of the same baby boy, stood before him.

On hearing these words the first mother dropped to her knees and begged: "O my lord, give her the living child, and by no means kill him!” The second mother’s words did not echo the pleas of the first as she declared instead “Let him be neither mine nor yours, but divide him."

Their reactions told the king all he needed to know. "Give the first woman the living child," he ordered, "and by no means kill him; she is his mother."

Words adapted from the Hebrew Bible 1Kings 3:16-28 III Table of Contents INTRODUCTION

PART ONE

CHAPTER ONE: WHEN IS A PSYCHOLOGICAL REPORT ‘NECESSARY FOR THE PROPER

DISPOSITION’ OF AN APPLICATION?

I. A literal interpretation of s133

When is a report ‘Necessary’?

What is a ‘proper disposition of an application’?

II. Reading s133 in light of its surroundings

III. Comparing s133 with the wording of s178 Children Young Persons and their Families Act 1989 (CYPF Act)

IV. Comparison with the Australian Family Law Rules 2004

V. Interpreting s133 in light of its purpose

The principles and purposes of the COCA

The ethos of the Family Court

VI. The most likely interpretation of s133

CHAPTER TWO: THE PSYCHOLOGIST AND THE s133 REPORT: HOW THEY ARE

VIEWED AND USED IN PRACTICE TODAY

I. Treating the report as expert evidence for court

II. Limiting the role of the report to safeguard the judicial function

CHAPTER THREE: AN OVERVIEW OF THE HISTORICAL USE OF THE PSYCHOLOGICAL

REPORT

I. The traditional approach: safeguarding the judicial function

–  –  –

III. The creation of the Family Court and s29A of the Guardianship Act 1968............... 17 IV. The 2003 Law Commission Review and the Care of Children Act 2004

PART TWO

CHAPTER FOUR: WHAT INFORMATION AND ASSISTANCE CAN THE REPORTS PROVIDE

THE PARTIES?

I. Educating the parties

II. Promoting conciliation

III. Ascertaining, explaining and commenting on the views of the child

IV. Recognising the limitations of the report

CHAPTER FIVE: CURRENT HINDRANCES IN THE USE OF THE REPORT

I. No forum to discuss the assessment process or the report’s findings

II. Adversarial responses to the report

III. Making suggestions or giving opinions on the ‘ultimate issue’

IV. Psychological evaluations of parents

PART THREE

CHAPTER SIX: DEVELOPING A FRAMEWORK FOR THE USE OF s133 REPORTS.............. 45 A framework for the future use of s133 reports

I. Discussion forums and settlement meetings

Providing a forum for discussion of the report

Implementing the discussion forums

Attending settlement meetings and mediation conferences

–  –  –

II. Conducting assessments on parents or re-framing s133

Allowing separate evaluations of parents under the COCA

Re-framing the s133 report as ‘report on the family’

III. Encouraging psychologists to make suggestions and provide an opinion on the ultimate issue

CONCLUSION

Appendix One: Selected Legislation

Appendix Two: Practice Note for Specialist Report Writers

Appendix Three: Proposed new case tracks in the Family Court

BIBLIOGRAPHY

–  –  –

With the flick of a sword King Solomon made custody decisions look impossibly simple.

However in reality such disputes are often so fraught with complications that they would prove testing even for a man of Solomon’s wisdom. In a number of cases before the Family Court today not even the threat of a sword could produce the ‘right’ answer, as there is so often no such thing.

With no King to rely on, parents are responsible for making their own choices about the care of their children and decisions are often made amidst a mass of emotion, conflict, and uncertainty. Fortunately parents are not left alone in this task but are supported by a network of lawyers, judges, and Family Court professionals whose job it is to help them reach agreements in the best interests of the child. Psychologists, employed as specialist report writers under s133 Care of Children Act 2004 are a vital part of this team. Able to provide important information in the most convoluted of cases, the value of psychological reports is not to be overlooked.





However when one takes a closer look at the role and function of psychological reports concerns about the current process arise. It becomes apparent that the reports are not being used in the way they should or were initially intended to be, and as a result they are not assisting with the ‘proper disposition of applications’. It is this notion that will be developed throughout this paper.

Chapter one will examine the wording and purpose of s133 to illustrate that the original rationale for reports was that they would be used to educate parties and help with settlement. Chapter two will outline how, in conflict with their initial purpose the reports are currently being viewed primarily as a form of evidence for court. Chapter three will explain the way in which historical conventions have influenced the current judicial view before chapter four explores what function the reports can serve at prehearing discussions. In chapter five the current hindrances in the use of the report will be explored in depth, and chapter six will conclude by proposing a ‘where to from here’ model so that in the future s133 reports can truly be used to dispose of cases in the ‘proper’ way.

–  –  –

REQUESTING s133 REPORTS CHAPTER ONE

WHEN IS A PSYCHOLOGICAL REPORT ‘NECESSARY FOR THE PROPER

DISPOSITION’ OF AN APPLICATION?

In order to discuss the role and function of psychological reports it is necessary to begin

with an examination of s133 of the Care of Children Act 2004 (COCA), which reads:

S 133 Reports from other persons (1) This section applies to the following applications:

(a) an application for guardianship:

(b) an application for a parenting order (other than an application for an interim order about the

role of providing day-to-day care for a child):

(c) an application under section 105(1).

