Frye v Chief Executive of Oranga Tamariki Ministry for Children

[2022] NZHC 2976

NOTE: PURSUANT TO S 437A OF THE ORANGA TAMARIKI ACT 1989, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE

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IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CIV-2021-454-67

[2022] NZHC 2976

UNDER

the Oranga Tamariki Act 1989, s 341(2)

BETWEEN

KENDRA FRYE

Appellant

AND

CHIEF EXECUTIVE OF ORANGA TAMARIKI – MINISTRY FOR CHILDREN

Respondent

Hearing:

25 October 2022

Appearances:

Appellant in person, with “McKenzie friend” L Jackson and A Lyne for the Respondent

R Fuata’i Lawyer for the Child

Judgment:

14 November 2022

Reissued:

28 November 2022

JUDGMENT OF GWYN J

Introduction

[1]    In August 2020 the Family Court made substantive orders determining custody and guardianship arrangements for Jordan, who is the son of Ms Frye, the appellant.1

1      Chief Executive of Oranga Tamariki v Frye [2020] NZFC 6519 [2020 decision].

FRYE v CHIEF EXECUTIVE OF ORANGA TAMARIKI [2022] NZHC 2976 [14 November 2022]

In June 2022 the Family Court dismissed Ms Frye’s application to discharge those orders.2

[2]Ms Frye appeals that dismissal.3

Background

[3]    Jordan, the child at the centre of this proceeding, was born in 2012. The applicant (Ms Frye) is Jordan’s mother.

[4]    Jordan is the eldest of Ms Frye’s children. His younger brothers are Damian, Brett and Ed, born between 2015 and 2018.

[5]    Jordan and Damian are half-brothers. Jordan’s father died in 2014. Damian’s father is largely estranged, but Damian lived with his paternal grandparents from when he was six months old until he was returned to his mother’s care after the 2020 decision. Jordan lives with a caregiver in City A, where he was placed when he was four years old.

[6]Brett is a full brother of Damian. Brett and Ed are both in their mother’s care.

[7]    On 23 September 2014 Jordan was removed from Ms Frye’s care pursuant to a temporary care agreement entered into under s 139 of the Oranga Tamariki Act 1989 (Act). This followed seven reports to Oranga Tamariki, between June 2013 and September 2014, relating to Jordan’s safety and wellbeing in Ms Frye’s care. The reports related to Ms Frye’s mental health, her smacking of Jordan, bruising found on Jordan, and Ms Frye not complying with a safety plan.

[8]    Jordan was initially placed with a caregiver (Pat) and remained in her care for eight months pursuant to the temporary care agreement and then an extended care agreement. Jordan was cared for by Pat from September 2014 to August 2017 when he was transitioned into the care of Caroline on the basis that that placement would be

2      Chief Executive of Oranga Tamariki v Frye [2022] NZFC 5108 [2022 decision].

3      The Court has granted Ms Frye leave to appeal the 2020 decision out of time, insofar as it is necessary to consider the 2020 decision in order to consider the 2022 decision.

permanent.    Caroline  had  previously  been  Jordan’s kindergarten teacher.    Jordan remains in Caroline’s care with Pat providing after-school and respite care.

[9]    In March 2015 Jordan began overnight access visits with Ms Frye and her then- partner, Damian’s father. During an overnight visit in April 2015, Jordan was seriously injured. In April 2015 a report of concern was made by a doctor who examined Jordan. Jordan’s injuries were assessed by the Child Protection Team at the hospital and found to be “concerning for inflicted injury”.

[10]   On 7 May 2015 Oranga Tamariki applied without notice, and was granted, a temporary custody order and a declaration that Jordan was a child in need of care and protection. Jordan has remained in the custody of the Chief Executive of Oranga Tamariki (Chief Executive) since then. On 3 September 2015 a custody and additional guardianship order were made by consent.

[11]   On 7 August 2015 Ms Frye was charged with assault on Jordan and was convicted of that charge in May 2016. Ms Frye appealed the conviction which was quashed in August 2016. Although it was not determined who caused the injuries to Jordan, the Family Court accepted that Ms Frye did not cause the injuries.4

[12]   During this period, Ms Frye gave birth to Damian and Brett. Damian was removed from Ms Frye’s care five days after he was born and placed in the care of his paternal grandparents. Brett has remained in Ms Frye’s care since birth, initially under a support order, which was discharged on 28 August 2018.

