Henderson v Oranga Tamariki Ministry for Children
[2023] NZHC 3018
•30 October 2023
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-2023-454-41
[2023] NZHC 3018
UNDER THE Oranga Tamariki Act 1989 IN THE MATTER OF
an appeal against a decision of the Family Court
BETWEEN
MS HENDERSON
Appellant
AND
ORANGA TAMARIKI—MINISTRY OF CHILDREN
Respondent
Hearing: 6 September 2023 Appearances:
Appellant in person McKenzie friend
V A Howell and I M G Clarke for Respondent H J McKenna as Counsel for Child
Judgment:
30 October 2023
JUDGMENT OF GRICE J
MS HENDERSON v ORANGA TAMARIKI [2023] NZHC 3018 [30 October 2023]
Introduction
[1] The appellant, Ms Henderson,1 appeals a judgment of the Family Court released on 17 March 2023 (the decision).2 The decision granted custody of Ms Henderson’s son, Ryan, to Oranga Tamariki and ordered that Oranga Tamariki be appointed an additional guardian. Previously Ms Henderson was the sole guardian.
[2] The application before the Family Court Judge was for a final custody order under s 101 of the Oranga Tamariki Act 1989 to replace existing interim custody orders (under s 102 of the Oranga Tamariki Act) in favour of the respondent. The matter has a complicated procedural history which I outline below.
[3] The hearing before the Family Court was part-heard in September 2022 and the hearing was resumed in February 2023. Ms Henderson was represented by counsel, Ms Faimalie. The September 2022 hearing was adjourned by consent when it appeared that progress might be made to an agreed outcome for the care of Ryan.
[4] Ms Henderson represented herself throughout the hearing on 28 February 2023 in the Family Court and in this appeal.
Background
[5] Ryan, the young person the subject of the custody and guardianship orders made in favour of Oranga Tamariki, was born on 7 September 2010. Ryan was conceived by sperm donation through a fertility clinic. Ryan’s father has not been legally identified. There is some suggestion that the sperm donor father was Mr L, with whom Ryan has had contact, but Ms Henderson says that Ryan’s father has not been identified. Ryan turned 13 years old shortly after this hearing on 6 September 2023.
1 The names of the appellant, the child and related parties have been anonymised in this judgment, including in quoted material.
2 Chief Executive of Oranga Tamariki—Ministry for Children v [Henderson] [2023] NZFC 2167 [March 2023 decision].
[6] Ms Henderson seeks to set aside the custody and additional guardianship orders made in favour of Oranga Tamariki. Ryan is presently in the day-to-day care of Oranga Tamariki and has been placed with caregivers. The Court approved and regularly reviews a schedule of access and other activities for Ryan in a plan prepared under s 128 of the Oranga Tamariki Act. The matter returns to the Family Court every six months for a review by the Judge. The details of the arrangements in the plan are varied from time to time to meet Ryan’s changing requirements and other exigencies. One of the issues that Ms Henderson raises is that the variation of the plan occurs to suit Oranga Tamariki and its caregivers’ convenience. Ms Henderson says the plan should not be altered except by the Family Court.
[7] Ryan has been residing with caregivers other than his mother since he went into the care of Oranga Tamariki in February 2021. Initially he was placed with Mr and Mrs C. Ryan was with Ms Henderson’s second cousin, Ms F, in approximately August 2022.3
[8] Ms Henderson confirmed in her oral submissions that Ryan has had some difficulties and she has found it difficult to control his behaviour. Those difficulties have been ongoing.
[9] Ms Henderson says that having undertaken further training and gained skills, she is now better placed to manage those difficulties than the Oranga Tamariki caregivers.
Approach to appeal
[10] This is an appeal under s 341 of the Oranga Tamariki Act. The appeal is a general appeal, from an evaluative assessment of what is in the best interests of the child, taking into account the applicable statutory principles. It is not an appeal against the exercise of discretion.4 The appeal proceeds by way of rehearing.5
3 Ryan was in the care of Ms F and spent time with Ms Henderson at the hearing of this appeal. However, shortly after the appeal was heard, memoranda were filed on behalf of Ms Henderson and Oranga Tamariki which indicate Ryan is no longer in the day-to-day care of Ms F.
4 M v Chief Executive of Oranga Tamariki [2019] NZHC 717 at [45]–[48].
5 Section 143 of the Care of Children Act 2004, the High Court Rules 2016 and ss 125–130 of the District Court Act 2016 apply to an appeal, with all necessary modifications, as if it were an appeal under s 124 of the Care of Children Act. Pursuant to r 20.4(2)(b) of the High Court Rules, the
[11] The Supreme Court in Austin, Nichols & Co Inc v Stichting Lodestar confirmed that appellate courts should form their own view of the matters in issue.6 Nevertheless, the appellant bears the onus of satisfying the appeal court that it should differ from the decision of the court appealed from.7
[12] In discharging that onus, the appellant must identify the respects in which the judgment under appeal is said to be in error.8 It is only if the appellate court considers that the decision appealed is wrong that it is justified in interfering.
Legislative framework
[13] The proceedings are under the Oranga Tamariki Act. The Family Court has jurisdiction to hear those proceedings. Section 4A of the Oranga Tamariki Act provides that the well-being and best interests of the child or young person must be considered in all matters relating to the administration or application of the Act. Under that section, the “well-being and best interests of the child or young person are the first and paramount consideration, having regard to the principles set out in sections 5 and 13.”9
[14] Ryan first entered Oranga Tamariki’s care by virtue of an agreement under s 140 of the Oranga Tamariki Act signed by Ms Henderson on 26 February 2021 when Ryan was 10 years old. Section 140 provides:
140 Agreements for extended care of children and young persons by chief executive, iwi social service, etc
(1)Subject to this section and to sections 143 to 145 and section 147, where every person who is a parent or guardian or person having the care of a child or young person agrees to do so, those persons may,—
(a)with the agreement of the chief executive, place the child or young person in the care of the chief executive for a period of more than 28 days; or
time for filing an appeal is within 20 working days of the decision. The High Court may extend the time prescribed for bringing an appeal under r 20.4(3).
6 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] NZLR 141 at [3].
7 At [4].
8 Green v Green [2016] NZCA 486, [2017] 2 NZLR 321 at [30].
9 Oranga Tamariki Act 1989, s 4A.
(b)with the agreement of an iwi social service or a cultural social service, place the child or young person in the care of that social service for a period of more than 28 days; or
(c)with the agreement of the director of a child and family support service, place the child or young person in the care of the director for a period of more than 28 days; or
(d)with the agreement of any person referred to in paragraphs
(a) to (c) or any other person approved by the chief executive for the purpose of this paragraph, place a young person aged 15 years or more in the care of that person for the purpose of assisting the young person to achieve independence.
(2)No agreement may be made under subsection (1)(a) to (c) providing for the placement of any child or young person in the care of any person for any period that exceeds,—
(a)in the case of a child who is under 7 years of age, 6 months:
(b)in the case of any other child or any young person, 12 months.
(3)An agreement made under subsection (1)(d) may be entered into for any period of up to 12 months and may, if approved by a family group conference, be extended by any further periods of up to 12 months.
[15] Under s 101 of the Oranga Tamariki Act, if a court, on application of the Chief Executive of Oranga Tamariki under s 68,10 “is satisfied that a child or young person is in need of care or protection, it may make an order placing that child … in the custody of” the Chief Executive or any other person. The order may be on terms and conditions as the court thinks fit.11 The court may, instead of making a final order under s 101, make an interim order under that section by virtue of s 102. The interim order may not continue in force for more than six months after the date on which it is made. The court may only make one further interim custody order under s 101.12
[16] The court may also make a guardianship order in favour of the Chief Executive or appoint the Chief Executive an additional guardian.13
[17] The court may make the relevant orders where it is satisfied that “a child or young person is in need of care or protection”.14 A child is in need of care or protection
10 I refer to the relevant orders being in favour of Oranga Tamariki in the judgment.
11 Section 101(2).
12 Section 102(3).
13 Section 110.
14 Sections 101(1) and 110(1).
when they are suffering, or are likely to suffer, serious harm.15 Serious harm will arise when the child is being, or is likely to be, abused (whether physically, emotionally, or sexually), deprived, ill-treated, or neglected.16 Other circumstances that may constitute serious harm, or establish the likelihood of serious harm, are:17
(a)the child’s development or physical or mental or emotional well-being is being, or is likely to be, impaired or neglected, and that impairment or neglect is, or is likely to be, avoidable; or
(b)the child has been exposed to family violence (within the meaning of s 9 of the Family Violence Act 2018).
[18] Serious harm may occur as a result of an incident, two or more incidents that have a cumulative effect which is serious enough to cause serious harm, or the co-existence of different circumstances.18
[19] Section 78 provides for the court to make an interim order relating to the custody of the young person pending determination of the proceedings.19 This remains in force for the period specified in the order, not exceeding 28 days, unless earlier discharged by the court or until a later date specified by the court in the order that the court considers allows sufficient time for a family group conference to be held and, if necessary, an application for another care and protection order is to be made.20
[20] Under s 128, where the court proposes to make a s 101 order placing any child or young person in the custody of any person or appointing a sole guardian under s 110, a plan must be prepared in accordance with ss 129 and 130. Section 130 sets out the required matters that the plan must deal with as follows:
130 Content of plans
(1)Every plan prepared pursuant to section 128 in respect of a child or young person shall—
15 Section 14(1)(a); and the March 2023 decision, above n 2, at [92].
16 Section 14AA(1)(a); and the March 2023 decision, above n 2, at [93].
17 Section 14AA(2); and the March 2023 decision, above n 2, at [94].
18 Section 14AA(3).
19 Section 78(1).
20 Section 78(4).
(a)specify the objectives sought to be achieved for that child or young person, and the period within which those objectives should be achieved:
(b)contain details of the services and assistance to be provided for that child or young person and for any parent or guardian or other person having the care of the child or young person:
(c)specify the persons or organisations who will provide such services and assistance:
(d)state the responsibilities and personal objectives of the child or young person:
(e)state the responsibilities and personal objectives of any parent, guardian, or other person who, under the plan, will have the care of the child or young person:
(ea) set out the following:
(i)the responsibilities and personal objectives of any parent, guardian, or other person who, under the plan, will not have the care of the child or young person, but who had the care of the child or young person previously and wishes to have the child or young person returned to that person’s care:
(ii)the steps that each such parent, guardian, or other person must take, or the behavioural changes each must make, before the child or young person can be returned to that person’s care:
(iii)the time frames within which those steps or changes must be taken or made:
(iv)the time within which a decision will be made about whether to return the child or young person to the care of any parent, guardian, or other person:
(f)contain such other matters relating to the education, employment, recreation, and well-being of the child or young person as are relevant.
