M v Chief Executive of Oranga Tamariki

[2022] NZHC 1286

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/about/restriction-on-publishing-judgments/

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV2022-409-122

[2022] NZHC 1286

BETWEEN

M

Appellant

AND

CHIEF EXECUTIVE OF ORANGA TAMARIKI

First Respondent

F

Second Respondent

Hearing:

30 May 2022

Appearances:

A M S Williams for Appellant J L Rydes for First Respondent

L M Drummond for Second Respondent
F M T Boyd on instructions of A Lake as Lawyer for Child

Judgment:

2 June 2022

JUDGMENT OF MANDER J

This judgment was delivered by me on 2 June 2022 at 3 pm pursuant to Rule 11.5 of the High Court Rules 2016

Registrar/Deputy Registrar Date:     .

M v CHIEF EXECUTIVE OF ORANGA TAMARIKI [2022] NZHC 1286 [2 June 2022]

[1]                  G is the child of the appellant, M (the mother) and the second respondent, F (the father). She was born on 27 May 2010 and is 12 years of age. G, together with her older and younger siblings, are subject to guardianship orders made pursuant to the Oranga Tamariki Act 1989.

[2]                  Earlier this year, the Family Court was asked to determine which school G should attend for year seven. G had previously attended [School 1] but a decision was now required regarding her “middle” or “intermediate” school which may have implications for G’s subsequent secondary schooling. G’s mother had enrolled her at [School 2] and that is where she currently attends. Her father, however, at least initially when the matter was argued in the Family Court, wanted G to attend [School 3] where her 14-year-old sibling, who is in year 10, attends.

[3]                  The Chief Executive of Oranga Tamariki (the Chief Executive) took a neutral position in the Family Court. It submitted in that Court that G’s best interests would be promoted by her attending [School 3] but, as Ms Ryde pointed out, also acknowledged that G would do well whichever school she attended and expressed no preference. In March 2022, the Family Court made an order that from the commencement of term two, G should attend [School 3] until further order of the Court. That decision was appealed by M. The following month, the Family Court stayed its judgment pending determination of the appeal.

[4]                  In May, the parties filed a joint memorandum in which they informed this Court that F has reconsidered his position. He is now of the view that it would be in G’s best interests for her to remain at [School 2]. The Court was advised that for her intermediate years Oranga Tamariki continued to take a neutral position but that both it and F, as the first and second respondents, consented to the appeal being allowed. While acknowledging the benefit to G from her parents being able to agree on her schooling and supporting her in her choice of school, before being prepared to give effect to this consensus, Nation J requested some further information, including confirmation that Oranga Tamariki supported the proposed agreed outcome.1

1      M v Chief Executive of Oranga Tamariki HC Christchurch CIV-2022-409-122, 10 May 2022.

[5]                  For the purpose of the appeal, lawyer for child was appointed with a direction she report to the Court as to the precise order she considered ought to be made if the appeal was to be allowed and confirmation that the agreed outcome was consistent with G’s preference. Justice Nation also enquired whether any other issues were required to be addressed before substituting the orders made in the Family Court.

[6]                  The Court has since received a report from lawyer for child that confirms G is enjoying being at School 2, that she has made some good friends there and wishes to remain at that school for years seven and eight. No other issues were identified that required the Court’s consideration. In respect of G’s secondary schooling, it is apparent from the discussion lawyer for child had with G that no decision should be made at this stage. Lawyer for child reported:

6We talked about schooling after [School 2]. [G] was aware of her options being [School 3] or [another college]. [G] was clear in her belief that [School 3] would be a better school for her from year nine. She was, however, worried that most of her friends from [School 2] would transition to [the other college].

7[G] identified that she had friends at [School 3] from her previous school and her sporting activities. She preferred the smaller size of [School 3] and was worried that [the other college] would be too large for her.

8Whilst she is unable to decide which high school at this stage, and it is unfair to expect her to, [G] was certain that [School 3] would be her preferred choice. It is likely that this will need to be reassessed closer to the time.

[7]                  It is apparent that, while G has expressed a preference for [School 3], it would be premature to commit her to making any election about her secondary school at this time. There is no reason to suppose a similar consensus cannot be reached regarding G’s secondary school as it has, albeit belatedly, for her years seven and eight education. All parties and lawyer for child agree the question of G’s secondary education should be considered at a later time by the Family Court if her guardians cannot otherwise agree.

[8]                  The decision regarding G’s schooling for years seven and eight was the subject of a fully reasoned judgment by the Family Court. However, all parties are in agreement the appeal should be allowed by consent. G’s guardians, including Oranga

Tamariki, are of the view that, in light of her being well settled at [School 2] and the preference she has expressed to lawyer for child, she should be permitted to remain there and that it would be in her best interests to attend that school.

[9]                  All parties being agreed, the appeal should be allowed by consent, I make an order setting aside the Family Court’s direction that at the commencement of term two G shall attend [School 3]. In its place there will be an order that G is to attend [School 2] for the remainder of her intermediate years, being years seven and eight.

[10]No issue as to costs arises.

Solicitors:

Oranga Tamariki Legal Services, Wellington