Gechan v Chief Executive of Oranga Tamariki Ministry for Children
[2021] NZHC 1279
•2 June 2021
NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION,
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IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE
CIV-2019-485-540
[2021] NZHC 1279
UNDER the Oranga Tamariki Act 1989 and the Care of Children Act 2004 IN THE MATTER OF
an appeal from a decision of the Family Court
BETWEEN
MR GECHAN
Appellant
AND
THE CHIEF EXECUTIVE OF ORANGA TAMARIKI – MINISTRY FOR
CHILDREN
First RespondentPAUL ROBERT CHEYNE REID
(Lawyer for Child) Second Respondent
DAN
Young person the matter is about
Hearing: 31 May 2021 Appearances:
Mr Gechan in person
R J Bowe and E J Pedder for the First Respondent P R C Reid for Dan
Judgment:
2 June 2021
JUDGMENT OF PALMER J
GECHAN v THE CHIEF EXECUTIVE OF ORANGA TAMARIKI – MINISTRY FOR CHILDREN [2021] NZHC 1279 [2 June 2021]
What happened?
[1] Dan, now aged 16, is intellectually disabled and suffers from conditions including complex epilepsy.1 After his parents separated, around 2011, he lived with his father, Mr Gechan. For 12 months from June 2015, under a care agreement negotiated at a family group conference, Dan lived at Hohepa Hawkes Bay which is a home, school, and farm for intellectually disabled young people. He was taken out of Hohepa by his father in June 2016. Later that month, he was placed under the guardianship of the Family Court and in the custody of the Chief Executive of Oranga Tamariki. The Family Court directed that Dan return to Hohepa.
2019 Family Court decision
[2] In November 2017, Mr Gechan applied to discharge the Family Court’s orders. On 26 August 2019, at the Porirua Family Court, Judge C M Doyle declined the application to discharge Dan from the custody of Oranga Tamariki.2 She discharged him from the guardianship of the Family Court. She appointed the Chief Executive of Oranga Tamariki as Dan’s sole guardian for the specific purpose of making decisions about medical treatment for Dan and giving effect to medical advice about him.3
[3] Mr Gechan had been unwilling to authorise the administration of epilepsy medication.4 Judge Doyle found that the evidence “overwhelmingly establishes significant care and protection concerns existed for [Dan] in the care of his father” in June 2016 and 2017, “resulting in a risk to him of serious medical consequences which could have been life threatening”.5 The Judge had “serious misgivings about [Mr Gechan’s] ability to be trusted to implement any agreements, plans and orders in place and to manage the professional relationships” required.6 She said “[t]he risk to [Dan] is that Mr [Gechan] will not be able to work with some professionals and this
1 The names used in this judgment for Dan and his father are fictitious in order to anonymise Dan’s identity under ss 11B–11D of the Family Court Act 1980.
2 Gechan v Chief Executive of Oranga Tamariki FC Porirua FAM-2016-091-152, 26 August 2019.
3 At [110].
4 At [25]–[29].
5 At [85]–[86].
6 At [93].
will reduce options for [Dan] where there may be very few alternative options available”.7 She was satisfied that “[Dan]’s needs are being well met at Hohepa”.8
[4] On 16 September 2019, Mr Gechan appealed Judge Doyle’s decision. The last substantive step he took in that appeal was filing points on appeal on 30 June 2020. Oranga Tamariki applied to dismiss the appeal. At the interlocutory hearing on 31 May 2021, Mr Gechan confirmed that he wished to abandon that appeal, because he wishes to pursue appeal of a subsequent judgment. Mr Gechan’s abandonment of the appeal is responsible. Oranga Tamariki’s submissions, that the appeal should be dismissed on the basis that Mr Gechan had failed to comply with court directions and the appeal was moot, were compelling.
2020 Family Court decision
[5] From the Level 3 COVID-19 lockdown in April 2020, Dan moved from Hohepa to live with Mr Gechan in Shannon. Discussions between Oranga Tamariki and Mr Gechan, and a court mediation conference yielded no agreement about Dan’s care arrangements. On 21 December 2020, in an oral judgment at the Levin Family Court, Judge J F Moss made Dan a ward of the Family Court and appointed Oranga Tamariki as the Court’s agent for all general purposes and specified particular tasks.9 She considered the care and protection issues remain, particularly in Mr Gechan not enrolling Dan in school.10 She was also concerned that the life plan for Dan put together by Mana Whaikaha was not based on any input from Dan’s mother or sufficient consultation with Oranga Tamariki or Hohepa.11
[6] 10 February 2021 was the last day for Mr Gechan to appeal as of right. On 3 March 2021, Mr Gechan filed an application for leave to appeal that decision out of time.12 The grounds of appeal are that Judge Moss erred by:
7 At [99].
8 At [104].
9 Chief Executive of Oranga Tamariki – Ministry for Children v Gechan [2020] NZFC 11494 at [57].
10 At [22].
11 At [26], [39] and [47].
12 The parties understood the application was not filed until 4 March 2021, but the Court’s date stamp and records indicate it was 3 March 2021.