(2)A plan need not contain the matters set out in subsection (1)(ea) if the plan is prepared on the basis that there is no realistic possibility that the child or young person will be returned to the care of a parent, guardian, or other person referred to in subsection (1)(ea)(i), or if the plan relates only to a services order under section 86 or a support order under section 91.
(3)If a plan does not contain the matters set out in subsection (1)(ea), it must, instead, set out the child’s or young person’s long-term needs and proposals for how those needs will be met (unless the plan relates only to a services order or a support order).
[21] The Family Court may, at any stage of the proceedings, if it appears to the Court to be expedient, direct that a medical, psychiatric, or psychological report should be available to the Court in respect of any young person to whom the proceedings relate.21 The Court must also obtain a report from a social worker before making a custody or guardianship under ss 101 or 110. That report has to include various matters set out in s 186, as follows:
186 Report by social worker
…
(2A) Every report provided to the court pursuant to subsection (1)(a) must (without limiting subsection (3)) make a recommendation, with reasons, on whether there is a realistic possibility that the child or young person to whom the report relates can be returned to the care of the parent, guardian, or other person who had the care of the child or young person before the care or protection order was made, and—
(a)if there is such a realistic possibility, must—
(i)set out the steps that the parent, guardian, or the other person must take, or the behavioural changes that the parent, guardian, or the other person must make, before the child or young person can be returned to the care of the parent, guardian, or the other person; and
(ii)recommend a time when, or a period within which, the option of returning the child or young person to the care of the parent, guardian, or other person will be pursued, having particular regard to the age of the child or young person; or
(b)if there is no such realistic possibility, set out—
(i)the child’s or young person’s likely long-term needs, and proposals for how those needs will be met; and
….
(3)Every report obtained pursuant to this section in respect of a child or young person shall include—
(a)such information as is required to be included in such reports by guidelines issued from time to time in writing by the chief executive after consultation with the Principal Family Court Judge:
21 Section 178(1).
(b)such other information as may assist the court in its consideration of the matter:
(c)such other information as the court may direct.
(4)Every report required pursuant to this section shall be prepared, where appropriate, in consultation with a Maatua Whangai worker.
(5)In this section, the term social worker includes a person employed in the speciality of social work by the director of a child and family support service, or by an iwi social service or a cultural social service, who consents to make a report under this section.
Grounds of appeal
[22] Ms Henderson filed an amended notice of appeal dated 14 July 2023 which was out of time. However, there was no opposition to the filing of the amended notice of appeal and it set out grounds similar to those in an earlier notice. While the notice includes material in the nature of submission and evidence, in the absence of any opposition, I grant leave for the amended notice to be filed and deal with the appeal on the basis of the grounds set out in that amended notice.
The grounds may be conveniently grouped under headings as follows:
(a)Predetermination or bias of the Judge:
(i)Predetermination.
(ii)Did the Judge form a view of Ms Henderson?
Did the Judge remain impartial in the decisions made?
(b)Adequacy of evidence/testing the evidence:
(i)Has the evidence been appropriately tested?
(ii)Is there any evidence to substantiate this?
(c)Process issues:
(i)Was jurisdiction available to the Court absent an application?
(ii)Was the pro forma application an abuse of process due to the prejudice caused to Ms Henderson by the delay?
(iii)Section 204 of the Oranga Tamariki Act in relation to rehearing.
(d)Ineffective assistance of counsel/consent issues:
(i)Ineffective assistance of counsel.
(ii)Was Ms Henderson aware of what she was consenting to?
(iii)Was the s 140 agreement signed under duress by Ms Henderson?
(iv)Whether it is clear at [46] of the judgment that respite care was sought by Ms Henderson.
(e)Oranga Tamariki’s position:
(i)Did Oranga Tamariki regress from its position regarding Ms F? If so, were Ms F and Ms Henderson informed that Oranga Tamariki’s position had changed regarding this?
(ii)Was Ms Henderson given adequate support from the appropriate agencies (in particular Oranga Tamariki)?
(iii)Was there a requirement for more intensive support for Ryan and Ms Henderson? Who is responsible for ensuring this level of support is there for them?
[24] Ms Henderson read her oral submissions from a prepared transcript. Her oral submissions took from the commencement of the hearing at 10 am until 3.30 pm. Ms Henderson’s McKenzie friend read the last few paragraphs of Ms Henderson’s
transcript at her request. Ms Henderson made her submissions in reply. The Court sat beyond the usual sitting hours, until 5.40 pm, to enable the matter to be finished. The Court breaks were adjusted to accommodate Ms Henderson at her request.22
[25] Ms Henderson’s oral submissions did not follow her amended notice of appeal or her written transcript. Her submissions referred to a number of historical events and to present arrangements which are outside the ambit of this appeal. I allowed Ms Henderson considerable latitude in her submissions.
[26] In view of the wide-ranging submissions made by Ms Henderson in the appeal and the procedural background in the Family Court, it is necessary to consider the background and the procedural history leading to the judgment under appeal.
Procedural history
[27] Ryan first came to the attention of Oranga Tamariki in 2014. A report of concern had been made about him relating to smacking (disclosed by Ms Henderson), hoarding, punitive parenting (including locking him out of the house and in the bedroom), inadequate food, lack of bathing and ill-fitting clothes. Support was put in place for Ms Henderson to care for Ryan. Further reports of concern were made in 2016 and 2017. In general terms, the concerns were about the way Ms Henderson managed Ryan’s behaviour, for instance withholding food from him if he had been naughty at home.23
[28] As a result of a third report of concern, a family group conference was held on 24 February 2021. Following that, a plan was formulated. It provided for the safety and support of Ms Henderson to care for Ryan, naming support organisations and counselling services that would be involved.24
22 The adjustments were made as recommended in a report handed up by Ms Henderson at the commencement of the appeal hearing [Communications Assistance Report]. It was entitled “Communications Assistance Report prepared by Talking Trouble Aotearoa NZ Ltd” and dated 13 December 2021.
23 March 2023 decision, above n 2, at [29] and [47]; and affidavit of Ms Thara Prabhakar, 12 October 2021, at [21].
24 Family group conference: record of decisions, recommendations and plans, 24 February 2020; and affidavit of Ms Prabhakar, above n 23, at [31].
[29] Further reports of concern led to a further family group conference on 26 February 2021.25 At that conference, an agreement for temporary care of Ryan was reached between Oranga Tamariki and Ms Henderson. Ryan was to be in Oranga Tamariki’s custody for one year pursuant to a s 140 agreement.26
[30] Ms Henderson was legally represented at the family group conference and says she was advised by her lawyer to sign the s 140 agreement. Ms Henderson now alleges she signed the agreement under duress. A s 140 agreement is able to be revoked by either party at any stage. Ms Henderson never revoked it.
[31] Ryan was with caregivers and various agencies supported him and Ms Henderson. Ms Henderson had supervised access once a week.
[32] There were further incidents reported when Ryan was in Ms Henderson’s care. Ms Henderson admitted she threatened to cut off Ryan’s fingers as a threat to scare him.27
[33] Ms Henderson said that Ryan needed to be medicated if he were to be returned to her care. She said she felt forced to sign the s 140 agreement.28
[34] On 14 October 2021, Oranga Tamariki made an application for a care and protection order (s 66), a custody order (s 101), an additional guardianship order (s 110) and an interim order placing Ryan in the custody of the Chief Executive pending determination of the proceedings (s 78).
[35] Ms Henderson responded by applying to discharge the s 140 agreement and applying for a s 91 support order.29 At a judicial conference held on 17 November 2021, Ms Henderson agreed not to terminate the s 140 agreement and not to withdraw Ryan from art therapy, which had been an issue of contention.30
25 March 2023 decision, above n 2, at [30]–[31].
26 At [30]–[31].
27 Affidavit of Ms Prabhakar, above n 23, at [41] and [46]; and affidavit of Mr Jono Cotton, 17 June 2022, at [20]–[21].
28 Affidavit of Ms Henderson, 8 October 2021; and affidavit of Mr Cotton, above n 27, at [30].
29 March 2023 decision, above n 2, at [33]–[40].
30 Chief Executive of Oranga Tamariki—Ministry for Children v [Henderson] FC Palmerston North FAM-2021-054-405, 17 November 2021 (Minute of Judge Broughton) at [9]–[10].
[36] On 1 February 2022, Mr Trainor filed a psychological report at the request of the Court. He recommended Ms Henderson continue therapy to resolve symptoms of post-traumatic stress disorder and to modify her destructive thought patterns. He recommended Ms Henderson and Ryan be given support to mend their relationship before consideration be given to their living together again.31
[37] Ms Henderson acknowledges there were care and protection issues for Ryan. She said these arose from her inability to manage his behaviour. Ms Henderson at the time said she had no issues in following the recommendations made by Mr Trainor.32
[38] A s 128 plan was then prepared and filed for Ryan to reflect the recommendations in Mr Trainor’s report. That plan included contact arrangements between Ryan and Ms Henderson as agreed between Oranga Tamariki and Ms Henderson.33
[39] On 15 February 2022 the Family Court, before the hearing of Oranga Tamariki’s application, recorded that agreement had been reached between the parties. A minute of that date records Ms Henderson as being represented by Ms Faimalie. The Judge recorded that by consent a s 102 custody order was granted in favour of the Chief Executive of Oranga Tamariki. Further, an interim guardianship order under s 110AA in favour of Oranga Tamariki was granted. The Judge approved the s 128 plan as adequate as drafted. A case management review was set down for 18 May 2022, with a judicial conference to be allocated no later than 28 July 2022. A direction was made for a psychologist’s report which would take into account the history and the information in the psychological report of Mr Trainor (dated 1 February 2022). The psychologist’s brief was set out in a consent memorandum signed both by Ms Henderson and by her lawyer. Mr Trainor’s report was to be released to both the “schema therapists” working alongside Ms Henderson and the report writer. A Judge was assigned to supervise the file.
