Lime v Chief Executive of Oranga Tamariki - Ministry for Children
[2025] NZHC 649
•26 March 2025
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 https://www.justice.govt.nz/family/family-court/after-the-family- court/restrictions-on-publishing-information/
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE
CIV-2024-454-79
[2025] NZHC 649
UNDER the Oranga Tamariki Act 1989 BETWEEN
SIERRA LIME
Appellant
AND
CHIEF EXECUTIVE OF ORANGA TAMARIKI – MINISTRY FOR CHILDREN
First Respondent
DION RIVER
Second Respondent
Hearing: 6 March 2025 Appearances:
M M van den Bergh for Appellant
A R Lyne and M B Rainbow for First Respondent K J Neill for Child
Judgment:
26 March 2025
JUDGMENT OF McHERRON J
LIME v CHIEF EXECUTIVE OF ORANGA TAMARIKI – MINISTRY FOR CHILDREN [2025] NZHC 649
[26 March 2025]
Introduction
[1] This judgment concerns access (or contact)1 arrangements between Lachlan, who is a teenage boy, and his mother Sierra Lime.2
[2] As neither of his parents can have Lachlan in their care, he is in the custody of Oranga Tamariki and lives with whanaunga in a safe, stable and happy home.3 By all accounts Lachlan is doing well.
[3] Lachlan’s access with his mother is not the subject of any orders. Instead it is provided for in a plan prepared in accordance with ss 129 and 130 of the Oranga Tamariki Act 1989 (Act) (the Plan), which relevantly provides:4
Ms Lime will have fortnightly contact with Lachlan supported by Across Social Services on a Thursday afternoon. Fortnight one - community from
3.30 pm to 5 pm. Fortnight two - onsite 3.30 pm to 4.45 pm. This contact will be monitored by the Across Social Services Supervisor and Oranga Tamariki social worker to ensure that this contact is meeting Lachlan’s needs and may change as required. If any issues arise, they will be addressed with Ms Lime directly. Contact between Lachlan and Ms Lime may be suspended if issues arise that cannot be immediately resolved as outlined within this plan and the contact agreement.
[4] Ms Lime has raised concerns about the implementation of these access arrangements. On several occasions, she has received less time with Lachlan than is stipulated in the Plan. Ms Lime would prefer access to be governed by an access order, under s 121 of the Act. This is the second application she has made for an access order.5
[5] In dismissing Ms Lime’s first application for an access order, in June 2021, Judge Moss stated that “to impose an access order imposes a rigidity in the system of
1 For the purposes of this judgment I treat the terms “contact” and “access” as interchangeable. In general “contact” is the term used in the Care of Children Act 2004 (and defined in that Act as including all forms of direct and indirect interaction with a child”). “Access” is the equivalent term retained in the Oranga Tamariki Act 1989.
2 The parties’ names have been anonymised.
3 Pursuant to orders made under ss 101 and 110 of the Oranga Tamariki Act.
4 See Oranga Tamariki Act, ss 44, 121 and 128.
5 See Chief Executive of Oranga Tamariki v Lime [2021] NZFC 5612 [June 2021 decision].
the care for [Lachlan] which has more disadvantages than advantages”.6 The Judge also said that:7
The Court relies on the inclusion of that within the plan as a commitment to that occurring. It is not necessary to make the individual matter of access enforceable, as a separate matter, for the Court to accept there is a verifiable and justiciable commitment to ensuring the development of contact with [Lachlan] with his mother.
[6] Ms Lime’s second access application was determined in September 2024, following a July 2024 hearing. Judge Moss again declined to make an order under s 121, stating “there are more disadvantages with an [access] order than advantages”.8
[7] Ms Lime’s evidence is that, since the hearing in the Family Court on 25 July 2024, her access with Lachlan has not taken place in accordance with the Plan. Ms Lime appeals the Family Court’s September 2024 decision to the High Court.