1.1taking the view that [Dan] is “…profoundly disabled” and that institutional care for disabled children was essential is plainly unjust unreasonable and inconsistent with the principles and purposes of the Oranga Tamariki Act 1989 (“The Act”) and in breach of sections 9, 19, 22, 23, and 27(1) of the New Zealand Bill of Rights Act 1990.
1.2giving insufficient weight to the irretrievable damage to [Dan]’s future wellbeing and best interests of the statutory intervention and his removal when there was sound evidence to that effect.
1.3not giving sufficient weight to the assessment, review, and supporting documentation as well as the comprehensive assessment of [Dan]’s functioning and disability needs and plans filed, or evidence of the social support agency responsible for disability support services, Mana Whaikaha.
1.4not ascertaining [Dan]’s views will or preferences which have not been reported to the Court, inconsistent Article 19 of the Universal Declaration of Human Rights the United Nations Convention on the Rights of People with Disabilities.
1.5not establishing the required exceptional circumstances, not considering the range of other options under OTA, the correct current legal framework, to justify the situation as being within the jurisdiction of last resort.
1.6failed to consider her appropriateness as presiding Judge for these proceedings.
[7] Mr Gechan has filed two affidavits dated 3 March 2021 in support of his application. One was from Mr Gechan, attaching various reports. The other was from Dan’s brother, who was a carer for Dan, about Dan and his care.
[8] Mr Gechan also applies to transfer these proceedings from the Family Court to the High Court. In addition, Mr Gechan initially applied for a stay of the Family Court’s decisions pending appeal, and for an interim custody order. But in his submissions, he abandoned those applications. At the interlocutory hearing on 31 May 2021, he confirmed that abandonment.
Leave to appeal
Law
[9] Section 341 of the Oranga Tamariki Act 1989 (the Act) provides a right of appeal to the High Court against decisions of the Family Court. Rule 20.4 of the High Court Rules 2016 provides that if an appeal is not brought within 20 working
days of the decision, the Court may extend the time prescribed by special leave if the enactment permits it.
[10] In Almond v Read, the Supreme Court set out principles in relation to extending time for appeal.13 An application to extend time by a day or so as a result of an error or miscalculation should generally be dealt with on the basis it is a minor slip-up in an exercise of right, and should generally be granted.14 The ultimate question is what the interests of justice require which requires consideration of such factors as:15
(a)the length of the delay;
(b)the reasons for the delay;
(c)the conduct of the parties, particularly of the applicant;
(d)any prejudice or hardship to the respondent or others with a legitimate interest in the outcome; and
(e)the significance of the issues raised by the proposed appeal.
[11] The merits of the proposed appeal may be relevant in order not to facilitate unjustifiable delaying tactics.16 But the merits may be overwhelmed by other factors and will not generally be relevant where there has been insignificant delay as the result of error and the respondents suffer no prejudice.17 Consideration of the merits in the context of an extension of time must necessarily be relatively superficial. Refusing an extension on the basis of merits should only occur where the appeal is clearly hopeless.18
13 Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801.
14 At [37].
15 At [38].
16 At [39].
17 At [39](b).
18 At [39](c).
Submissions
[12] Mr Gechan submits his three-week delay in applying for leave to appeal the 2020 Family Court decision was modest and causes no prejudice. He says he did not receive the written version of the judgment until 13 January 2021. He made applications in the Family Court in relation to that judgment with the assistance of the Manuwatu Community Law Centre. But when he became self-represented he filed his application. He submits he has a bona fide and seriously arguable ground of appeal and that an appeal is in the interests of justice because of the seriousness of the issues. Mr Gechan submits Dan’s voice is not being heard consistently with the rights of persons with disabilities to have communications support, including in terms of the explicit reference to the United Nations Convention on the Rights of Persons with Disabilities in s 5(1)(b)(i) of the Oranga Tamariki Act 1989 (the Act). Decisions about his care arrangements are not taking into account his views and wishes but value judgments of others. Ms Carroll from Mana Whaikaha, who has been a mentor to Dan as part of his disability support could not properly communicate with him at Hohepa. Before hearing the applications that resulted in her judgment, Judge Moss proceeded with a mediation conference which no one from Mana Whaikaha attended.
[13] Ms Pedder, for Oranga Tamariki, submits there is no valid reason for the delay in pursuing the proposed appeal, because Mr Gechan was present in Court with counsel when the oral judgment was delivered and he made a conscious decision not to file an appeal in the required time. She submits the appeal lacks merit and raises no significant issues. She submits the delay in the proceeding would prejudice Dan’s welfare and best interests, particularly if the appeal succeeds. She submits the focus should be on Dan’s needs, including the need for certainty. She submits Mr Gechan has not demonstrated an ability to manage his life to put Dan’s needs first. In reply for Oranga Tamariki, Mr Bowe submits Dan’s voice is heard through the lawyer for the child. He submits it is important to starting planning for Dan’s transition to whatever independence may look like for him. But it cannot if there is ongoing litigation.