31 March 2023 decision, above n 2, at [82].
32 Affidavit of Ms Henderson, 10 February 2022, at [8]–[15].
33 Affidavit of Mr Cotton, above n 27, at [54]–[61] and [63].
[40] Mr Cotton became Ryan’s Oranga Tamariki social worker in April 2022. He started holding informal fortnightly meetings between Ms Henderson, her counsel, a lawyer for the child and Oranga Tamariki. On 3 June 2022, Ms Henderson applied to discharge the interim custody order in favour of Oranga Tamariki and to vary the current custody order in favour of Ms F, who was Ryan’s caregiver from August/September 2022 until recently.34
[41] Various counselling and support work continued with Ryan, as well as therapy sessions funded by Oranga Tamariki for Ms Henderson to address psychological issues identified in schema issues.
[42] In July 2022, Oranga Tamariki filed an application for a further final s 102 order for six months for Ryan based on his need for care and protection on the grounds in s 14(1)(a) of the Oranga Tamariki Act, and also sought a guardianship order under s 110AA. About that time, Ryan’s teacher aide funding reduced to 25 hours a week as his behavioural concerns reduced.
[43] On 8 August 2022, the interim custody order was renewed until 3 October 2022 by consent and subject to access conditions.35
[44] Ms F as caregiver was approved in August 2022 and Ryan went to live with her in September 2022.
[45] In September 2022, Oranga Tamariki applied for the s 101 custody order and to be appointed an additional guardian.36
[46] A two-day hearing in the Family Court commenced on 29 September 2022 to hear the applications by Oranga Tamariki for s 101 and s 110 orders. Mr Fry, a psychologist, prepared a report for the Court and gave evidence at the hearing on 29 September 2022.37 On the completion of the evidence of Mr Trainor and Mr Fry,
34 March 2023 decision, above n 2, at [42]–[44].
35 At [3]; and Chief Executive of Oranga Tamariki—Ministry for Children v [Henderson] FC Palmerston North FAM-2021-054-405, 8 August 2022 (Minute of Judge Broughton).
36 March 2023 decision, above n 2, at [4].
37 At [86]; and Chief Executive of Oranga Tamariki—Ministry for Children v [Henderson] FC Palmerston North FAM-2021-054-405, 15 February 2022 (Minute of Judge Smith).
and following Mr van den Brink being sworn in, the hearing was adjourned as the parties accepted Ryan was a child in need of care and protection as defined under ss 14(1)(h) and 14AA(1)(h). The parties agreed that they would vary the s 102 order and prepare an agreed s 128 plan.38 The interim custody order was varied by consent to extend it to 9 February 2023, which was the full six-month period available for such an order.
[47] In October 2022, Ms Henderson sought that the matter urgently be placed back before the Family Court, as she alleged Oranga Tamariki had breached the s 128 plan. Ms Henderson dismissed her lawyer on 18 November 2022. From then on, she represented herself in the proceedings.
[48] Psychologists and counsellors continued to be involved. Ms Henderson began therapy with a new therapist to work on “schema” due to the unavailability of the previous therapist. Support continued for Ryan, although his teacher aide funding reduced to 20 hours per week.39
[49] On 31 January 2023, Oranga Tamariki filed further applications for a s 101 custody order and a s 110 additional guardianship order. Oranga Tamariki submitted that the application filed in September 2022 remained live but filed the present application as a “pro forma” application in the event there was uncertainty as to whether the Court had jurisdiction to determine the original application which had been adjourned in September 2022 following agreement between the parties.
[50] On 4 February 2023, Judge Smith issued directions concerning the reconvened hearing. He directed an affidavit of Mr van den Brink was to be included in the evidence as it did not cause prejudice to Ms Henderson, given the matters were within her knowledge and should have been able to be responded by her. He also made a direction concerning the redacted CYRAS notes (apparently notes kept by Oranga Tamariki relating to Ryan) to be filed no later than 10 February 2023 and that Ms Henderson could respond viva voce. The Judge requested Oranga Tamariki
38 March 2023 decision, above n 2, at [3], [5]–[14], [65], [74] and [86].
39 Affidavit of Mr Jono Cotton, 8 September 2022, at [40].
include in those redacted notes only what it considered relevant (as the original notes were voluminous).
[51]A hearing was set down for 28 February 2023.
[52] Ms Henderson filed affidavits by herself, Ms F and Ms S. Those three affidavits were filed out of time and then admissibility was dealt with in the judgment. Mr Fry filed a second report at the direction of the Court. Mr Trainor and Mr Fry again gave evidence and were cross-examined, including by Ms Henderson. Ms Henderson gave evidence and was cross-examined.
[53] Following the hearing, the Judge made the s 101 and s 110 orders and discharged the s 78 order as well as approving a s 128 plan.40
[54] In view of the fact that Ms Henderson made a number of submissions as to events which occurred after the appeal, for the sake of completeness, I record the procedural events occurring after the March 2023 decision.
[55] In May 2023 Ms Henderson made a first application for leave to the Family Court to vary the custody order made. This was declined on the basis there was no change in material circumstances. A second application for leave was also declined on 18 May 2023.
[56] On 1 June 2023 a further s 128 plan was filed in the Family Court for review. The plan was approved on 23 June 2023 by the Judge.41 At the time of that review Ryan was engaging in parent/child therapy with a parent/child therapist. According to the s 128 plan, Ms Henderson joined for part of the session. The Judge noted that Oranga Tamariki was to ask whether the therapist could “put any recommended steps in place for Ms Henderson as sought by her, which Ms Henderson had described to the Judge as needing to be ‘SMART goals’”.42
40 March 2023 decision, above n 2.
41 Chief Executive of Oranga Tamariki—Ministry for Children v [Henderson] FC Palmerston North FAM-2021-054-405, 23 June 2023 (Minute of Judge Broughton).
42 At [9(h)]. Ms Henderson explained that the acronym “SMART” meant Specific, Measurable, Achievable, Relevant and Time-bound.
[57] The custody and guardianship orders in favour of Oranga Tamariki were to continue with a further review to take place in six months’ time.43 Ms McKenna retained her appointment as counsel for the child in the Family Court and is involved in the review hearings.
The Family Court decision
The September 2022 hearing and interim judgment
[58] Ms Henderson had been represented by counsel, Ms Faimalie, before and during the September 2022 hearing. A minute of Judge Smith dated 29 September 2020 records the parties’ agreement to adjourn the hearing and the making of various interim orders.44 His Honour recorded that the Court had an application before it for a care and protection order by Oranga Tamariki made on 8 September 2022 and that Oranga Tamariki had long been involved in relation to Ryan. The proceedings had first started while he was 10 years old, and he was now
12. The Judge noted that a s 101 interim custody order had been made previously, had been extended by the Family Court on 9 August 2022, and was due to expire at 5 pm on 3 October 2022.45
[59] The Judge recorded the September 2022 hearing had begun with evidence from Mr Fry, a psychologist retained to complete a s 133 report,46 and from Mr Trainor, another psychologist employed by Oranga Tamariki.47
[60] The Judge noted that after their evidence was given, the parties felt they could work their way through the issues without further evidence or cross-examination being undertaken. He noted the hearing commenced at 9 am (on the previous day) and that it was “now 5.30pm on the second day”. The Judge noted the parties had worked on
43 At [9(c)].
44 Chief Executive Oranga Tamariki—Ministry for Children v [Henderson] [2022] NZFC 10070 [2022 interim decision]. The minute is described as a judgment (in its band) but the Judge refers to it as a minute in the text.
45 At [1]–[2].
46 As this was a proceeding under the Oranga Tamariki Act, the report was prepared under s 178 of the Oranga Tamariki Act, rather than s 33 of the Care of Children Act. Nothing turns on this.
47 2022 interim decision, above n 44, at [3].
the matter all day.48 Following the September 2022 hearing he recorded the following:49
(a)there was no agreement by Ms Henderson that there should be a s 101 order, which is the usual follow-on from a s 102 or a dismissal, as may be appropriate.
(b)Ms Henderson really wanted to prove that she was able to undertake Ryan’s care.
(c)The evidence of Mr Fry and supported by Mr Trainor was that Ms Henderson needed to undergo some serious work for schema before she would be in a position to have full day-to-day care of her son. The Judge had no doubt that she had every intention to undergo that work but said “we need to see the outcomes of that before the Court would be comfortable in there being an order in her favour in that way.”50
(d)The s 102 order which was in place was for shorter than the maximum period of six months and was to be varied to extend to 9 February 2022 (the full six months).
(e)By consent the Judge varied the s 102 order to extend it to 9 February 2023.