[13]   On 14 March 2017 Ms Frye applied to discharge the custody and additional guardianship orders with respect to both Jordan and Damian. She sought their return to her care following the work she had undertaken to address the care and protection concerns.

[14]   In late 2018 Ms Frye had another child, Ed. Ed has remained in Ms Frye’s care since birth.

4 2020 decision, above n 1 at [8].

Current arrangements

[15]   The following court orders are in place in relation to Jordan. Both orders are in favour of the Chief Executive, under the Act:

(a)Section 101 custody order, dated 3 September 2015; and

(b)Section  110(1)(a)  &  (2)(b)  additional  guardianship  order,  dated  28 March 2017.

(the orders)

[16]The current access arrangements are:

(a)Ms Frye has supervised access in the second week of the school holidays; access is over two days for 2.5 hours per day; that time can increase for up to four hours if the supervisor has capacity to do so.

(b)Supervision is provided by the Open Home Foundation and access reports are provided at the end of each session. Caroline travels to City B with Jordan for the visits. Alternative arrangements are made if she is not available.

The decisions under appeal

[17]As noted, there are two relevant decisions.

The 2020 decision

[18]   Ms Frye’s application to discharge the orders was heard during an eight-day defended hearing in the Family Court, from 6 to 17 July 2020. Judge Moss dismissed the application with respect to Jordan, who has remained in the care of Caroline, but granted the application with respect to Damian. Damian returned to Ms Frye’s care in December 2020.5

5      2020 decision, above n 1.

[19]Judge Moss concluded:6

On balance, bearing in mind that the Court’s role is to discharge the care and protection orders if care and protection concerns no longer exist and therefore that the child’s wellbeing and interests are promoted, I consider that the discharge of the Oranga Tamariki orders will expose [Jordan] to a care and protection risk, because the risk that his mother cannot cope with parenting him fulltime, whether as one of three or as one of four, is tangible, well defined, based in some of the mother’s history and rendered more visible because if [Jordan] returned to his mother’s care, his loss in terms of a relationship with his foster mother would be profound. In this way, the Court places significant value on the quality of [Jordan]’s placement, and the reality that he carries with him the vulnerability which arises from adverse childhood experience summarised above.

[20]   Having come to that conclusion, the Judge declined to discharge the orders in relation to Jordan.

[21]   In relation to access, under a s 128 plan, Jordan was to have contact with his mother and brothers (who live in City B) every third weekend, for one week every school holiday, and three weeks during the Christmas holidays.7

The 2022 decision

[22] The contact regime referred to at [21] above was in place for several months, but on 12 March 2021 Oranga Tamariki received a report of concern from Ms Frye’s psychologist, Ms V. Ms V reported emotional harm being caused to Jordan by Ms Frye during contact. As a result of this and of Jordan’s individual counselling treatment, Ms Frye’s access with Jordan was limited to the supervised access detailed at [16] above.

[23]   On 8 October 2021 Ms Frye filed an application for access. On 20 December 2021 Ms Frye also filed a notice of intention to appear, opposing the s 128 plan that Oranga Tamariki sought to be approved for Jordan. Ms Frye considered the plan should provide for Jordan to return to her care, when, in her view, the plan was made on the basis that there was no realistic prospect of Jordan’s return home.

6 At [198].

7      At [188]-[190].

[24]   On 12 October 2021 Ms Frye also filed a notice of appeal in this Court appealing the 2020 decision. Judge Moss heard Ms Frye’s applications on 24 May 2022 in the Family Court. On the morning of the hearing Ms Frye made an oral application to discharge all orders under the Act. In her judgment of 20 June 2022, Judge Moss dismissed that application.8 The Judge stated, “[t]here is no new evidence which would lead to a different conclusion”.9

Approach on appeal

[25]   This is an appeal under s 341 of the Act. It is a general appeal by way of rehearing.10   This Court must make its own assessment of the merits.11    That means  I must come to my own conclusion, based on the evidence heard by the Family Court (and any further evidence admitted on appeal).

[26]   It is for Ms Frye, as the appellant, to persuade this Court to reach a different conclusion than the Family Court.12 This Court can take into account any particular advantages enjoyed by the trial court,13 including the court’s assessment of witnesses,14 and any specialist expertise held by that court.15

Further evidence

[27]   At the hearing before me Ms Frye sought to introduce further evidence, in the form of two “access reports” and a text exchange.   The access reports relate to     Ms Frye’s access to Jordan on 12 October and 13 October 2022 and were prepared by her friend, Ms T, who was present during the access. Ms Frye says the evidence is relevant because the access reports, taken together with evidence about the three-week period over the Christmas holidays 2020/2021 when Ms Frye had all four of her boys with her, shows her ability to cope with all of her children. Ms Frye says the reports and the texts also demonstrate that her social worker did not supervise the access on

8      2022 decision, above n 2.

