H v H no.3 HC Ak CIV 2007-404-007415

[2009] NZHC 2521

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

CIV-2007-404-007415

UNDER  Care of Children Act 2004

BETWEEN  WAH

First Applicant

AND  LFA

Second Applicant

AND  WTW

Third Applicant

AND  MMP

Fourth Applicant

ANDRDH Respondent

Hearing:         27-29 October 2009

Appearances:  First Applicant in person

G A Cole for Second Applicant
P E Main for Third Applicant
A Hart for Fourth Applicant
C Ryan and H Retzlaff for Chief Executive
L J Kearns for Children
G M Cameron as Amicus

Judgment:      23 December 2009 at 3:00 pm

RESERVED JUDGMENT (3) OF COURTNEY J

This judgment was delivered by Justice Courtney

on 23 December 2009 at 3:00 pm pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date……………………….

H & ORS V H (NO 3) HC AK CIV-2007-404-007415  23 December 2009

Introduction

[1]      The Chief Executive has applied for an order either varying the order made at

[30](b) of my judgment 6 November 2009 or recalling the judgment. The application relates to the order that the Ministry of Social Development meet Mr W’s expenses for transporting the  children to and from school, the costs of their extra- curricular activities and any compulsory costs connected with schooling.

[2]            The order was made in response to an oral application by Mr W for financial assistance during closing submissions.   In support of the application, Ms Ryan, for the Ministry, has submitted that since my judgment was delivered she has become aware of the decision in LC v Ministry of Social Development,[1]  the effect of which is to preclude an order such as that made at [30](b).   Secondly, Ms Ryan submits that the Ministry is concerned that Mr W is receiving benefits totalling $1,234 per week, details of which were not placed before the Court previously and that information, together  with  further  benefits  to  which  Mr  W  could  be  entitled  if  he  applied  to WINZ, means that the orders made at [30](b) of my judgment are not required.

[1] [2008] NZFLR 828

[3]      Mr   W   opposes   the   application. His   counsel,   Ms   Main,   has   filed   a memorandum  together  with  an  affidavit  from  Mr  W. Ms  Main  has  submitted (distinguishing  LC  v  Ministry  of  Social  Development)  that  this  Court  does  have jurisdiction  to  make  the  orders  at  [30](b)  and,  further,  that  the  affidavit  evidence from Mr W makes it clear that the cost of transporting children makes a difference between him being able to manage within the amount of the benefits he is entitled to and not being able to manage.

Jurisdiction

[4]      Ms Ryan, for the Ministry, relies on a statement at [69] and [70] of the Court

of  Appeal’s  decision  in  LC  v  Ministry  of  Social  Development  in  which  the  Court said:

…neither can the Court expend the Chief Executive’s money for him…

…the rule of law governs Judges as much as the executive.   Family Court Judges  must  understand  that  they  cannot  dictate  what  facilities  are  to  be provided.

[5]      Before  I  consider  the  effects  of  LC  v  Ministry  of  Social  Development  it  is worth  setting  out  in  full  paragraphs  [68-70]  of  that  decision  and  noting  that  the judgment concerned s 78 of the Children Young Persons & Their Families Act 1989 and turned on the question as to whether the Family Court had the power to impose a placement condition on a custody order in favour of the Chief Executive.  The Court said:

[68]     In our view, the more difficult question is not whether the Court can impose  conditions,  even  as  against  the  chief  executive,  but  rather  whether there are any limitations on the conditions which may be so imposed.  Again, the practicalities must be firmly borne in mind.  If, as in our view is required by  the  legislation,  a  s  78  application  is  placed  on  notice  in  front  of  the Family  Court  Judge,  along  with  any  competing  proposals  or  concerns  by other properly interested parties, the Judge will be enabled to properly assess matters.

[69]     The chief executive can hardly legitimately expect a “blank cheque”

as to what is to be done  That said, neither can the Court expend the chief executive’s money for him. In the vast majority of cases, there are not likely

to be any real difficulties. But where there are, as here, there may be good and sufficient reasons where it is appropriate for a Family Court Judge to say that  it is in the best interests of a young person that he or she remain, for

instance, in a particular locality for a time.  The Court then has to carry out

its statutory role to act in the best interests of the child, by the imposition of such a condition.

[70]     By the same token, the rule of law governs judges as much as the Executive.   Family  Court  Judges  must  understand  that  they  cannot  dictate what particular facilities are to be provided.  If, for instance, the Court is told there  are  only  ten  beds  available  in  a  given  specialist  centre,  it  would  be quite inappropriate for a Family Court Judge to say that one of them must be allocated  to  a  particular  child  and  if  there  are  not  enough  that  the  centre would  have  to  provide  more. Here  again,  the  line  between  judicial  and executive action must be respected.

(emphasis added)

[6]      It is apparent that the context of this decision  was markedly different from that of the present case. The reference to the Court spending the Chief Executive’s money for him was not, it seems to me, intended to be read literally. The discussion

at this point of the judgment is directed towards whether there are any restrictions on the conditions that may be imposed under s 78. I do not consider that this decision has any effect on the jurisdiction to make orders intended to ensure the success of

orders made under the Care of Children Act 2004.  I note also that orders similar to the order in this case have previously been made by Family Court Judges.[2]

[2] See  e.g.  CAS  v  JAS  FAM-2003-041-370  12  February  2008  Judge  Dadelszen;  AB  v  CG  [2008] NZFLR 561; McGirr v Ministry of Social Development FAM-2001-085-001727 23 September 2008 Judge Moss.

[7]      Ms  Ryan  submits  that  it  is  Mr  W  who  is  the  agent  of  the  Court  for  the purposes of caring for the children, which is correct.  However, the Ministry is also the agent of the Court for the purposes of facilitating the arrangements I have put in place.  The  Ministry  has,  as  part  of  these  arrangements,  met  other  expenses associated  with  them  such  as  transporting  the  two  youngest  children  to  and  from contact visits.  The current application does not refer to these costs.

[8]      In  these  circumstances,  I  consider  that  I  did  have  jurisdiction  to  make  the orders.

New evidence?

[9]      Mr W gave evidence that he was receiving a benefit and that he was unable to meet the transport costs. Ms Main points out that the Ministry’s counsel could have explored this aspect with him further at that stage. In any event, Mr W has now filed

an affidavit in which he details the shortfall between his expenses and benefits.  He has deposed that he has sought all available funding through WINZ and that WINZ did pay for the children’s school uniforms.  However, his total benefits from WINZ (unsupported  child  benefit  and  sickness  benefit  including  accommodation  special benefit) total $1,040.89 and his average weekly expenditure he calculates as $1,080. This figure does not take into account emergencies such as doctors visits and one off items such as school trips and car repairs.

[10]     Ms Main also advises that the children’s parents are liable for child support but that this cannot make any difference to the level of Mr W’s benefit.

Conclusion

[11]     I consider that I had jurisdiction to make the orders at [30](b).  Consideration

of Mr W’s further evidence confirms that the orders were justified.   The Ministry’s application is therefore dismissed.

P Courtney J