(2) If satisfied that it is necessary for the proper disposition of an application, the court may, 1 a) request a person whom the court considers qualified for the purpose to prepare a written cultural, medical, psychiatric, or psychological report on the child who is the subject of the application; or (b) direct the Registrar of the court to request a person whom the Registrar considers qualified for the purpose to prepare a written cultural, medical, psychiatric, or psychological report on the child who is the subject of the application.

(3) A cultural report on the child who is the subject of the application may address any aspect or aspects of that child’s cultural background (for example, that child’s religious denomination and practice).

(4) In deciding whether to request a report or to direct the Registrar of the court to request a report, the court must, if the wishes of the parties are known to the court or can be speedily ascertained, have regard to those wishes.

The phrase ‘necessary for the proper disposition of an application’ is of particular interest as it delineates the Family Court’s power to request a report. As the phrase is not defined in the COCA we must turn to statutory interpretation tools to help Emphasis added.

answer this question. The following examination will seek to define the phrase and ascertain when a report is in fact ‘necessary’ and what the legislator envisioned the ‘proper disposition of an application’ to be.

I. A literal interpretation of s133 When is a report ‘Necessary’?

The plain meaning of necessary is ‘essential’ or ‘requisite’. The Court in K v K has held that ‘necessary’ has a higher threshold than desirable,2 and Principal Family Court Judge Peter Boshier has since suggested an even higher threshold of “demonstrably necessary”.3 It is therefore clear that ‘necessary’ is to be construed as a high standard.4

What is a ‘proper disposition of an application’?

The literal meaning of disposition is a ‘final settlement’, and a parenting or guardianship application can be settled a number of ways: by agreement between the parties or by a court order.5 The question is which type of disposition is the ‘proper’ one – for a judge needs to know what the preferred outcome is before they can consider whether a psychological report will be ‘necessary’ to help achieve it.

The text of s133 alone does not provide the answer.

II. Reading s133 in light of its surroundings Sections 133, 134 and 135 are the sections under the COCA that relate directly to specialist reports.6 Under s133 the discretion to request a report is reserved for the Court, and under s134(2) the Court is able to prevent a parent from reading the K v K [2005] NZFLR 28 at [53].

Peter Boshier, Principal Family Court Judge “Speech to the Auckland Family Courts Association” (21 April 2004). Available at: http://www.justice.govt.nz/courts/family-court/publications/speeches-andpapers/archived-speeches/speech-of-principal-family-court-judge-peter-boshier-to-the-auckland-familycourts-association at 8.

4 Note the Ministry of Justice’s proposals to amend the legislation so that the Court “may only request specialist evidence where it is necessary to decide the case and cannot be obtained from any other source”; see Family Court Review Cabinet Paper “Family Court Review Paper Proposals for Reform” (2012) at [120.1].

5 A parenting agreement can occur at any stage of the proceedings after conciliation, mediation, or negotiation. Failing an agreement disposition can occur via a court issued parenting order.

report.7 Under s134 the Court may also call the psychologist as a witness and the parties may offer evidence on issues in the report. The accumulation of these factors could infer that a ‘proper disposition’ is a parenting order and that the role of the report is to provide expert evidence at a hearing.

On the other hand, the court cannot act in isolation when making the decision to request a report as s133(4) states that the wishes of the parties ‘must’ be taken into consideration. Furthermore s135 provides that the cost of the report lies firstly with the parties. This could be read as implying a possessory interest and a right to use the report in settlement should they desire.

Evidently reading these three sections together does not clarify what a ‘proper disposition of an application’ is or when a report should be considered ‘necessary’.

III. Comparing s133 with the wording of s178 Children Young Persons and their Families Act 1989 (CYPF Act) S178 CYPF provides the Court with a similar power to that under s133 COCA.

However under s133 the Court may ‘request’ a report rather than ‘order’ one as is their power under s178.8 This is a contradistinction worth analysing. ‘Ordering’ a report denotes an authoritative direction or instruction to provide the Court with information. ‘Requesting’ a report however appears to suggest something less adversarial, as one would ‘order’ an evidential report but is more likely to ‘request’ assistance. Following this reasoning it is submitted that by using the term ‘request’ Parliament anticipated that psychological reports would be requested by the Court to help assist the parties in the pre-hearing stage.

Furthermore, under s178(1) it states that the Court may order a psychological report to be made “available to the court in respect of any child or young person”9 Full sections attached in appendix.

The Court can prevent a parent reading the report “if the Court is satisfied that information in the report would, if provided directly to that party, place the child concerned or another person at risk of physical abuse, sexual abuse, or psychological abuse.” 8 Children, Young Persons, and their Families Act 1989, s178(1)(a).

9 Emphasis added.

but s133 does not contain a similar statement. This could suggest that the s133 report was envisioned for a wider audience than the Court.

Therefore when comparing s133 COCA with s178 CYPF Act it appears that the ‘proper disposition’ under s133 is a settlement by the parties, and that the report was intended to assist with this.



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