9 At [26].

10     Oranga Tamariki Act 1989, s 346; High Court Rules 2016, r 20.18.

11     Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [31]-[32].

12     M v Chief Executive of Oranga Tamariki [2019] NZHC 717 at [47].

13 At [48].

14     Green v Green [2016] NZCA 648 at [31].

15     D v S [2003] NZLFR 83 at [19]; SLB v Ministry for Children, Oranga Tamariki [2020] NZHC 1129 at [29]; MC v Chief Executive of Oranga Tamariki [2020] NZHC 50 at [16].

12 and 13 October, from which the Court can infer that the social worker did not think supervision was required.

[28]   Ms Jackson for the Chief Executive and Ms Fuata’i, lawyer for the child, opposed the introduction of further evidence. They say the issue of further evidence on appeal was previously considered by Cooke J, in the context of an application by the Chief Executive to adduce further evidence, which was opposed by Ms Frye. Ultimately, the Chief Executive did not pursue the application.

[29]   The respondent and the lawyer for the child submit that, if this Court were to uphold Ms Frye’s appeal, then the appropriate course would be to remit the matter back to the Family Court for rehearing. At that point, the Family Court could receive any further, updating evidence, from all parties.

[30]   I indicated to Ms Frye my preliminary view that it was not appropriate to introduce further evidence at this stage. Having considered the evidence put forward, I now confirm that view. The evidence post-dates the decisions appealed from. To that extent it is not directly relevant to the issues I have to consider. Nor have the respondent and the lawyer for the child had an opportunity to respond to it, as they might have done if Ms Frye had made her application earlier. In the absence of any response to the proposed evidence, the Court cannot adequately assess the weight to be placed on it.

[31]   I agree with counsel that the material may be relevant if the case was to be remitted back to the Family Court. It might also be relevant to the preparation of the next s 128 plan, currently scheduled for November 2022.

Discharge of orders under the Act

[32]   An application to discharge an order is made under s 125 of the Act and the Court has the powers provided in s 127.

[33]   Section 127 provides that the Court has a broad jurisdiction to vary or discharge orders or conditions, substitute new ones and make new orders and conditions in

addition to the existing order, whether or not it varies the existing order or varies or discharges any existing conditions.

[34]   Any exercise of the powers under s 127 must be consistent with the statutory purposes and scheme,16 and the paramountcy principle in s 4A(10) of the Act, that the wellbeing and best interests of the child are to be the first and paramount consideration.

[35]   Those factors that constitute “child wellbeing” are specified in ss 5 and 13 of the Act.

[36]   In an application to discharge orders, the applicant has the onus of establishing that circumstances have changed such that, if the orders are discharged, the child will not be in need of care and protection.17

[37]   Section 127 itself does not provide any guidance for the Court as to factors that may be relevant to the exercise of the discretion and there is no appellate level authority on the correct approach to the discharge of orders under ss 125 and 127 of the Act. The principal authority on discharge of orders under s 127 is MEM v SBN.18

[38]   In MEM, Judge M A MacKenzie reviewed the cases where a discharge of orders had been sought and noted a consistency of approach to the exercise of the discretion. Judge MacKenzie formulated a three-tier approach:19

(a)consider the original care and protection concerns;

(b)consider the child’s current situation, including the presence or absence of care and protection concerns; and

(c)assess the consequences for the child if protective orders are no longer in place.

16     Director-General of Social Welfare v L [1989] 2 NZLR 314 (CA) at 318.

17     PT, Re [2012] NZFC 8516 at [103] and [125].

18     MEM v SBN FC Rotorua FAM-2001-019-000230, 22 June 2009 at [18].

19 At [18].

[39]   Other Family Court decisions have emphasised that the fundamental question for the Court is whether care and protection concerns would remain if the order was discharged;20 and any decision to discharge an order must comply with the paramountcy principle.21

Points on appeal

[40]   Ms Frye’s written submissions set out seven grounds of appeal. At the hearing Ms Frye made oral submissions on some supplementary matters. Each of the grounds of appeal is discussed below. Because there is a degree of overlap in the grounds some of them are discussed together.

