C v G

[2012] NZHC 1271

NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO

11D OF THE FAMILY COURTS ACT 1980.  FOR FURTHER INFORMATION PLEASE SEE THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV-2012-470-000010 [2012] NZHC 1271

IN THE MATTER OF     the Children, Young Persons, and Their

Families Act 1989

BETWEEN  C Appellant

AND  G

First Respondent

AND  DD AND GD

Second Respondents

ANDTHE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT

Third Respondent

Hearing:         7 June 2012

Appearances: Appellant in Person

T Brown for Second Respondents
T Hallett-Hook for Third Respondent

Judgment:      8 June 2012

JUDGMENT OF VENNING J

This judgment was delivered by me on 8 June 2012 at 12.45 pm, pursuant to Rule 11.5 of the High

Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Beach Legal, Mt Maunganui

Crown Law, Wellington

Copy to:            A H Brown, Tauranga

R J Collis, Auckland

The appellant

C V G HC TAU CIV-2012-470-000010 [8 June 2012]

Introduction

[1]      Mr C appeals against the decision of Judge Wills in the Family Court at Tauranga dated 3 November 2011 in which the Judge directed the continuation of a support order under s 91 of the Children, Young Persons and Their Families Act

1989 (CYPF) relating to N.

[2]      Mr  C  seeks  an  order  setting  aside  that  decision  and  directing  the  third respondent, (the Ministry) to convene a family group conference to arrive at a new plan relating to the care of N with the input of all relevant parties, including himself.

[3]      The first respondent has not taken any steps in relation to the appeal.  Given the nature of the appeal there was no requirement for the attendance of counsel for the child.

[4]      The Ministry accepts the Family Court did not have jurisdiction to continue the existing s 91 order but submits that it would be inappropriate to refer the matter to  a  family  group  conference.    Counsel  for  Mr  and  Mrs  D  concurs  with  the Ministry’s position on those issues.

Background

[5]      N was born on 10 January 2005.  She is the daughter of Mr C and Ms G.  N is currently living in Western Australia in the care of her paternal aunt Mrs D and her husband Mr D.  N has been in the care of Mr and Mrs D since shortly after her birth.

[6]      On 8 February 2005 a declaration was made that N was in need of care and protection.  On 29 April 2005 Judge Fitzgerald made the following additional orders:

(a)       a custody order in favour of the Chief Executive under s 101 of the

CYPF Act;

(b)an order appointing the Chief Executive an additional guardian under s 110(2)(b) of the Act;

(c)       a restraining order against Mr C under s 87 of the Act.

[7]      In 2007 Mr C applied to discharge or vary the s 101 custody order to require N to be placed with him.  The application was rejected by Judge Neal in the Family Court.   Mr C  appealed  to  the High  Court.    Lang  J  dismissed  the appeal.    He considered Judge Neal was entitled to conclude that N remained in need of care and protection  and  that  it  was  essential  for  her  wellbeing  that  the  original  orders remained in place.   Lang J considered it would be irresponsible for any Court to direct that N be placed immediately in the fulltime care of her father.   The Judge urged Mr C to co-operate with the Ministry and N’s caregivers to ensure contact occurred in a civilised manner.

[8]      Unfortunately Mr C failed to co-operate. As a consequence, on 16 December

2007, the Chief Executive terminated contact between N and Mr C.  On 1 September

2008 Mr and Mrs D moved to Australia with N. They have lived there ever since.

[9]      In 2010 Mr and Mrs D applied to have N placed in their custody and for orders appointing them additional guardians and granting leave for N to live with them in Australia permanently.

[10]     On 2 June 2010 Judge Maude in the Family Court at Tauranga granted the applications and made the following orders:

discharging the appointment of the Chief Executive of the Ministry as an

additional guardian of N;

discharging the s 101 order granting the Chief Executive custody of N;

appointing Mr and Mrs D additional guardians of N;

granting Mr and Mrs D leave to apply for a parenting order granting them day to day care of N;  and consequently granting them day to day care of N

including the condition she reside with them in Australia;

granting N’s mother G contact with N on certain specified conditions;

directing the Ministry to provide support for N pursuant to s 91 of CYPF to ensure that the contact directed between N and her mother occurred.   The order was also for the purpose of providing contact between Mr C and N by way of the receipt of cards from Mr C for N and then their on-forwarding to

N if they were appropriately worded for receipt by her.

[11]     In addition Judge Maude called for a new plan from the Ministry to set out how it proposed to put into effect the orders made and stated:

Thereafter, I would envisage review of plans on a six monthly basis to be scheduled to occur in February and August of each year to ensure that there is ample time between plan and the next scheduled face to face contact between N and her mother.

[12]     Mr C appealed against the decision of Judge Maude.  On 10 February 2011

Brewer J dismissed the appeal.

[13]     In the meantime, on 14 July 2010, the Ministry submitted a plan to assist the implementation  of  the  support  order.    On  17  August  2010  Judge  Geoghegan reviewed  the plan and  approved  it.   He directed the s 91 support order was  to continue and that the plan was to be reviewed no later than six months from that date.