(f)No s 101 order would be made, although there had been discussion about care to continue with Ryan’s current caregiver Ms F, Ms Henderson’s cousin. Ryan had been with her only approximately three weeks at the time of the hearing, so the Judge indicated it was too early for there to be a s 101 order in her favour. He indicated that could be addressed by “a submissions-only hearing prior to 9 February to address that issue”.51
48 At [4].
49 At [5].
50 At [6]
51 At [10].
[61] The Judge also noted following the September 2022 hearing he wanted to “make clear to all parties” that unless there was “sign-off by the people working with Ms Henderson otherwise”, a s 101 order would be made early next year. He noted that if the s 101 order was not in favour of Mr F, it should be in favour of Oranga Tamariki if there was “no other person that is appropriate”.52 He went on to note that the parties had by consent worked through an amended plan dated 29 September 2022 which had been considered in detail and he was then content that the plan was “appropriate in all the circumstances”.53 The Judge noted it provided for reporting of both Ms Henderson and Ryan as to how they were progressing.54 His Honour directed that if anything came from those reports in the interim in respect of either Ryan or Ms Henderson, then there was leave to bring the matter back before the Court on 72 hours’ notice.55
[62] His Honour had specified that there be a directions conference scheduled for late January 2023 to address the new plan or orders that were to be made in light of the amended plan and urged Oranga Tamariki to provide the relevant documents early in the new year, given the order would expire on 9 February 2023.56
[63] At the end of the September 2022 minute the Judge added under the heading “Addendum” that Mr Fry’s brief was enlarged “to enable him to engage with Ryan to monitor the implementation of the plan from Ryan’s perspective.”57 He also directed that Ms McKenna as lawyer for Ryan was “to liaise with Mr Fry for an update on a regular basis”.58
[64] The Judge recorded that Oranga Tamariki consented to a s 101 order being made in favour of Ms F in February 2023 provided everything was progressing “as is intended by the plan, and that Ryan is in a safe and well place”.59 He went on to record that he took Ms Henderson’s indication that she wished “any s 101 order to be in
52 At [11].
53 At [12].
54 At [11]–[12]
55 At [13].
56 At [14].
57 At [17].
58 At [17].
59 At [18].
favour of Ms F” to be an acknowledgement that care and protection issues existed and that such an order was appropriate. He went on to say:60
… That is not to say that we are making a care and protection order today other than the s 102 extension that I have agreed to, but that is a position from which Ms Henderson cannot resile when we come to February next year.
Subsequent events
[65] The Judge directed in a minute of 14 December 2022 that the parties, including the social worker, Mr Fry, Ms Henderson and Ms F would discuss issues which had arisen and there was to be a next call on 27 January 2023 with a report as to progress filed three days beforehand. Mr Fry’s reports were directed to be made available to the psychologist Mr Buhr.61
[66] Oranga Tamariki filed further ss 101 and 110 applications on 30 January 2023 as “pro forma applications” in the event there was any uncertainty as to the jurisdiction to determine the original application.
[67] The proceedings were called before Judge Moss on 31 January 2023. She noted in a minute of that date that the applications had been part-heard by Judge Smith and scheduled a conference. A settlement conference was held on 2 February 2023 at which Oranga Tamariki indicated that it still sought a s 101 custody order. Oranga Tamariki identified the then current therapeutic supports for Ryan and Ms Henderson and confirmed it would cover the financial costs.
[68] The s 102 interim custody order made on 29 September 2022 was to have expired on 9 February 2023.
[69] On 8 February 2023 the matter again came before Judge Moss, who made a s 78 interim order to maintain custody for Oranga Tamariki until the s 101 application could be finally determined. The Judge noted that having reviewed the transcript of the September hearing, on the evidence of Mr Fry and Mr Trainor, it would be contrary
60 At [19].
61 [Henderson] v Oranga Tamariki – Ministry for Children FC Palmerston North FAM-2021-054- 405, 14 December 2022 (Minute of Judge Smith). Mr Buhr was a psychologist engaged to work with Ms Henderson.
to the needs and best interests of Ryan to let the s 102 order expire without the exercise of the Court’s jurisdiction under s 78. She noted there was no evidence that Ms Henderson had addressed any issues which appear to adversely impact on Ryan’s care and no evidence of gains made in any therapeutic programs.62
[70] On 28 February 2023, the Family Court held a further one-day hearing. Mr Cotton, Ryan’s social worker, provided a report and gave evidence and was cross-examined. Mr Fry had filed a second report dated 22 February 2023. He gave evidence and was cross-examined. Ms Henderson filed evidence by affidavit. She cross-examined the Oranga Tamariki witnesses, gave evidence and was cross-examined.
Judgment of 17 March 2023
[71] The Judge commenced the March 2023 judgment by noting that in the course of the two-day hearing commencing on 29 September 2022, having heard evidence from Mr Fry and Mr Trainor, “the parties felt they could work their way through the issues without further evidence or cross-examination being undertaken.”63 His Honour went on to say that it had become obvious from Mr Fry and Mr Trainor’s evidence that Ms Henderson needed to undergo some further work before the Court would be comfortable with an order in her favour.64
[72] The Judge noted that following the September 2022 hearing, matters had not progressed with the speed necessary for the proceeding to be concluded before the expiry of the s 102 order on 9 February 2023.65 There had been a s 78 order in favour of the Chief Executive made and that was the subject of a review at this hearing.
[73] The Judge noted the February 2023 hearing was intended to determine in whose favour a s 101 custody order for Ryan should be made and whether Oranga Tamariki should be appointed as an additional guardian. Ms Henderson’s approach was “contrary to concessions and agreements she made in previous
62 [Henderson] v Oranga Tamariki – Ministry for Children FC Palmerston North FAM-2021-054- 405, 8 February 2023 (Minute of Judge Moss); and the 2022 interim decision, above n 44, at [16].
63 March 2023 decision, above n 2, at [6].
64 At [7].
65 At [15].
hearings” in particular before him in September 2022.66 Ms Henderson had dispensed with the services of her lawyer and was representing herself. The Judge commented that she had taken the pro forma application filed by Oranga Tamariki on 30 January 2023 as a whole new application and sought “to relitigate all the matters that had previously been dealt with over an extensive period of time.”67
[74] The Judge dealt with affidavits filed by Ms Henderson out of time and Ms Henderson’s affidavit was described as “extensive”.68 The Judge would not admit the affidavits of Ms F and Ms S. The Judge said he had reserved his decision on whether they would be accepted to give him the opportunity to read them. He refused leave for the affidavits by Ms F and Ms S to be put before the Court on the basis that they were mainly “hearsay, the content is not factually directed but are, in essence, submissions on behalf of Ms Henderson.”69 The Judge went on to say that they did not assist the Court in any way whatsoever and to have admitted them into evidence would have required cross-examination, which would have meant the hearing could not be concluded within the day allocated. He said that “given the Court’s current backlog, it may have been some months before a longer hearing time could be accommodated.”70
[75] His Honour went on to say that Ms Henderson’s affidavit suffered from the defects that were apparent in the affidavits of Ms F and Ms S. It was “primarily argumentative, forming a long and rambling submission about all the matters with which she disagrees”.71 However, the Judge accepted the affidavit into evidence rather than going through the affidavit and striking out parts as suggested by Oranga Tamariki. The Judge said he would deal with the issue by making assessments as to relevance as he went through it.72
[76] The Judge noted that Ms Henderson’s position was that there were no care and protection issues for Ryan when he is in her care and that he should be returned to her
66 At [20].
67 At [20]–[21].
68 At [22].
69 At [23].
70 At [23].
71 At [24].
72 At [22]–[24].
immediately.73 Ms Henderson denied matters which she had agreed to in the past and resiled from working to address her relevant issues. This was primarily on the basis that “Oranga Tamariki has failed to provide them [sic] and therefore they are not serious in their statements that return to home is their goal.”74 The Judge noted that Ms Henderson had a distrust of Oranga Tamariki and had ceased to work with them “in any constructive way”, particularly in the last few months.75
[77] The Judge then noted that he therefore needed to determine whether care and protection issues still exist “and if so, what the appropriate order or orders should be”.76
[78] The Judge said there had been concerns reported in relation to Ryan for some years, the first being raised with Oranga Tamariki in March 2015 when Ryan was four years of age. The concerns at this stage were unresolved and no steps were taken. He had been in the custody of Oranga Tamariki since 26 February 2021, when he was 10. He had come into Oranga Tamariki’s care under a s 140 agreement signed by Ms Henderson on that day.
[79] The Judge noted that while Ms Henderson was now denying there were concerns, those concerns were well documented and admitted by Ms Henderson. The Judge pointed to her affidavit of 21 October 2021 accepting that she needed assistance which she was unable to provide for Ryan and saying that her view was that his behaviour was a neurological issue. In her affidavit of 15 November 2021, the Judge noted that Ms Henderson had said she attempted to the best of her ability to manage Ryan’s behaviours and acknowledged that her past actions had not been enough and that she had sought intensive support for Ryan’s behaviour. The Judge found that Ms Henderson had physically punished the child, referred to her withholding food from him and noted she had made comments to Ryan in attempting to manage his behaviour that in hindsight she accepts were a “terrible remark to make to a child”.77
73 At [26].
74 At [26].
75 At [27].
76 At [28].
77 At [29]–[43].
[80] The Judge noted a common theme adopted by Ms Henderson was that if she disagreed with the deponent “then they are lying or conspiring against her.”78
[81] The Judge went through references to Ryan’s behaviour taken from the notes and various affidavits. He referred to an incident, which Ms Henderson said had happened twice, concerning Ryan tying a cord around his neck. The Judge noted reports back to 2016 about Ms Henderson asking the school to withhold food from Ryan as he had been naughty. The school reported Ryan was going to school with inappropriate lunches like “dry Weetbix and nothing else”.79
[82]The Judge also referred to a number of incidents concerning Ryan as follows:80
[58] On 3 February 2021, there was a police callout from Ms Henderson. The National Contact Centre (NCC) note recorded:
Stefan has attended a job at Ryan’s home. He has attempted suicide three times. Ryan has been involved with Oranga Tamariki. There was an FCG held but Stefan does not know the outcome. Ryan lives with his mother with no family support.
[59] Ms Henderson takes objection to the statement that there were three attempts, saying it was only two. From the Court’s position, any such attempt is a concern, whether it be one, two or three.
[60] On 5 January 2021, Ryan’s school reported a similar incident where Ryan tied a cord around his neck when he was escalated. Further, on 12 February 2021, there was another such similar incident. The NCC report stated:
Ms Henderson’s child Ryan is under Donata, a social worker in Palmerston North. Every evening, Ryan is screaming for about four hours. He also attacks Ms Henderson. Police were called out on Monday and Tuesday. Police calm him down but as soon as they leave, Ryan will escalate again. On Wednesday, Ms Henderson asked her friend to come over. Yesterday Ryan attacked a child at school. Ms Henderson has shut herself in the room and Ryan is wondering around the house.
[61] On the follow up call by NCC on 12 February, the reported states that Ms Henderson rang the police and was waiting for them to reply. The reported stated:
Ms Henderson has already rung the police. When the police arrived, Ms Henderson will tell the police that she cannot manage Ryan and
78 At [43].
79 At [47].
80 Footnotes omitted.
that she wants him to be placed at either Tai Matai or with Oranga Tamariki.