Application to adduce new evidence
[8] As part of her appeal, Ms Lime sought to adduce new evidence, an affidavit primarily consisting of Ms Lime listing when the Plan failed to operate in accordance with its terms. This was opposed by Oranga Tamariki, although Oranga Tamariki was able to provide an affidavit in reply.9
[9] I have considered both affidavits. I consider the evidence is cogent and relevant updating evidence. I agree with Ms van den Bergh, counsel for Ms Lime, that the evidence relates to matters that have arisen after the date of the hearing of the decision under appeal and is relevant to the determination of the appeal.10
[10] I admit the new evidence filed by both the appellant and the respondent on the basis there are special reasons to hear the evidence.
6 June 2021 decision, at [37].
7 At [37].
8 See Chief Executive of Oranga Tamariki v Lime [2024] NZFC 12017 [Decision under appeal] at [28].
9 Unlike in Frye v Chief Executive of Oranga Tamariki [2022] NZHC 2976, where evidence was declined in a similar context.
10 High Court Rules, s 20.16(3).
What does the new evidence say?
[11] As the evidence is contested, I consider it useful to make some brief observations about the evidence in this case. It is now eight months since the hearing of Ms Lime’s second s 121 application in the Family Court. Matters have evolved, and there is evidence before me that was not before Judge Moss.
[12] At the hearing of this appeal there was broad agreement among counsel that the Plan is not being reliably or faithfully implemented, resulting in Ms Lime and Lachlan not getting their full allocation of fortnightly time with each other. It may only be a difference of 15 minutes; but when a mother and her child are only seeing each other once a fortnight, an extra 15 minutes has great significance. Any suggestion otherwise would cut against the interests of both Lachlan and Ms Lime.
Affidavit in reply
[13] I found the affidavit in reply to Ms Lime’s evidence, provided by an Oranga Tamariki social worker, was difficult to follow. I could not easily reconcile it with Ms Lime’s clear evidence that her access time with Lachlan is being regularly curtailed by 15 minutes. I prefer Ms Lime’s evidence on this question.
[14] At the hearing, senior counsel for Oranga Tamariki, Mr Lyne, conceded that Ms Lime and Lachlan had not received the full hour and a quarter on several occasions. Accordingly, I accept that, in accordance with Ms Lime’s new evidence, the Plan is not being reliably implemented.
[15] The specific examples where I find the access arrangements in the Plan have not been implemented:
(a)Five instances recorded in Ms Lime’s affidavit where onsite contact was limited to one hour only, despite the Plan providing for an hour and a quarter. On behalf of Ms Lime, Ms van den Burgh submitted from the bar that the increase in onsite access to one and a quarter hours has still not been implemented properly as at the date of the appeal hearing.
(b)Other delays in implementing arrangements in the Plan including in relation to alternating visits in the community, the increase in community access to one and a half hours, and organising a review of the arrangements.
(c)Ms Lime has had difficulty making arrangements for extending time for access during the school holidays to allow longer activities such as golf. This is something that needs to be planned early in the term to ensure adequate social worker resourcing is available. Yet, Ms Lime has had difficulty obtaining the necessary assistance from Oranga Tamariki.
Approach to appeal
[16] In this appeal I need to reach my own conclusion on the best route forward,11 based on the evidence heard by the Family Court (and the further evidence admitted on this appeal). The appeal proceeds by rehearing,12 but it is for Ms Lime, as the appellant, to persuade this Court to reach a different conclusion than the Family Court.13 I can take into account the advantages Judge Moss had,14 including her long- standing familiarity and ongoing conversations with Ms Lime and Lachlan,15 and the specialist expertise held by the Family Court.16 The well-being of Lachlan remains the central consideration on appeal.17
The law in this area
[17] In determining what arrangements are best, several provisions of the Act need to be considered and read together.
11 Oranga Tamariki Act, ss 341 and 346; High Court Rules, r 20.18. See also Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1.
12 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
13 M v Chief Executive of Oranga Tamariki [2019] NZHC 717 at [47]; Green v Green [2016] NZCA 648 at [31].
14 M, above n 13, at [48].
15 See Jacobs v Chief Executive of Oranga Tamariki [2024] NZHC 2958 at [112]–[114].
16 D v S [2003] NZLFR 83 at [19]; SLB v Ministry for Children, Oranga Tamariki [2020] NZHC 1129 at [29]; MC v Chief Executive of Oranga Tamariki [2020] NZHC 50 at [16].