Were all facts relevant to these proceedings examined by the Family Court?

[41]   Ms Frye’s written submissions did not particularise what facts she believes were not taken into account by the Family Court.

[42] Ms Frye’s oral submissions emphasised two main issues. First, that the Court did not have adequate regard to all of the steps that she has taken to address the various concerns about her parenting and, second, the Court did not adequately consider how well she has in fact coped with all four of her boys on the occasions when she has had them in her care. These particular factors are considered at [75]-[84] below.

[43]It is clear from the 2020 decision that the Court did consider:

(a)the general historical context of the boys’ care;22

(b)Ms Frye’s circumstances and capacity to parent;23

20 Chief Executive of Oranga Tamariki-Ministry for Children v MQ [2021] NZFC 9089 at [44]; E v G [2008] NZFLR 337 (FC) at [31]; Chief Executive of the Ministry for Vulnerable Children v RW [2017] NZFC 7122 at [20]; and MEM v SBN, above n 18, at [17]-[18].

21 Chief Executive of Oranga Tamariki v MQ, above n 20, at [42]; M v Chief Executive of Oranga Tamariki, above n 12, at [38].

22 2020 decision, above n 1, at [4]-[9].

23 At [59]-[73].

(c)the plans and social work undertaken by Oranga Tamariki, including supervision of contact and monitoring by Oranga Tamariki of Ms Frye’s parenting;24

(d)the relevant legal principles.25 The Judge considered and, in substance, applied the framework set out in MEM.26 Judge Moss was mindful of the threshold for intervening in a family’s private life,27 and of the need to consider mana tamaiti.28 The Judge also noted that the Court was obliged to consider the children’s situation in the context of their whakapapa;29

(e)psychological assessments and recommendations;30

(f)Jordan’s views;31

(g)determinations in relation to Jordan’s care;32 and

(h)next steps.33

Is it appropriate in any manner for judicial interface to have influence on the contents of the s 128 plan?

[44]   Section 128 of the Act requires the Court to obtain and consider a plan for a child or young person before making certain orders, including custody orders under  s 101 and guardianship orders under s 110 of the Act.

[45]   In the 2022 decision the Family Court Judge recorded that Ms Frye opposed the approval of the s 128 plan dated 9 December 2021, because she considered it

24     At [74]-[131].

25     At [32]-[58].

26     At [45]-[48].

27     At [31] and [49]-[50].

28 At [37].

29     At [37]-[40].

30     At [132]-[193].

31 At [196].

32     At [194]-[200].

33 At [202].

provided for inadequate access.34 The Court considered that the plan was “adequate, now that the s 121 application is dismissed”35 and directed that a fresh plan be filed and served in December [2021], to meet the 12-month schedule.36

[46]   In this appeal Ms Frye questions whether it is appropriate for the Court to have any influence on the contents of the s 128 plan.

[47]   The Court is required to obtain and consider a plan in respect of any child or young person before making an order under s 101 placing the child or young person in the custody of any person.37 The plan is prepared by the Chief Executive, as the applicant for the s 101 custody order.38

[48]   The contents of the plan must be in accordance with s 130 of the Act which specifies the objectives to be achieved, the period within which they should be achieved, the details of services and assistance to be provided for a child, any parent or guardian, the responsibilities and objectives of the child and of any parent or guardian. It is the duty of the Court to consider and assess whether the contents of the s 128 plan are appropriate to address the wellbeing and best interests of the child.

[49]   These statutory requirements provide a complete answer to Ms Frye’s submission on this point.

Was appropriate weight given to the evidence of Ms Frye’s criminal conviction being quashed?

[50]   The primary emphasis of Ms Frye’s oral submissions before me was that because the High Court had quashed her conviction for assaulting Jordan and dismissed the charges, there was no longer any basis for Jordan to remain the subject of orders under the Act and he should have been returned to her care. This submission is formulated in several ways – first, that the Family Court, although acknowledging

34 2022 decision, above n 2, at [36].

35 At [53].

36     At [53(d)].

37     Oranga Tamariki Act 1989 (Act), s 128(1) and (2).

38     Section 129.

the existence of the evidence about the quashing of the conviction, did not put any real weight on it. Second, that this amounts to a breach of natural justice.