[62] Ms Henderson struggled to deal with Ryan’s behaviour. It was made apparent on 17 February 2021 when Ryan was interviewed disclosing the punching and kicking. He also stated that Ms Henderson had a knife and that she would cut him with the knife, pointing to a scar and stated Ms Henderson cut him during and escalation with a pen.
[83] The Judge identified the difficulties that schools and organisations had dealing with Ms Henderson’s constant complaints and her need to control every situation as follows:81
[63] Ms Prabhakar noted that she was concerned the ability of the school or any other organisation involved with Ryan have depended on the ability of those agencies to agree with Ms Henderson. She noted that with what happened with [redacted] School, they felt it was overwhelming to deal with Ms Henderson’s constant complaints after she learnt the school had made the report of concern and they struggled to put supports in place for Ryan due to this. Ms Prabhakar’s concern was that Ms Henderson did not have any insight into the needs of Ryan and that her focus was always on controlling the situation, giving less thought about the needs and aspirations of Ryan. In her view, Ms Henderson has made decisions for Ryan that were not in his best interests on several occasions.
[84] The Judge noted that Ms Henderson did not appear to understand the issues required to be resolved to deal with the needs of Ryan in order to ensure that Ryan is returned to her care. He noted that the discussion at the September 2022 hearing was to ensure that Ms Henderson did undertake the work necessary to be able to take care of Ryan.82 The Judge went on to say that Ms Henderson’s approach was that because matters had not panned out as Ms Henderson had anticipated, it therefore was the fault of Oranga Tamariki and that justified the return of Ryan to her. However, the Judge noted:
[67] From the Court’s perspective, unless there is clear evidence that Ms Henderson is in a position to care for Ryan and to deal with his issues, as and when they should arise, there is a clear concern as to his care and protection until that work has been carried out and verified.
[85] The Judge went on to note that the work had not been completed and that while Ms Henderson presented as “intelligent and very committed to the process”, she
81 Footnote omitted.
82 At [64]–[65].
presented as feeling prosecuted and spoke in a blaming manner.83 The psychologist who had been working with Ms Henderson, Ms Brosman, was no longer available to do so, and Ms Henderson was referred to Mr Buhr. His recommendation was that Ms Henderson and Ryan engage in “parent-child therapy with a suitable therapist.”84 The Judge said the work had “not really got off the ground” and there remained a care and protection issue insofar as Ryan was concerned.85
[86] The Judge noted that relationships established between Ryan and third parties including Mr L (reputedly the sperm donor that led to Ryan’s conception, who was introduced to Ryan through Ms Henderson) were in jeopardy. The Judge said he was not concerned with determining whether Mr L was Ryan’s father or not but he was concerned about the importance of Mr L (and other parties) to Ryan. He went on to say:
[77] As the relationship between those persons has increased, Ms Henderson’s antipathy to them has also increased. She is now intent on destroying any such relationship at all.
[78] In Mr Fry’s reports he has set out the importance that Ryan placed on these people. Approximately two months before this hearing came, a text was sent on Ryan’s phone to Mr Cotton, which stated that he did not wish to see Mr L anymore. As Mr Fry points out in his second report, it is concerning this change of attitude took place so suddenly.
[87] The Judge found that the text purporting to be from Ryan was “either written by or at the behest of Ms Henderson.”86 The Judge said that it was apparent that she had been talking continually with Ryan about the issues before the Court and sought to “destroy the relationship he has with Mr L.”87 His concern was expressed as follows:
[80] That Ms Henderson would use Ryan in this way to get the result that she wants in this proceeding, heightens the concern that the Court has as to her parenting abilities. She is prepared to psychologically abuse her son for her own means. That is a care and protection issue.
[81]The reports of Mr Trainor and Mr Fry support the above statement.
83 At [68].
84 At [71].
85 At [72].
86 At [79].
87 At [79].
[88] The Judge noted that Mr Trainor was cross-examined at the September 2022 hearing, when his focus had been identifying any mental health conditions experienced by Ms Henderson and, if necessary, to make recommendations as to what might be done to address those. The psychologist reported Ms Henderson held deeply internalised beliefs (schema) which indicated she had difficulty with “emotional awareness and healthy regulation”, was often suspicious and mistrustful, and adhered to a set of inflexible internalised rules and standards she expects others (unrealistically at times) to achieve.88 The report noted that her inflexibility meant Ms Henderson needed as much certainty and perhaps control as possible and this was “often underpinned by an intolerance for predictability and ambiguity which can be experienced as threatening, stressful and anxiety provoking”.89
[89] The Judge noted that Mr Trainor was of the opinion Ms Henderson would benefit from specific therapy as a necessary step before Ms Henderson and Ryan lived together again full-time. The Judge noted Ms Henderson had not engaged in such therapy, with the result that there was “still an issue which she needs to address”.90
[90] The Judge referred to the reports of Mr Fry dated 27 September 2022 and 22 February 2023, noting that he had been cross-examined at the September 2022 hearing by Ms Henderson’s counsel and at the February 2023 hearing by Ms Henderson in person.
[91] The Judge concluded that the circumstances in which he was required to consider whether the child was in need of care and protection or was suffering or likely to suffer serious harm included whether the child or young person was, or was “likely to be, abused (whether physically, emotionally, or sexually) deprived, ill-treated or neglected.”91 He referred to s 4 of the Oranga Tamariki Act setting out the purposes of the Act, including supporting and protecting children and young persons, “to prevent them from suffering harm (including harm to the development and well- being), abuse, neglect, ill-treatment, or deprivation or by responding to those things.”92
88 At [83].
89 At [83].
90 At [84]–[85].
91 At [92]–[96].
92 At [95], citing the Oranga Tamariki Act, ss 4(1)(b) and 4A(1).
[92] The Judge concluded that the original care and protection concerns had been established and that Ms Henderson, by her own statements, “was incapable of caring for Ryan” and had “done little to address the issues which led to Ryan leaving her care.”93 He then made the orders for custody in favour of Oranga Tamariki and appointed the Chief Executive as the additional guardian of Ryan.
[93] Before turning to consider the grounds of appeal I deal with Ms Henderson’s application to adduce further evidence on appeal.
Application to adduce further evidence on appeal
[94] Ms Henderson filed an application to adduce further evidence. It was not specifically argued in oral submissions. The evidence sought to be adduced is set out in Ms Henderson’s affidavit dated 24 July 2023. The further material was voluminous and includes:
(a)The s 128 care plan.
(b)The Court transcripts of 20 February 2023.
(c)Emails and various records setting out her concerns due to Ryan’s care, including lack of education, allowing him to access inappropriate websites, physical force used on Ryan to protect Oranga Tamariki’s car and an assault at a care facility.
(d)Affidavits of Ms Henderson, Ms S and Ms F which had been excluded by the Family Court Judge on 28 February 2023.
(e)Evidence relating to Mr Trainor not being a qualified “schema therapist”, in particular evidence in a document which she produced that there is no evidence that schema therapy affects parenting.
(f)Evidence concerning the s 140 agreement dated 26 February 2021.
93 At [99].
(g)Evidence about access, including emails as to changes with access.
(h)Oranga Tamariki case records.
(i)Evidence of emails and other material showing Oranga Tamariki had refused to work with Ms Henderson for years and “continuously moved the goal posts”.
(j)Evidence as to inaccurate records filed with the Family Court.
(k)Evidence showing that Oranga Tamariki has always showed bias against her.
(l)Evidence supporting her claim of improper legal advice given by her lawyer representing her. Ms Henderson says a lawyer did not do as she was instructed and gave Ms Henderson “bad legal advice”. The evidence related to material that she said she gave her lawyer and her lawyer did not use.
(m)Evidence of lack of support, including research she had done on how to manage Ryan’s behaviour.
(n)Current issues about access.
[95] A party to an appeal may adduce further evidence only with leave of the Court.94
[96] The Court may grant leave if there are special reasons for hearing the evidence95 The power is to be exercised sparingly and the Court typically enquires whether the evidence is fresh, cogent and material.96
94 High Court Rules, r 20.16(2).
95 Rule 20.16(3).
96 Comalco New Zealand Ltd v Television New Zealand Ltd (1996) 10 PRNZ 573 (HC) at 579.
[97] In rare circumstances, evidence that was reasonably available for the hearing at first instance may be admitted.97
[98] The evidence will require a de novo assessment and consideration of how it affects the correctness of the decision under appeal.98
[99] I do not intend to address each item sought to be adduced separately. There was a substantial amount of material before the Family Court such as the case notes and Ryan’s history. The appeal should be dealt with on the basis of the material that was before the Family Court.
[100] However, I comment in general terms on the present issues causing Ms Henderson concern about the s 128 plan and about the excluded affidavits.
[101] In relation to events which have occurred since the proceeding was heard in February 2023, many of Ms Henderson’s concerns relate to issues concerning the s 128 plan. The plan is intended to detail the objectives sought to be achieved for Ryan and the services and assistance which is to be provided for him as well as the objectives and steps that a parent should take or the “behavioural changes” that must occur before he is returned to his mother. The content required in such plans is set out in s 130 set out above. The s 128 plan is a plan for the future and is in many respects aspirational. It is expected there will be some flexibility in the arrangements.
[102] Ms Henderson indicated the present arrangements were such that she had Ryan in her home for a substantial amount of the time, including after school and on weekends. This had progressed from having access to him on two days only. The increase in time she was spending with Ryan had occurred since the last school holidays, which she thought was about the end of July 2023.
[103] One concern Ms Henderson had was that Oranga Tamariki had changed the time for her to pick up Ryan. The variation was from a 7 pm pick up to a 6:30 pm pick
97 Complaints Committee No 1 of the Auckland District Law Society v P (2007) 18 PRNZ 760 (HC) at [21].
98 Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [31].
up. She said this was unfair and was merely to convenience Oranga Tamariki or the caregiver.