[14]     On 30 March 2011 Judge Geoghegan again approved the reviewed plan dated

3 March 2011.  He directed the plan be reviewed no later than 30 September 2011.

[15]   The Ministry prepared a revised plan dated 30 September 2011 which recommended continuation of the support order and restraining orders.  The revised plan then came before Judge Wills on 3 November 2011.[1]

[1] Mr C did not attend the hearing but as the Judge noted, Mr C had filed an objection to both the plan and the continuation of the order

[16]     Judge Wills made the following orders:

(a)      the plan is accepted;

(b)the s 91 support order is to continue for at least a further 12 months or until the next review;

(c)       the restraining orders against the parents are to continue;[2]

[2] The restraining order made against Mr C on 29 April 2005 records that it remains in full force and effect until the child or young person attains the age of 20 years or sooner marries or is varied or discharged by the Court.

(d)      the plan is to be reviewed within 12 months.

The appeal

[17]     By  his  amended  notice  of  appeal  Mr  C  appeals  against  the  part  of  the judgment providing for continuation of the support orders under s 91 of CYPF.  Mr C makes the point that a support order under s 91 may not exceed 12 months.

[18]     Mr C submits that if the Court was to make a fresh support order under s 91 then, in accordance with s 128 the Court was required to obtain a plan prepared in accordance with ss 129 and 130.  Mr C submits that there should be a family group conference held to give an opportunity for N’s interests to be considered in respect of her biological family, her father, mother and grandparents and seeks a direction to that  effect.    As  a  parent  he  would  be  entitled  to  attend  such  a  family  group conference:  s 22(1)(b) CYPF.

[19]     Mr C notes that N is now seven years old.   He says he believes he can provide a positive role in her life and that she should have contact with her grandparents.

[20]     During the course of the hearing, Mr C took the opportunity to reiterate his

desire to be part of N’s life.  He says he can afford to care for her.

Decision

[21]     Despite the provisions of CYPF that provide for the review of plans, s 91(1) expressly provides that a support order may not be made for a period exceeding 12 months.  The order made by Judge Maude would have expired on 3 June 2011 at the latest.

[22]     There was no jurisdiction for the Family Court to extend the existing support order past 3 June 2011.  The Court cannot rely on the review provisions to extend the s 91 support order past its expiry date.[3]   After the order expired on 3 June 2011 the Ministry should have provided a report to the Court under s 99 CYPF.  On receipt of that report the Court would then have been in a position to determine what other orders might be appropriate and also whether a fresh support order should have been made.

[3] Section 134(3).

[23]     However, once the support order had expired on 3 June 2011 there was no jurisdiction to extend or continue it.  The Court was required to consider whether a fresh support order was required.

[24]     For those reasons I accept Mr C’s submission, as accepted by the Ministry that the Judge had no jurisdiction to continue the current s 91 support order at the hearing on 3 November 2011.

[25]     However, that is not an end of the matter.  The issue is what further order or direction, if any, this Court should make as a consequence. As noted, s 99 directs the person providing the support, in this case the Ministry, to furnish a report to the Court  on  the  expiry  of  the  support  order  containing  an  assessment  of  the effectiveness of the order and such other information as may be considered relevant. That process should now be followed.  That report should be provided.  I understand from counsel for the third respondent the report is in the process of preparation.  In

the circumstances no order is required in relation to that.

[26]     The  support  order  provided,  inter  alia,  for  financial  support  for  contact between N and her mother and for Mr and Mrs D’s reasonable legal costs.   Mr Hallett-Hook has confirmed that in the absence of a s 91 support order, s 389 can be applied to enable the Ministry to provide appropriate financial assistance in the interim, pending further review in the Family Court.

[27]     I decline Mr C’s request that this Court direct that a family group conference be held.  I note that whether a family group conference will be directed through the review process under s 137(1)(c) is discretionary.   In the present case I accept the submissions that it would not be appropriate to direct such a conference for the following reasons:

(a)       the  effect  of  Judge  Maude’s  orders  is  that  N’s  substantive  care

arrangements are now dealt with under the Care of Children Act;

(b)      the first and paramount consideration is the welfare and interests of N.

N’s  welfare  and  best  interests  do  not  support  the convening  of  a further family group conference:

(i)Mr C has not addressed Judge Maude’s order that no further applications by Mr C for contact with N should be entertained until Mr C has produced a professional opinion saying he had addressed the psychological issues identified by the Court;

(ii)if Mr C wishes to revisit the issue of contact this should be done under the Care of Children Act given the extant orders under that Act;

(iii)a CYPF Act family group conference should not be used to circumvent the requirement or to revisit issues that have been otherwise resolved.

(c)      The reality is that, in any event, given Mr C’s strong views about N’s placement with Mr and Mrs D a family group conference is likely to be pointless exercise.

(d)The  Family Court  has  before  it  a  number  of  applications  by  the second respondents in which the issues of further contact between N and her parents will be addressed.   Mr and Mrs D have recently

applied for:

Result/directions

variation of the contact order with Ms G;

removal of Mr C as guardian;

a change of the child’s surname.

[28]     The  appeal  is  allowed  to  the  extent  that  the  orders  approving  the  plan, providing for its review and purporting to extend the support order are set aside.  For the avoidance of doubt I record that the restraining order made against Mr C on 29

April 2005 remains in effect on the terms set out in that order.

[29]     All remaining issues are to be dealt with in the Family Court.

[30]     The Family Court has a judicial conference scheduled to deal with the further timetabling and directions in relation to those applications on Tuesday 19 June 2012. That is an appropriate time for that Court to make whatever further directions may be appropriate.

[31]     I make no order for costs.

Venning J