[51]   It is clear that Judge Moss did acknowledge the setting aside of Ms Frye’s conviction. In the 2020 Decision, Judge Moss noted the fact of the conviction,39 and recorded that in August 2016 Ms Frye had successfully appealed the conviction.40 The Judge recorded that Ms Frye had presented fresh evidence and that the Crown had accepted the reliability of that evidence enough to both support her appeal and then to decline to pursue a retrial in the District Court. On that basis the proceedings were dismissed.

[52]   In relation to Ms Frye’s evidence, Judge Moss said unequivocally: “I accept this evidence. I consider that the mother did not cause the injuries to [Jordan].”41

[53]Judge Moss said:42

I accept, as did Ms [O], that the evidence [before the High Court] provides a credible account of the circumstances of [Jordan]’s injury, and that the mother acted to ensure his injury was attended to… I accept the mother’s evidence that she was terrified to leave [Damian’s father], that she was constantly monitored by [Damian]’s father when interacting with the Courts, lawyers and Oranga Tamariki, and that he threatened to kill her if she talked honestly about the violence and abuse both she and [Jordan] sustained.

[54]   The Family Court accepted that Ms Frye had started the relationship with Damian’s father at a time when she was distressed at the death of her husband (Jordan’s father) and was vulnerable. The Judge also noted that this very poor choice had profound adverse consequences for Jordan.43

[55]   The Court did refer to Jordan being injured as a toddler, when considering the psychological evidence and assessing the benefits and disadvantages of returning Jordan to Ms Frye’s care, or leaving him with his current caregiver.44 However, in view of the Court’s clear acknowledgement of Ms Frye’s acquittal and acceptance of

39 2020 decision, above n 1, at [6].

40 At [7].

41 At [8].

42 At [62].

43 At [8].

44 At [174].

her evidence about the assault on Jordan, it is a necessary inference that the Court had regard to the fact that Ms Frye had successfully appealed the criminal charges.

[56]As Judge Moss recorded in the 2022 decision:45

… this is the first time that the mother has significantly relied on the assault conviction as the index event causing [Jordan]’s removal. This appears to have occurred because the judgment in August 2020 opens with a description of this event. The assault charge was not the reason for removal. [Jordan] already was not living with his mother. At the time of the assault, [Jordan] was having an overnight contact with his mother and [Damian]’s father, her then partner.

[57]   It is clear that the Family Court did have appropriate regard to the fact that the conviction had been discharged. The question the Court had to answer on Ms Frye’s application could not have been answered simply on the basis that Ms Frye’s past conviction had been quashed.

[58]   First, as Judge Moss observed in the passage quoted above (at [56]), the events that led to Jordan being placed in care pre-dated the April 2015 incident for which Ms Frye was convicted. Jordan had been out of Ms Frye’s care for seven months before that time.

[59]The relevant events that pre-dated the April 2015 incident included:46

(a)On 9 June 2013 a nurse from the hospital made a report of concern due to concerns about the stress Ms Frye was under. Ms Frye had disclosed to hospital staff that she had a diagnosis of borderline personality disorder and had not slept for three nights. Ms Frye was referred to Family Works for support, but was not able to engage with their services.

(b)On 10 June 2014 a staff member from Jordan’s day-care made a report of concern following Jordan’s father’s death. The day-care staff

45 At [16].

46 These events were detailed in the affidavit of the social worker then assigned to Jordan, in support of a without notice application for an order placing Jordan in the custody of the Chief Executive, under s 78(1) of the Act, on May 2015.

disclosed concerns about Ms Frye’s parenting, mental stability and overmedicating Jordan. Ms Frye was referred to Family Start for support and the day care staff were to monitor the situation.

(c)On 10 August 2014 the Police and the Mental Health Line made a report of concern following a phone call from Ms Frye saying that she was hearing voices and wanted to end her life. Mental Health Line also reported that Ms Frye said she was losing patience with Jordan, had thrown a bottle of milk and felt she was unable to care for him. A social worker visited Ms Frye and Ms Frye self-referred to a community mental health support centre who put supports in place for her.

(d)On 14 August 2014, the day care staff made another report of concern as they had seen Ms Frye smacking Jordan. The day care staff reported they had talked to Ms Frye about this and, afterward, did not see her smack him again.

(e)On 16 September 2014, a report of concern was made by day care staff after noticing a big bruise on  Jordan’s left  ear  and observing that  Ms Frye appeared angry with Jordan that morning and had removed his blanket and favourite toy.