17 Oranga Tamariki Act, s 5(1)(b); Henderson v Oranga Tamariki [2023] NZHC 3018 at [10] and [13].
[18] Applying ss 44, 46 and 121 of the Act, the Court may make an order for access if this would promote Lachlan’s well-being and best interests. Access orders are “binding on both the family and the Ministry”.18 They can be more, or less, restrictive than the access proposals contained in the Plan. The access order may be made on such terms and conditions as the Court thinks fit.19
[19] I understand, from counsel’s submissions and the approach taken in the Family Court, that access between a young person in care and a parent is often incorporated under the provisions of a s 128 plan. That is certainly the case in respect of the Plan formulated for Lachlan. However it is noteworthy that s 130, which provides for the content of plans prepared under s 128, says nothing about access:
130 Content of plans
(1)Every plan prepared pursuant to section 128 in respect of a child or young person shall—
(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:
18 Chief Executive of Oranga Tamariki v HABTW FC Christchurch FAM-2006-009-3112, 4 July 2011 at [42].
19 Oranga Tamariki Act, s 121.
(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).
[20]Rather, s 121 is the provision in the Act that specifically relates to access:
121 Court may make orders for access and exercise of other rights by parents and other persons
(1)Where an application is made to the court under section 44 in respect of any child or young person, the court may make an order granting access to that child or young person to the applicant.
(2)Where the court—
(a) makes an order under section 78 relating to the custody of a child or young person; or
(b) makes a custody order or an interim custody order under section 101 in relation to a child or young person; or
(c) makes an order under section 110 or 110AA appointing the chief executive or any other person the sole guardian of a child or young person,—
(ca) [Repealed]
it may, on making the order, or at any time after making the order, on application made by any parent of the child or young person or any other person, make an order—
(d) granting access to that child or young person to that parent or other person:
(e) conferring on that parent or other person such rights in relation to the child or young person as it thinks fit.
(3)Any order made under subsection (1) or subsection (2) may be made on such terms and conditions as the court thinks fit.
[21] I was not referred to any other cases establishing criteria for situations in which the Court would prefer to use a care plan under s 128 for access rather than an access order under s 121. Instead, I have found cases in which the Family Court has made a s 121 access order in the context of a s 101 custody order following the preparation of a s 128 plan.20 In Chief Executive of Oranga Tamariki v CA, Judge Maude made an access order despite counsel for Oranga Tamariki’s submission that an order was unnecessary, that the Court could give an indication as to its views, and access could be implemented and reviewed under the umbrella of the custody order in place.21
[22] Section 128 plans are reviewed on an annual basis.22 This enables access to be flexible and varied to meet the needs of the young person. A s 128 plan cannot be enforced or varied by the Court,23 but is reviewed by the Court.24 If the Court deems the plan inadequate, it can order a new plan be filed.25 However, the s 128 plan is linked to Lachlan’s guardianship and custody orders (ss 101 and 110) rather than Ms Lime’s access. It appears both concepts have been bundled into one document, and one plan.
Family Court decision under appeal
[23] The first question the Family Court had to answer was whether there should be an increase in the time Lachlan spends with Ms Lime. Judge Moss considered that there was “ongoing confusion” from Ms Lime as to Lachlan’s intentions, opinions and
20 Chief Executive of the Ministry for Vulnerable Children, Oranga Tamariki v Morgan [2017] NZFC 5994.
21 Chief Executive of Oranga Tamariki v CA [2022] NZFC 1817, cited in Mark Henaghan and others
Family Law in New Zealand: Vol 1 (21st ed, LexisNexis, Wellington, 2023) at [6.584].