[104] It is inevitable that some flexibility is generally be required in executing a s 128 plan. Oranga Tamariki has the care of Ryan under s 101 and is entitled to decide the terms and conditions of any person having access to Ryan. Therefore, if there are adjustments to access times, Oranga Tamariki may make the adjustments.99
[105] The mechanism for review of the s 128 plan has been set by the Family Court. It is reviewed every six months. The fresh issues raised are outside the ambit of this appeal and appropriately dealt with in the Family Court.
[106]The Judge said in relation to the affidavits of Ms Henderson, Ms S and Ms F:100
[23] I refused leave for the affidavits by Ms F and Ms S to be put before the Court. Most of those affidavits are hearsay, the content is not factually directed but are, in essence, submissions on behalf of Ms Henderson. They do not assist the Court in anyway whatsoever. To have admitted them into evidence would have required cross-examination and that it would have meant the hearing could not concluded within the day allocated. Given the Court’s current backlog, it may have been some months before a longer hearing time could be accommodated.
[107] I have reviewed the affidavits of those deponents. They contain the views of the deponents and submissions in support of Ms Henderson’s position. Most of the “evidence” in them is hearsay and peripheral to the matters in issue. If they had been admitted and counsel had sought to cross-examine the deponents, the time required for the hearing would have been lengthened significantly. The Judge made no error in refusing to allow them to be adduced in evidence.
[108] I do not consider any of the evidence sought to be adduced is fresh, cogent, and material. Leave to adduce the fresh evidence is refused.101
99 Oranga Tamariki Act, s 107.
100 March 2023 decision, above n 2.
101 High Court Rules 2016, r 20.16.
Predetermination and bias
[109] The allegations that Ms Henderson advances are essentially that the Judge had predetermined the outcome of the proceeding or was biased.
[110] Ms Henderson says that Judge Smith had already predetermined at the February 2023 hearing that he was going to issue a s 101 custody order. She said that while new evidence was accepted at the later hearing, that was only on the basis of relevance for supporting the making of the s 101 order. Ms Henderson says that while her affidavit was accepted as evidence, she was never cross-examined by either Oranga Tamariki or the lawyer for the child on the evidence contained in her affidavit. In addition, she said the Judge rejected the affidavits filed by Ms F and Ms S on the basis that the evidence contained in those affidavits was not relevant. Ms Henderson says that her application for discovery was never heard and therefore not granted, and an “amicus curiae” for her denied.
[111] The Judge was entitled to take into account concessions that Ms Henderson made in the course of the September 2022 hearing. At that stage, she agreed to the s 102 order in favour of Oranga Tamariki and to a plan which included further work and counselling for her to deal with the issues identified which were affecting her parenting of Ryan and necessitated the custody order and the support by way of counselling and psychological assistance. Ms Henderson agreed to those arrangements through her lawyer at the hearing. These arrangements were consistent with the care and support arrangements made a year earlier in February 2022 pursuant to the memorandum she signed seeking consent orders. They are also consistent with the s 140 agreement that she had earlier agreed to.
[112] The fact that Ms Henderson subsequently dispensed with the services of her counsel and acted for herself for the second part of the hearing does not mean she can require that the hearing to begin again, nor can she resile from the concessions made on her behalf as to the evidence and how the hearing would be conducted. The Judge was responsible for the management of the hearing. He noted in his March 2023 decision, that there had only been a day allocated for the hearing and he was required to ensure that the time was used well and focussed on relevant issues — namely
whether Ryan needed care and protection and in particular whether he was safe with Ms Henderson as his full-time carer. He was not required to embark on a wide-ranging review of peripheral matters such as whether Ms Henderson now disputed her agreement to the earlier s 140 agreement.
[113] At the same time, Ms Henderson was entitled to a fair hearing. In my view she did receive a fair hearing. Despite Ms Henderson’s concessions made at the September 2022 hearing, the Judge in the March 2023 judgment addressed the question of whether a s 101 order was appropriate at the time of the February 2023 hearing. He reviewed Ryan’s involvement with Oranga Tamariki as well as the acknowledgements and statements made by Ms Henderson in the past. The Judge had a range of sources of information regarding care and protection issues. At the September 2022 hearing, Judge Smith had heard evidence from Mr Trainor and Mr Fry, both psychologists. He also had affidavit evidence spanning several years from Oranga Tamariki social workers Mr Cotton, Ms Mitchell and Ms Prabhakar. He had evidence from Ms Henderson and Ms F as well as therapeutic reports from Ms Bosman and Mr Buhr, and reports, plans, and family group conferencing reports relating to Ryan. At the February 2023 hearing, Mr Cotton, Ms Henderson and Mr Fry gave updating evidence. Ms Henderson personally cross-examined both Mr Cotton and Mr Fry extensively. She was also cross examined and filed submissions at the hearing.
[114] The test for apparent bias has been expressed by the Supreme Court in the following way:102
[Whether] a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.
[115] The two-step test involves first the identification of what it is said might lead a Judge to decide a case other than on its legal and factual merits, and secondly, an articulation of the logical connection between the matters raised and the feared deviation from the course of deciding the case on its merits.
102 Saxmere Co Ltd v Wool Board Disestablishment Co Ltd [2009] NZSC 72, [2010] 1 NZLR 35 at [3].
[116] While the Judge had noted the concessions made at the September 2022 hearing which had resulted in the interim custody orders being made by consent, he specified that he was required to consider “whether care and protection issues still exist and if so, what the appropriate order or orders should be.”103 He noted that Ms Henderson’s position was that there were “no care and protection issues for Ryan when he is in her care and that he should be returned to her immediately.”104
[117] The Judge then carefully went over the background, noting that Ms Henderson had earlier accepted that Ryan’s behaviour was out-of-control at home and at school and that she accepted Ryan needed the assistance which she was unable to provide for him.105 He was entitled to rely on earlier concessions and agreements by Ms Henderson but was careful to note he needed to make a finding on the current position.
[118] The Judge concluded there was evidence that there were care and protection issues in relation to Ryan and that Ms Henderson had not completed the work that was needed before she would be in a position to take Ryan back into her care, saying:106
[68] It is frustrating that the work which commenced was unable to be completed but it would appear from the report of Lila Bosman, clinical psychologist, that Ms Henderson presented in a defensive and argumentative manner. While she presented as intelligent and very committed to the process, her presentation was clear that she felt prosecuted and spoke in a blaming manner and used factual statement to try and elicit sympathy for her situation. It is noted that Ms Henderson is very aware that she lacks effective parental control in her relationship with Ryan. In her recommendations, Ms Bosman stated:
Ms Henderson is not currently in a position to take sole responsibility for Ryan’s care but if she feels like she is being treated fairly and with clear guidelines, she is likely to be one of the more stable figures in Ryan’s life. A structured, wraparound service is recommended.
[69] Ms Bosman also recommended Ms Henderson continued to receive ongoing therapy.
[70] Following Ms Bosman being no longer available to work with Ms Henderson, she was referred to Mr Steven Buhr. In his report of 17 February 2023, he reported that Ms Henderson holds a significantly hostile opinion of Oranga Tamariki, one that she further links to anyone who has been
103 March 2023 decision, above n 2, at [27].
104 At [26].
105 At [34]–[35].
106 Footnotes omitted.
or is involved in the case pertaining to Ryan and her, such as previous psychologists, Court officials and the like. Ms Henderson, in his view, can always provide reason to be angry with, and hostile towards, Oranga Tamariki and related parties. It was expressed in therapy that he was associated by her with Oranga Tamariki and hence she could not be fully engaged and open in therapy, as it would be detrimental to her getting Ryan back into her care.
[71] Mr Buhr’s recommendation was that Ms Henderson and Ryan engage in parent-child therapy with a suitable therapist.
[72] It is concerning to the Court that the work which was identified in September 2022 to be done by Ms Henderson has not really got off the ground. That leaves the Court in a situation where its concerns are that there is still a care and protection issue as so far as Ryan is concerned.
[119] The Judge went on to refer to the evidence of Mr Fry, and Ms Henderson’s antipathy toward people with whom Ryan had formed a relationship. Mr Fry had noted the influence of Ms Henderson on Ryan. The Judge said:107
[78] In Mr Fry’s reports he has set out the importance that Ryan placed on these people. Approximately two months before this hearing came, a text was sent on Ryan’s phone to Mr Cotton, which stated that he did not wish to see Mr L anymore. As Mr Fry points out in his second report, it is concerning this change of attitude took place so suddenly.
[79] The way in which that transpired leaves the Court in no doubt that text was either written by or at the behest of Ms Henderson. It is apparent she has been talking continually with Ryan about the issues that are before the Court and seeks to destroy the relationship he has with Mr L.
[80] That Ms Henderson would use Ryan in this way to get the result that she wants in this proceeding, heightens the concern that the Court has as to her parenting abilities. She is prepared to psychologically abuse her son for her own means. That is a care and protection issue.
[81]The reports of Mr Trainor and Mr Fry support the above statement.
[82] Mr Trainor provided a report annexed to his affidavit of 1 February 2022. He was cross-examined at the September 2022 hearing. His focus was on identifying any mental health conditions being experienced by Ms Henderson and if necessary, make recommendations as to what might be done to address these.
[83] Mr Trainor reported Ms Henderson deeply held internalised beliefs (schema) which indicate that she has significant difficulty with emotional awareness and healthy regulation, is often suspicious and mistrustful, adheres to a set of inflexible internalised rules and standards she expects others (unrealistically at times) to achieve. Her inflexibility likely serves as a method for Ms Henderson having as much certainty and perhaps control as possible. This is often underpinned by an intolerance for unpredictability and ambiguity which can be experienced as threatening, stressful and anxiety provoking.
107 Footnotes omitted.
[84] Mr Trainor was of the opinion Ms Henderson would benefit personally from engaging a (schema) therapy to improve her awareness of how her past has created her internalised beliefs, how these are triggered, and how they can be modified and softened so that repeated, unhelpful, and even damaging patterns are disrupted. In Mr Trainor’s view that is a necessary step before Ms Henderson and Ryan lived together full time again.
[85] Ms Henderson has not engaged in such therapy, possibly through no fault of her own but certainly not assisted by her. The actions she has taken since the September 2022 hearing demonstrate her schema are a strong as ever. The result though, whatever the reason is it is still an issue which she needs to address.