(f)On 22 September 2014, day care staff made a further report of concern after noticing bruises on Jordan’s left and right cheek, forehead, and a handprint mark on his buttocks. Ms Frye reported that this was from Jordan running into the wall but accepted the handprint mark was from her smacking Jordan. A safety plan was put in place, including ongoing close monitoring by the day care.

(g)On 23 September 2014, the day care made a report of concern after Ms Frye said she was withdrawing Jordan from the centre. That day, the Oranga Tamariki social worker met with Ms Frye and her partner, Damian’s father, who were  angry  and  abusive.  At  this  meeting, Ms Frye agreed for Jordan to be placed with Oranga Tamariki

caregivers under a temporary care agreement. On 4 November 2014, a Family Group Conference was held where it was agreed that Jordan was in need of care and protection and an extended care agreement was signed.

[60]   It is clear from this history that Ms Frye’s conviction was not the precipitating factor in Jordan being taken from her care.

[61]   Second, further concerns had arisen in the meantime. Those new matters are detailed in discussing the next ground of appeal below.

[62]   Ms Frye’s appeal on this point cannot succeed. I conclude that the Family Court did give sufficient weight to the fact that Ms Frye’s conviction had been quashed.

Are there substantive grounds to support Jordan remaining in care subject to orders in favour of the Chief Executive?

[63]   In the 2020 decision, the Family Court reached the view that the discharge of the orders would expose Jordan to a care and protection risk.47

[64]   In the 2022 decision, the Court referred to the 2020 decision and the reasons contained in that decision, the access application and the 9 December 2021 s 128 plan. The application required the Court to consider whether the access arrangements set out in the 2020 decision, and the subsequent plan, were to resume or whether the more recent plan, created in light of the therapist’s assessment, was to continue.48

[65]   The Court recorded that there was no new evidence which would lead to a different conclusion. The Court said:49

If anything, events over the last 20 months have reinforced the Court’s conclusion that [Jordan] is in need of stability which is best provided by continuing his close attachment to his caregiver.

47 2020 decision, above n 1, at [198]. The relevant paragraph of the 2020 decision is set out in full at [19] above.

48 2022 decision, above n 2, at [37].

49 At [26].

[66]   In reaching that view, the Court noted that the changes to contact imposed by Oranga Tamariki resulted from some of the events which had occurred during Jordan’s contact with Ms Frye following the 2020 decision, which had destabilised his placement, distressed and disturbed him, and were contrary to his wellbeing.50

[67]   The various reports before the Court noted a deterioration in Jordan’s behaviour following the 2020 decision. For example, Caroline reported that Jordan would return from visits with his mother tense, agitated and anxious, when he had previously been well-settled and secure in his placement.

[68]   The Court referred to the March 2021 “Report of Concern” by the psychologist, Ms V, who was working with Ms Frye. Ms V reported that Ms Frye was purposefully causing emotional harm to Jordan (coaching), with no intention of stopping.

[69]   This was followed by a specialist assessment report by Oranga Tamariki Clinical Services Ms G, where the assessor recommended that the contact between Ms Frye and Jordan should be well-supervised for Jordan’s emotional safety to be guaranteed.51

[70]   Following Ms Frye’s application to discharge the orders, the Family Court had commissioned a psychological report under s 178 of the Act. The psychologist appointed was Ms O. In the course of 28 months, Ms O issued five reports relating to both Jordan and Damian. The fifth of those reports, in November 2021, noted:

[Jordan]’s psychological safety appears to have been seriously compromised  by  [Ms Frye]’s own needs to have him returned rather than her focusing on [Jordan]’s needs to be independent, safe, with routines and boundaries and doing well in all areas of his life.

[71]   The Court had regard to Jordan’s views, both as reported in counsel for the child’s memoranda, and through a judicial interview.52 His views were properly taken into account.

50     At [38] and [39].

51     At [41]-[46].

52 At [46].

[72]   The Court observed that Ms Frye had an “unshakeable belief” that Jordan’s contact should be returned to that set out in the plan in 2020, or something more.53 But the Judge went on to note that Jordan is “significantly advantaged by the structure of contact which has been devised. I conclude that the mother has acted on her belief that [Jordan] will be coming to her care, and that she has tried to make sure that [Jordan] has expressed this wish”.54

[73]   The Court considered that the discharge of the current orders would expose Jordan to a risk that his mother could not cope with parenting him full-time, whether as one of three, or as one of four. That concern arose in part from some of Ms Frye’s history, but also from the significant value the Court placed on the quality of Jordan’s current placement with Caroline. The Court concluded that if Jordan were to return to his mother’s care the risk of a loss of that relationship would have profound impact on him. As the Court noted, Jordan carries with him the vulnerability which arises from adverse childhood experiences.55 The Court concluded that the proposed structure of contact should remain.56

[74]   I am satisfied that there were substantive grounds for the Family Court to conclude that Jordan should remain subject to the current orders.