22 See Chief Executive of Oranga Tamariki v Lime FC Palmerston North FAM-2020-054-191 (Minute of Judge N A Walsh).
23 HABTW, above n 18, at [42]
24 Oranga Tamariki Act, s 135.
25 See Chief Executive of Oranga Tamariki v JS [2020] NZFC 3632 at [18] and [21].
exchanges with her.26 The Judge considered Ms Lime did not understand “that the intervention to severely constrain her time with her son had arisen because of the danger she had placed him in”. The Judge canvassed the real risk that if Lachlan feels unheard, he will develop “maladaptive strategies for coping”.27 She concluded Lachlan’s views were his own, were balanced, and reflect his full participation in the current arrangements, and his expressions of enjoyment in other aspects of his life.28
[24] The second question was whether there was a need for an access order. The Judge was “sympathetic” with Ms Lime’s view that she has struggled to maintain or enhance access with Lachlan under the existing arrangements (the Plan).29 Judge Moss considered it was “an odd problem” that the agreed-upon increase in time took eight weeks to implement.30 However, the Judge concluded:31
… the structure of the plan and Court orders need to be limited as far as possible, to enable a child in the care of Oranga Tamariki to have care arrangements which meet their changing needs … There needs to be both clarity with access arrangements but the possibility of amending them, in terms of the need of the young person. I consider that as long as the plan is clear, and reliably implemented, there are more disadvantages with an order than advantages. … However, the plan is to include specific access arrangements, including responsibility for planning and arranging visits, so that Lachlan can rely on visits occurring in a way which meets his needs. This specificity will also allow the mother to maintain an active role in implementing arrangements which are made for school holidays.
(emphasis added).
Submissions for Ms Lime
[25] Ms van den Bergh submits than an access order under s 121 will have greater “effect” and “weight” than the Plan. It carries “symbolic value”. She submitted enforcement and the Court’s involvement in an order is “slightly more cumbersome” but not “overly so”, in comparison to a plan.
26 Decision under appeal, above n 8, at [10].
27 At [19].
28 At [23].
29 At [27] and [26].
30 At [24].
31 At [28].
[26] She emphasised that the access order will be capable of variation and that benign access variations approved by Ms Lime could be made by consent, making the process faster.
Submissions of lawyer for the child
[27] The lawyer for Lachlan, Ms Neill, submits that access with Lachlan is currently operating “fine”. The 15 minute reduction of onsite access is not something Lachlan has raised as a problem. Nor, in Ms Neill’s submission will having an access order necessarily solve the problem as the agency providing the supported access takes its instructions from Oranga Tamariki. Ms Neill expresses concern that any attempt to enforce an access order under s 122 of the Act would require counsel to meet with Lachlan again for his views. In a context where Lachlan has expressed his desire not to have any further Court proceedings this could potentially be detrimental. The Court needs to ensure, in accordance with the principles in s 5 of the Act in particular, that the well-being of a young person is at the centre of decision-making that affects that young person. So, the question is what is the benefit to Lachlan of making an access order? Ms Neill submits that the annual review of the Plan is adequate to resolve any issues with access and that making an order carries risk to Lachlan when the benefit of an order would only be symbolic.
[28] Ms Neill also submits that a further reason in favour of leaving arrangements as they are is that it is more cumbersome to amend an access order than a care plan. This submission is similar to the Judge’s comment to the same effect, as set out above.
For Oranga Tamariki
[29] Mr Lyne, senior counsel for Oranga Tamariki, submits that concerns about implementation of access arrangements in the Plan could be raised at the scheduled Plan review. He also submits it would have been preferable for Ms Lime to seek a re- hearing of Judge Moss’s decision to decline to make an access order under s 121, under s 204 of the Act. This would allow the matter to be considered by a specialist Court who could also consider the updating evidence and conduct any cross-examination if necessary. Mr Lyne considers an access order would be a “draconian” and “over the top” approach to ensuring compliance. Mr Lyne supports Judge Moss’s comment in
the decision under appeal that: “as long as the plan is clear, and reliably implemented there are more disadvantages with an order than advantages”.32
My assessment
[30] In the decision under appeal, the Judge identified two pre-conditions for her conclusion that an access order was disadvantageous relative to a care plan. They were that the care plan is clear and that it is reliably implemented. However, neither of these pre-conditions is established.
[31] First, I do not consider the Plan is as clear as it needs to be. I have a particular concern about the words “may change as required” in the Plan excerpt set out above (at [3]). This appears to have been interpreted by Oranga Tamariki as indicating that it can either vary the Plan unilaterally or not implement it reliably if it chooses not to do so. I consider this lack of certainty about access is detrimental to Lachlan’s interests as well as Ms Lime’s. Other changes may also be desirable to the Plan to make access arrangements clearer and more certain. But I will leave the parties to discuss those at the forthcoming Plan review.