[14] Mr Reid, for Dan, submits that Dan’s welfare and best interests are the first and paramount consideration and Mr Gechan does not recognise the possible effects of delays on Dan. He submits the ongoing litigation delays the stability and certainty
Dan needs and impacts on the quality of care he receives, contrary to ss 4 and 5 of the Act. He submits the evidence overwhelmingly demonstrates that it is in Dan’s best interests and welfare to remain at Hohepa. He submits the evidence offered by Mr Gechan is “wildly at odds” with the independent evidence before the Court. He submits Mr Gechan’s acceptance that Dan should be under the guardianship of the High Court makes it difficult for him to argue there is any substantive issue with Judge Moss’ decision.
Should leave to appeal be granted?
[15] I accept that Dan’s well-being and best interests are the first and paramount consideration in applying the Act, as s 4A(1) provides. But there is disagreement here about what that requires. My relatively superficial review of the merits of Mr Gechan’s proposed appeal does not suggest it is clearly hopeless. But he would be well-advised to engage, and listen to, legal advice in pursuing it.
[16] Mr Gechan had heard the oral judgment on 21 December 2021. But it is helpful to have access to the written version of the judgment in deciding whether to appeal, particularly when self-represented. He says he did not receive the written version until 13 January 2021. He made further applications to the Family Court in relation to the decision. He also made decisions about representation. The appeal period expired on 10 February 2021. Mr Gechan filed his application for leave to appeal on 3 March 2021, 15 working days later, or 21 days later in total. Mr Gechan has demonstrated a history of delay in these proceedings. But in the circumstances, I do not consider the application for leave to appeal is unreasonably late.
[17] It would undoubtedly be in Dan’s interests for the litigation to be over and plans for his care to be settled. But I accept Mr Gechan’s concerns for Dan’s interests are genuine and, except for the deadline, he has a right to appeal the decision. I grant the application for leave to appeal. But Mr Gechan must not delay in pursuing the appeal. I make timetabling directions below. If he fails to comply with them, this appeal risks being dismissed as his last one would have been because of his delays. For the avoidance of doubt, I continue the appointment of Mr Reid as lawyer for Dan for the purposes of the appeal.
Transfer of proceedings
[18] Mr Gechan also applies for the proceedings to be transferred from the Family Court to the High Court, though it is not clear what jurisdiction he invokes. Section 14 of the Family Court Act 1980 empowers the Family Court, not the High Court, to transfer proceedings to the High Court. Mr Gechan submits transfer would enable a human rights-based approach to be at the forefront of the decisions regarding Dan.
[19] Ms Pedder, for Oranga Tamariki, submits there is no benefit to Dan in transferring the proceedings. Mr Reid, for Dan, submits there is insufficient evidence justifying a transfer to the High Court and a wealth of evidence why the Family Court should retain the proceedings.
[20] Even if there is jurisdiction to do so, I do not consider there is any good reason to transfer these proceedings from the Family Court to the High Court. The Family Court is a specialist jurisdiction which has been managing these issues since 2016. It is in the interests of Dan that it continue to do so. I dismiss the application.
Result
[21] I dismiss the application to transfer the proceedings to the High Court. I grant the application for leave to appeal the judgment of 21 December 2021. Costs will lie where they fall.
[22] Costs for the appeal of the 21 December 2021 judgment will be on a category two basis. I make the following timetabling directions:
(a)By 5 pm Wednesday 9 June 2021, Mr Gechan must file and serve his notice of appeal.
(b)By 5 pm Wednesday 23 June 2021, Oranga Tamariki (and the lawyer for Dan, if relevant) must file and serve their notice of opposition.
(c)By 5 pm Wednesday 21 July 2021, Oranga Tamariki must file and serve a common bundle of all relevant documents, including all documents from the trial before Judge Doyle that any party considers relevant.
(d)By 5 pm Wednesday 4 August 2021, Mr Gechan must file and serve his submissions of up to 30 pages.
(e)By 5 pm Wednesday 18 August 2021, Oranga Tamariki and counsel for Dan must file and serve their submissions of up to 30 pages.
(f)At least five working days before the appeal is heard, Oranga Tamariki must file and serve a bundle of authorities referred to in submissions of all parties.
(g)I direct the Registry to allocate a hearing of the appeal for up to one day on the first available date after Wednesday 25 August 2021.
(h)I reserve leave for any party to request a case management teleconference.
Palmer J
Parties/Solicitors:
Mr Gechan in person
Oranga Tamariki, Wellington Reids Family Law, Lower Hutt
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