Ms Frye’s ability to parent all four of her children

[75]   Ms Frye says that the Court did not have adequate regard to the steps she has taken to improve her parenting skills and to her ability to parent all four of the boys. She argued powerfully that it is best for all her sons that they be together, as a family. She submits that they will be damaged if that does not occur. She also says that she is fully capable of parenting all four of the boys, fulltime.

[76]   There is no doubt that Ms Frye is committed to parenting her children and that she has worked hard at addressing the concerns raised at various points in relation to her parenting. As Judge Moss noted in the 2020 decision:57

53 At [48].

54 At [47].

55 2020 decision, above n 1, at [198].

56 2022 decision, above n 2, at [47].

57     2020 decision, above n 1, at [24]-[26].

[24] The mother has assiduously gone about improving her position, accepting that some of her behaviour has been unacceptable for the children. The first time she perceived that was when [Jordan] left her care in September 2014. She had been angry and aggressive. She said she immediately enrolled in an anger intervention course. Since then, she [has] undertaken about six parenting courses, and two longer and home-based family development courses. In addition she has done a number of self-esteem and personal development courses, including MAPPS, First Aid, Domestic Violence Prevention, and courses about keeping herself and her babies safe. She has engaged over 3 plus years with a community agency in [location B], [a kaupapa Māori service], and also with [another iwi governed health and social service provider], which operate under the auspices of [a home-based social work, family and whānau support organisation].

…

[26] In addition to all of these matters of personal development, the mother has also achieved a certificate related to [redacted]. This is a field of work she has been engaged in before, prior to [Jordan’s] birth. She is eager to work in this field.

[77]   Judge Moss also noted that the evidence focussed on Ms Frye’s efforts to implement the strategies from what she had learned at courses and within the therapeutic self-improvement work.58 The Judge recorded Ms Frye’s strong belief that she is well-placed to parent all of her boys together and believes it is important for them that she does so.

[78]Later in the judgment, Judge Moss recorded that Ms Frye:59

… has been constant, persistent, reliable with contact, and focussed on her own goal. She has set about years of self-improvement, not only because the Ministry required it, but because she perceived the need for it.

[79]   What was also plain before this Court  is  that  there is  no  concern  about  Ms Frye’s ability to physically parent the boys. That is clear from Ms O’s reports. It is also accepted that there were no concerns noted at the time of contact during the Christmas 2020/2021 period.

[80]   The successive reports provided by Ms O prior to the 2020 hearing in the Family Court noted an improvement in Ms O’s parenting skills over time, but Ms O also observed that Ms Frye tended to prioritise her own (emotional) needs in the

58 At [30].

59 At [60].

moment, over Jordan’s needs, and that there was a risk of Ms Frye “adultifying” Jordan and Damian. In her November 2021 report Ms O observed that she had no concerns about Ms Frye being able to provide physically for her children, but was concerned about potential psychological challenges in regard to Jordan.

[81]   Ms O also said: “Ms [Frye] needs to focus on supporting her children, not undermining them to meet her own needs which has been observed by professionals”. She further noted: “Ms [Frye] is just managing three children and to add a fourth would likely lead to the wellbeing of all five members of the household deteriorating”. As Ms O had noted in her evidence to the Family Court in the 2020 hearing, 24/7 care 365 days of the year is constant and consistent and raises concerns that are not present in relation to overnight stays.

[82]   Ms G’s report of 29 July 2021 said, “Continued contact would be advisable so long as the meetings are well supervised, boundaries are adhered to and there is guaranteed emotional safety for [Jordan]”.

[83]   The Court concluded that the discharge of the orders would expose Jordan to a “tangible, well-defined risk”. The Court’s concerns were at a level that the orders included a further s 178 report for Ms O to advise on the treatment programme, including combinations, duration of intervention, and therapists to report to either  Ms O or to the Court, with respect to interventions by way of counselling and therapy for the children, Ms Frye and Jordan’s caregivers.

[84]   The evidence before the Family Court in 2020 and 2022 points clearly to a conclusion that Ms Frye is not yet in a position to parent all four children, on a full- time basis, without significant risk to Jordan’s wellbeing.