[32] The second pre-condition in Judge Moss’s decision, that the Plan must be reliably implemented, has not been met either, as established by the new evidence I have allowed to be admitted, and as acknowledged by counsel.
[33] In any event, I do not consider that the Judge adequately set out the relative disadvantages of an access order compared to its advantages. It is not apparent to this Court, in the absence of a reasoned explanation, what those disadvantages might be.33
[34] Accordingly, as the advantages and disadvantages (whatever they may be) as balanced by Judge Moss only apply when the plan is reliably implemented, the basis for her assessment that the disadvantages of an access order outweigh the advantages falls away.
32 Decision under appeal, above n 8, at [28].
33 Aside from acknowledging that Ms Lime may contest proposed changes to the order, necessitating further proceedings.
[35] Making an access order under s 121 is what the Act provides for and anticipates. Making an order, in my view, aligns with the scheme and purpose of the Act. By contrast, the approach taken by Oranga Tamariki makes use of the plan process in a way for which I am not certain that it was designed and which is not reflected in the wording of s 130.
[36]The purposes of a plan are to identify:34
…any services and assistance that are necessary and available, and those who will supply those things; it informs the Court of the exercise of its powers; and it gives notice to any affected party, such as the parents here of the proposed services and assistance.
[37] Here, I see the Plan as complementary to a well-defined access arrangement established through a s 121 order. An access order can be made on whatever terms and conditions the Court thinks fit.35
[38] I propose to make an access order that is subject to the Plan as varied from time to time with the approval of the Family Court, and subject also to the contact agreement between Ms Lime, Oranga Tamariki and Across Social Services.
[39] However, to ensure certainty of timing I direct that the words “may change as required” may not be used in the Plan to excuse Oranga Tamariki’s failure to reliably implement the Plan or allow it to make unilateral changes.
[40] In the present case, the Court is responding to a practical problem that Ms Lime has identified prompting her to make an application, because she did not have any other options for establishing with certainty what the approved access arrangements in respect of Lachlan were. She has become frustrated at Oranga Tamariki’s failure to adequately implement the access arrangements in the Plan. At the hearing, I asked counsel for Oranga Tamariki and the lawyer for Lachlan to identify the tangible downsides of turning access into an order under s 121 as the Act envisages. Neither Ms Neill nor Mr Lyne were able to persuasively identify any such tangible downsides.
34 NLM v Chief Executive Ministry of Social Development [2013] NZHC 1064 at [32].
35 Oranga Tamariki Act, s 121(3).
Rather, I consider the upsides are to provide increased clarity, certainty and potentially enforceability of access arrangements, to the advantage of both Ms Lime and Lachlan.
[41] Accordingly, I consider it is appropriate to make the s 121 order as Ms Lime asks the Court to do. This order ought not result in any further litigation. It is intended to protect the agreed-upon arrangements so everyone is clear where they stand.
Result
[42]For the above reasons, I allow Ms Lime’s appeal.
[43] I make an access order under s 121 of the Oranga Tamariki Act 1989 that Ms Lime is entitled to access to Lachlan on the terms set out in the s 128 Plan dated 24 May 2024 and subject to the contact agreement between Ms Lime, Oranga Tamariki and Across Social Services dated 2 February 2024. This access order is to operate in tandem with the evolving s 128 Plan. I anticipate that the Family Court will amend this access order accordingly in line with any changes to be made at the next scheduled review of the Plan. At that review, I encourage those responsible to make the Plan clearer in respect of access timing, as I direct above at [31].
Costs
[44] I encourage the parties to resolve any questions concerning costs between themselves. If unable to do so, counsel may file memoranda (no more than three pages) by the following deadlines, following which I will determine costs on the papers:
(a)Appellant no later than 4 April 2025;
(b)First respondent no later than 11 April 2025.
Communication to Lachlan
[45] I direct the lawyer for Lachlan to briefly explain the effect of this decision to him in in a manner and in language appropriate for his age and level of understanding as required by s 11(2)(f) of the Act, and to report to the Court (by way of email) that she has done so.
McHerron J
Solicitors:
VDB Law, Lower Hutt for Appellant
Oranga Tamariki – Ministry for Children Legal Services, Whanganui for First Respondent Kelly Neill Law, Levin for Child
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