[86] Mr Barry Fry provided two reports on 27 September 2022 and on 22 February 2023. He was cross-examined in September 2022 and again on 28 February 2023 after hearing the cross-examination of Ms Henderson and other deponents.
[87]Mr Fry reported:
193.In my perception, a change in the nature of adult dynamics is Ryan’s first priority. Counselling, even reunification counselling as mother termed it, without attention to his primary need would be only marginally successful.
194.In my view, Ryan presents a number of other significant areas of need:
•A positively orientated management style in which his productive behaviour, is received with approval and appreciation.
•A quiet and measured response to emotional outbursts or opposition to directions. A parental outburst will serve only to escalate a confrontation.
•The provision of outside support for Ryan, in the nature of his mentor A.
•The avoidance of interpersonal tensions among the adults in Ryan’s life. The perception of such will aggravate Ryan’s existing anxiety and consolidate his felt need to compartmentalise his feelings and relationships.
•He needs to see and hear the adults in his life living and working in harmony.
•He needs to have his self confidence and esteem nurtured.
[88] The tension as to Ryan’s contact with Mr L and Ms T was by then an issue. It was clear to Mr Fry Ryan did not share his mother’s views and judgements of them. Ryan valued their influence and companionship, as well as Ms T’s daughter.
[120] The Judge went on to conclude that the original care and protection concerns had been established and that Ms Henderson had done little to address the issues which led to Ryan leaving her care. He said:
[100] Furthermore, Ms Henderson has shown she is incapable of putting Ryan’s needs above her own. It is clear she has had adult conversations with Ryan to assist with her obtaining his return. She has placed him in a situation of conflict between her views and his own as to those people who are important to him. Mr Fry’s belief is Ryan will have zero contact with those people, even if he is with Ms F, if Oranga Tamariki did not have input he believes Ms F will not encourage Ryan to have contact with those people. I accept that view.
[101] There can be no confidence Ryan would be safe in Ms Henderson’s care.
[102] At the hearing in September 2022, one of the reasons for delay in a determination was to see if the placement with Ms F would meet Ryan’s needs. As a relative of Ms Henderson, she was a whanau placement.
[103] Regrettably, Ms F has shown she will follow Ms Henderson’s wishes and accepts at face value Ms Henderson’s statements. I accept the submission of the lawyer for Ryan Ms F is an ‘ally’ of Ms Henderson and that Ryan’s best interests and well-being will take a back seat to the interest of Ms Henderson.
[104]In my view Ryan needs to be in the care of Oranga Tamariki.
[121] Ms Henderson also complains that the Judge did not follow the communication guidelines in the report of the communications assistant which had been obtained for her before the September 2022 hearing. To illustrate this, she pointed to a number of exchanges in the course of the hearing in which she was self-represented on 28 February 2023. For instance, in the cross-examination of Mr Cotton, the Oranga Tamariki social worker, the following exchange occurred:
CROSS-EXAMINATION: MS HENDERSON
Q. Mr Cotton, did you write your affidavit?
A. Yes, I did.
Q. Whatdrew you to the conclusion that the schema therapy could not be addressed but the parent-child therapy as recommended by both Ms Bosman and Mr Buhr was what was required?
A. The –
THE COURT ADDRESSES MS HENDERSON – REFERENCE POINT (10:33:57)
CROSS-EXAMINATION CONTINUES: MS HENDERSON
Q. Point 17 on page 4, your Honour.
A.The reports by Ms Bosman and Mr Buhr which indicated that the schema therapy had been unproductive and was not furthering the goal of returning Ryan to your care and they’re both, their, their recommendations that parent-child therapy would be the best way forward.
Q.Given that the schemas were the only reason that Oranga Tamariki had custody of my child, why was therapy not productive? Why was schema therapy determined by two psychologists not to be productive in returning Ryan to my care?
A.On reference to their reports they were unable to establish how your schemas were affecting your parenting at the present time and that they found that there was still a lack of insight around your schemas from your own point of view.
Q. So both psychologists said they could not establish how the schemas were affecting my parenting, which was the only reason that Oranga Tamariki had custody of my child as agreed and in the original –
THE COURT ADDRESSES MS HENDERSON – ONE TOPIC (10:35:55)
CROSS-EXAMINATION CONTINUES: MS HENDERSON
Q. So you would consider that the schemas are no longer an issue, is that correct?
…
[122] After a further page of evidence, Ms McKenna objects to questioning by Ms Henderson as follows:
Q. And exactly what was I doing that meant those schemas affected my parenting because the two psychologists that worked with me could not identify that?
A. The care and protection concerns around your punitive parenting of Ryan.
Q. So we’re talking about the unproven, unsubstantiated care and protection concerns, Mr Cotton?
OBJECTION: MS MCKENNA (10:39:05) LEGAL DISCUSSION (10:39:22)
CROSS-EXAMINATION CONTINUES: MS HENDERSON
Q.So Mr Cotton, you have made two contradictory statements. One is that the two psychologists have said they cannot establish that these schemas affect my parenting, the other is that these schemas are still an issue. If it is stated that they can, do not, they cannot establish they affect my parenting, how can they be an issue?
OBJECTION: MS MCKENNA (10:40:07) LEGAL DISCUSSION
CROSS-EXAMINATION CONTINUES: MS HENDERSON
Q. Two psychologists have stated that they cannot establish how the alleged schemas affect my parenting. So on what basis –
THE COURT ADDRESSES MS HENDERSON – METHOD OF QUESTIONING
(10:42:12)
LEGAL DISCUSSION
CROSS-EXAMINATION CONTINUES: MS HENDERSON
Q. Do you agree this is what you’ve previously testified to?
A.Yes. The, in my reading of the reports the schema therapists have been unable to get past your assertion that the professionals involved are to blame and not yourself. There’s no issue with your own self.
Q. That is not what the –
MS HENDERSON ADDRESSES THE COURT – REFERRING TO MYSELF
(10:42:59)
CROSS-EXAMINATION CONTINUES: MS HENDERSON
Q. That is not what the therapists reported to me. They reported that they could not tell me what I was doing that meant I had those (inaudible 10 10:43:09) –
THE COURT ADDRESSES MS HENDERSON – REFER TO REPORTS (10:43:11)
LEGAL DISCUSSION
CROSS-EXAMINATION CONTINUES: MS HENDERSON
Q. In Mr Buhr’s report –
THE COURT ADDRESSES MS HENDERSON – QUERIES PAGE (10:43:32)
CROSS-EXAMINATION CONTINUES: MS HENDERSON
Q.– page 8, your Honour, it states: “Ms Henderson’s perspective was that I was tasked with” –
MS HENDERSON ADDRESSES THE COURT – HOW MUCH TO READ OUT (10:43:41)
CROSS-EXAMINATION CONTINUES: MS HENDERSON
Q.“Ms Henderson’s perspective was that I was tasked with addressing the schemas identified in the Nev Trainor report and to therefore provide a report to Court as to whether or not the schemas were still present, impacting on the Court’s verdict in relation to the parenting of her son Ryan. My belief was that I was requested to (inaudible 10:44:02) Ms Henderson with psychological support.” So Mr Cotton, having read that, the brief given, do you agree that the brief given to Mr Buhr did not meet the requirements of the section 128 plan?
A. (no audible answer 10:44:22)
Q. To address my schemas?
A. No, the brief was to work with you on your schemas.
Q. That is not what Mr Buhr has stated in his report.
A.Mr Buhr was provided with Mr Trainor’s psychological assessment and that work was passed on by Ms Bosman who was previously working with you on your schemas.
Q.Ms Bosman did not work with me on my schemas and she made it very clear the same situation.
THE COURT ADDRESSES MS HENDERSON – DO NOT GIVE EVIDENCE (10:45:02)
CROSS-EXAMINATION CONTINUES: MS HENDERSON
Q.So once again I asked a question that if the psychologist is saying that he was not, that was not the referral he received, to work on the schemas and to provide a report to the Court as to whether or not the schemas were still present, then how can that meet the requirements of the s 128 plan?
A. Mr Buhr’s work with you was to address those issues.
Q. Mr Cotton, it states in his report that that is not what he was employed
[123] While excessive questioning may give rise to a perception of bias it must go beyond the usual and event vigorous and substantial questioning by the Judge without more will not normally give rise to apparent bias.108
108 Rongotai Investments Ltd v Land Valuation Tribunal [2022] NZHC 1669 at [41].
[124] The passages pointed to by Ms Henderson, do not indicate that the Judge was excessively interfering. He was assisting an unrepresented litigant in person to cross-examine the witness. The Judge for instance asked Ms Henderson to point to the passages of evidence so the witness could comment on them. This was assisting her to put questions to the witness. Ms Henderson herself sought assistance from the Judge on, for instance, how much evidence to read out to the witness. A perusal of the notes of evidence indicates that the interruptions by the Judge, and counsel, are not out of the ordinary given the circumstances.
[125] Ms Henderson also says that when she was giving evidence, questions were asked of her which she did not understand. She pointed, for instance, to her cross-examination by Ms McKenna as follows:
Q. So who, who asked Ryan to ask me that question in our meeting yesterday?
A. No one asked him to ask you those questions.
Q. It’s just a coincidence that it’s exactly the same words that you’ve had used in the past?
A. Yes, Ryan wrote those questions himself.
Q. Do you understand the difficulty of placing a child in a situation where they are acting out on questions that you had put to them?
A. I’m sorry, I don’t understand the question.
Q.Yeah, I’ll rephrase that, it was a wonky question, sorry. When a child is in a conflicted situation and we all, we’re aware that Ryan understands the conflict that the adults are in at the moment. There’s yourself, there’s Mr L, Ms T and Oranga Tamariki. He knows how you feel about those people. Do you think it’s important that we protect our children from becoming involved with those conflicts?
A.Yes, I do in the same way I believe that a child should be protected from being put in the situation where the conflict exists in the first place by creating the relationships with the people who do not want him in his mother’s care.
Q. So you’re saying there was no conflict until Oranga Tamariki got involved? Is that what you’re saying?
A. No, no conflict with who?
Q. Well, you just said that the conflict all came about when people got involved.
A. No, that was your question was when a child is in a conflicted situation with you, Mr L, Ms T, Mrs C and Oranga Tamariki involved, so that was your wording not mine.