Has Oranga Tamariki stated any concerns for Jordan in Ms Frye’s care?

[85]   This ground of appeal is in substance addressed under the previous ground of appeal.

[86]   Plainly Oranga Tamariki did state concerns for Jordan in Ms Frye’s care and these were the concerns specifically considered by the Family Court in both the 2020 and 2022 decisions.

Breach of natural justice and Bill of Rights Act

[87]   Ms Frye did not particularise this ground of appeal. However, I note that she has been able to fully participate in all of the processes leading up to the 2020 and 2022 decisions, including attending Family Group Conferences, responding to  the    s 128 plans for Jordan, presenting evidence and cross-examining witnesses and, before this Court, appealing the Family Court decisions.

[88]   The only exception to that arose from the Chief Executive’s without notice application for custody and additional guardianship orders on 7 May 2015. A without notice application is an exception to the usual rules of natural justice. For that reason, a high threshold must be met in the application.60 Judge Moran was clear that the application did reach the high standard required for a without notice order.61

[89]   As Ms Jackson submits, in relation to the allegations about breaches of the New Zealand Bill of Rights Act 1990, this proceeding is a substantive appeal of the 2020 and 2022 decisions. It is not a public law claim alleging breach of the Bill of Rights.

Supplementary submissions

[90]   Ms Frye relies on Nikau v Nikau for its statement that psychological research suggests it is better to prioritise one solid attachment over two troubled attachments.62

[91]   I accept the submission from the Chief Executive that Nikau is not applicable in this case, for two reasons. First, because it related to different legislation (the Care of Children Act 2004). Second, the psychological evidence for Jordan was that he had

60     Family Court Rules 2002, r 276(1)(b).

61 Minute of Judge Moran, FAM-2015-092-000507, 7 May 2015, at [1].

62     Nikau v Nikau [2018] NZHC 1862 at [37].

two equivalent primary attachments, to his mother and to Caroline.63 Jordan did not have two troubled attachments.

[92]   In relation to Jordan’s own view, it is correct that he had expressed a view that he wanted to live with Ms Frye. Judge Moss acknowledged this in the 2020 decision.64 However, Jordan had also expressed the view that he was happy with Caroline. Jordan did express a view, immediately following the 2020 decision, that he wished to live with Ms Frye, but I accept that there was expert evidence to suggest that his views had been influenced.65 More recently, the view that Jordan has expressed is that he wants to live with Caroline and that he wants his contact with Ms Frye to be supervised, because of her interactions with him. As the Family Court noted, Ms O concluded that Jordan “is in something of a loyalty bind, that he does not want to hurt anybody, and that he is happy and satisfied in the relationships he has”.66 In any event, while the Court must take account of the views of the child when making a decision,67 the child’s view is one factor to be considered and is not determinative. As Judge Moss described it, “[t]he social worker has seen [Jordan] with his caregiver, and in chorus with everybody else, is confident that [Jordan]’s caregiver’s contribution to his wellbeing is constant, mature and enormous”.68 The Court concluded that if he were to return to his mother’s care the risk of a loss of that relationship would have profound impact on him.

Conclusion

[93]   In this case, the Court heard extensive evidence, over eight days. The 2020 decision is considered and thorough. It was plainly open to the Court to conclude, on the evidence before it, that care and protection concerns, particularly around Jordan’s psychological and emotional state, remained and that it would not be in his well-being and best interests to discharge the orders.69

63     2020 decision, above n 1, at [196]-[197].

64 At [196].

65 2022 decision, above n 2, at [10].

66 2020 decision, above n 1, at [196].

67     Act, s 5(1)(a).

68 2020 decision, above n 1, at [74].

69 2020 decision, above n 1, at [198].

[94]   As is clear from the 2022 decision, at that point there was no new evidence before the Family Court to justify a discharge of the orders. In fact, as the Court observed, the position was somewhat worse.

Result

[95]For the reasons set out above I dismiss Ms Frye’s appeal.

[96]The current orders remain in place.

[97]   The next step is preparation of the s 128 plan, scheduled for November 2022 (although Ms Jackson advised the Court that Oranga Tamariki had put that process on hold pending the outcome of this appeal). The steps necessary for preparation of the plan should now occur.

Gwyn J

Solicitors:
Rachel Dewar Law, Wellington

Copy to:

The appellant

Ms Fuata’i, Manukau City