Q. I didn’t say Mrs C, sorry.
A. I’m sorry, I thought I heard Mrs C.
Q. I said Ms T, Mr L and Oranga Tamariki.
A. Okay.
[126] The passage from the transcript indicates that Ms Henderson was capable of requesting a question be repeated when she did not understand it. I do not consider that the transcript indicates that the hearing was unfair. Ms Henderson was able to seek clarification when she needed to if she did not understand a question and the Court allowed her breaks when she requested them.109
[127] In relation to the September 2022 hearing, Ms Henderson also said she had been disadvantaged. She pointed to questions she considered were too long and the witness interrupting the question making it difficult for Ms Henderson to follow things. However, Ms Henderson was represented at the hearing and it is apparent from the transcript that her counsel, Ms Faimalie, was actively involved in the hearing for Ms Henderson.
[128] The communications assistant’s report notes that Ms Henderson had reported that the difficulties she experienced occur “in very specific circumstances.” Ms Henderson had told the writer that she found it difficult to answer questions in relation to her son “in situations where she is under pressure to recall specific details that she would not usually remember, and in situations where she feels verbally attacked.” Ms Henderson reported when she felt stressed, she may become:110
…unresponsive and not attempt to express herself or answer questions. If she is upset, she may speak loudly and have difficulty controlling the volume of her voice.
[129] Other than the specific situations above, the report noted Ms Henderson “experiences little or no difficulty communicating” and that she has a degree in
109 Notes of evidence of hearing, 28 February 2023, at 55 line 10.
110 Communications Assistance Report, above n 22, at [4.4].
accounting and has worked as an accountant and in childcare. The report noted that Ms Henderson’s counsel described her as “highly intelligent”. The report made some general recommendations, such as regular breaks and people speaking slower and not interrupting. The communications assistant’s recommendations are not designed to be applied when Ms Henderson is the cross-examiner. In addition, the passages of evidence to which Ms Henderson refers demonstrate she was able to indicate when she was confused by a question. They show no unfairness by the questioner.
[130] A perusal of the transcript of the February 2023 hearing indicates that Ms Henderson was able to answer the question she was asked, and if she needed a break, she asked for one. The transcript does not indicate that the Judge was overbearing, or the hearing was conducted unfairly.
[131] Ms Henderson also says she was prevented by the Judge at the February 2023 hearing from questioning Mr Trainor about his qualifications to recommend schema therapy. However, Ms Famalie had cross examined Mr Trainor on this aspect of his evidence at the hearing in September 2022. The Judge was entitled to take that into account and made no error in preventing further questioning on that aspect by Ms Henderson at the later hearing.
[132] Predetermination involves a “closed mind” on the part of the decision-maker, who is not willing to change their mind or is not open to persuasion.111 It is apparent that the Judge engaged with the evidence and did not “simply [go] through the motions of making a decision.”112
[133] A claim by Ms Henderson that she did not have her discovery application heard in the Family Court adds nothing to the claims of predetermination. That is a procedural matter which could have been pursued in that Court. In relation to Ms Henderson’s complaint that an amicus curiae was not appointed, that was a matter for the Judge. There is no reference to such an issue being raised, but a Judge would be unlikely to require the appointment of a counsel to assist the Court (an amicus curiae) in a case such as the present.
111 Rongotai Investments Ltd v Land Valuation Tribunal, above n 108.
112 Financial Services Complaints Ltd v Chief Ombudsman [2021] NZHC 307 at [73]–[74].
[134] There is nothing in the material before this Court to indicate that the Judge was either predetermined or biased.
Ineffective assistance of counsel/consent issues
[135] Ms Henderson said she felt under pressure to consent to a s 102 order being made in February 2022 and that she had never agreed that there were care and protection issues other than because of Ryan’s behaviour. She blames her previous counsel for misleading her by telling her that Ryan would be returned to her care in August 2022 if she signed the agreement for a s 102 order in February 2022.
[136] At the appeal hearing, Ms Henderson expressed uncertainty as to whether she had in fact signed the consent to the making of the s 102 custody order in favour of Oranga Tamariki. In the course of the hearing the Registrar located a memorandum of consent on the Family Court file dated 15 February 2022 signed by both Ms Henderson personally as mother of Ryan and by Ms Henderson’s then counsel, Ms Faimalie.
[137] This memorandum asked the Court to make the s 102 custody order on the grounds that Ryan was a young person in need of care and protection on the grounds set out in ss 14(1)(a), 14(1)(b) and 14AA of the Oranga Tamariki Act. In addition, the consent memorandum sought the making of a s 110AA interim guardianship order in favour of the Chief Executive. The consent memorandum went on to note that a s 128 plan was attached to the consent memorandum and there was to be a case management review at three-monthly intervals. The purpose of the plan and review was to consider whether the implementation of the s 128 plan and that the therapeutic plan had been progressed. The consent memorandum also noted that a s 178 psychologist report would be sought for Ryan which would take into account the psychological report of Mr Trainor dated 1 February 2022 to assess the genesis of Ryan’s “concerning behaviour” and assess his emotional and psychological needs as well as his attachment to Mr L and Ms T and recommendations as to those future relationships and recommendation as to therapeutic interventions or supports to address Ryan’s behaviour. The consent memorandum went on to say:
9.An Order pursuant to section 74 of Oranga Tamariki Act 1989 will be sought to enable schema therapy for Ms Henderson once a therapist is identified.
10.To ensure the recommendations in the report of Mr Trainor dated 01 February 2022 are implemented Counsel seek a direction the affidavit of Mr Trainor dated 01 February 2022 is released to the schema therapist working alongside Ms Henderson and the section 178 report writer.
[138] It is apparent that Ms Henderson did personally consent to the interim custody and additional guardianship orders in favour of Oranga Tamariki.
[139] The memorandum also records Ms Henderson’s consent was based on the fact that Ryan was in need of care and protection and that she was unable to provide that care.
[140] This consent memorandum was filed and the relevant orders made some 12 months after Ms Henderson had, in February 2021, signed a s 140 agreement in which she, with the agreement of the Chief Executive of Oranga Tamariki, placed Ryan in Oranga Tamariki’s care. Ms Henderson says she was also pressured into this and was merely seeking respite care for Ryan, not full-time care. This ignores the fact that she could have withdrawn her agreement at any stage until the making of the s 102 order in February 2022. She did not.
[141] Ms Henderson’s lawyer has not been given any opportunity to respond to the allegations that Ms Henderson now makes. In addition, I can see no proper basis for the allegations113 against her lawyer. They are inconsistent with the material before the Court that Ms Henderson personally consented to the custodial arrangements in favour of Oranga Tamariki at various times.
[142]The grounds of appeal under this heading fail.
113 Ms Henderson sought leave to adduce various items of correspondence with her lawyer. That evidence was not admitted. It was piecemeal, out of context and had not been put to Ms Henderson’s lawyer for comment.
Adequacy of evidence/testing the evidence
[143] I have earlier referred to the evidence before the Judge and the fact that it was tested by cross-examination, both by Ms Henderson’s lawyer at the September 2022 hearing and by Ms Henderson personally cross-examining Mr Fry and Mr Cotton at the February 2023 hearing. Ms Henderson gave her evidence and was cross examined. The February 2023 hearing needed to be focused on the issues in relation to care and protection. Issues such as whether or not Ms Henderson had consented to the s 140 agreement in 2021 were peripheral matters and not directly relevant to the then current care and protection issues which were being addressed by the Court in February 2023. There was a limited amount of time for hearing. The Judge was entitled to manage the hearing to ensure the relevant issues were focused on.
[144] It would not have been in the interests of Ryan if the hearing had been put off to a future date to accommodate the calling of further evidence. The Judge made no error in focusing on updating the position by obtaining an updated psychological report on progress from Mr Fry. Mr Fry’s evidence and the updating evidence from Mr Cotton were sufficient to put the relevant updated issues before the Court as the Judge had already heard evidence in the September 2022 hearing. He was not required to commence the hearing from scratch. Ms Henderson had earlier agreed to a s102 interim custody order in favour of Oranga Tamariki. Ms Henderson had conceded there were grounds for that order and done so with legal advice. The Judge was entitled to take that into account when directing how the balance of the hearing would proceed in the time available. The Judge was also entitled to take into account the background, which was largely recorded in Court documents and reports.
[145]The grounds under this heading fail.
Process issues
[146] In October 2022, Oranga Tamariki made an application for a s 101 custody order in favour of the Chief Executive and that the Chief Executive be appointed an additional guardian of Ryan. In January 2023 it made a further application described as a “pro forma” application to ensure that there was no difficulty in completing the hearing in relation to the earlier application. Judge Moss reviewed the position and
concluded that the matter was part-heard in September 2022 and that hearing should be completed. That was a decision available to the Court and it made no error in adopting that course. The pro forma application was therefore rendered otiose. In view of the circumstances, the filing of the application was not an abuse of process. There could have been no prejudice caused to Ms Henderson by the delay in the recommencement of the hearing, as she had agreed to the interim orders under s 102 at the September 2022 hearing and to the resulting adjournment of the matter part heard.
[147] Ms Henderson also makes reference in her appeal grounds to s 204 of the Oranga Tamariki Act, which relates to rehearing. This appears to have no application here as no rehearing has been directed.
[148]The points raised under this heading of appeal fail.
Oranga Tamariki’s position
[149] The points raised under this head are matters of detail in relation to the interaction between Oranga Tamariki and Ms Henderson. The evidence suggests there has been a substantial amount of support for Ms Henderson and that support continues in an attempt to realise the objectives in the s 128 plan in order that Ms Henderson is in a position to take back the care of Ryan.
[150]The points under this heading of appeal fail.
Conclusion
[151] I have concluded that all grounds of appeal fail. Therefore, the appeal is dismissed.
[152] Any application for costs should be made by way of memorandum filed within five days of the date of this judgment. Any response is to be filed within a further three days.
Grice J
Solicitors:
Kate Sheppard Chambers, Wellington. Crown Law Office, Wellington.
McKenna Law Limited, Palmerston North.
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