M v Chief Executive of Oranga Tamariki
[2019] NZHC 717
•5 April 2019
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
CIV 2018-409-743
[2019] NZHC 717
BETWEEN M
Appellant
AND
THE CHIEF EXECUTIVE OF ORANGA TAMARIKI
Respondent
Hearing: 19 March 2019 Counsel:
A J McKenzie for Appellant
R Bowe and R Williams for Respondent J E Graham for the child
Judgment:
5 April 2019
JUDGMENT OF ELLIS J
[1] Mr M appeals a Family Court decision restricting his access to his seven year old biological daughter (K) to a single three and a half hour visit, once a month. Until relatively recently, he had been seeing her weekly and for longer on the school holidays.
Background
[2] Mr M is 52 years old. His father is Cook Island Māori and his mother is Pākehā. He has, however, acknowledged that he is not particularly conversant with his Cook Island roots and has little contact with his father. Mr M has several historic convictions, including for assault with intent to commit sexual violation.
M v THE CHIEF EXECUTIVE OF ORANGA TAMARIKI [2019] NZHC 717 [5 April 2019]
[3] Prior to K’s birth Mr M formed a relationship with Ms S, who was a teenager.1 Ms S gave birth to K in June 2011.
[4] K was removed from the home of Mr M and Ms S when she was nine months old and, on 9 April 2013, the Family Court made a declaration that she was in need of care and protection. Domestic violence directed at Ms S by Mr M was the principal cause of these events.
[5] Custody and additional guardianship orders were made in favour of the Chief Executive of (what is now) Oranga Tamariki in July that year. K was placed in the care of Ms B.2
[6] In October 2013, Judge McMeeken in the Family Court made an access order granting Mr M supervised weekly access of three hours a week. In her comprehensive decision she precisely articulated the competing principles that continue to dominate this case today.3 She said:
[17] In relation to [K], while all of the objects and principles have some application, I find the most important principles to be these:4
(a)Section 5(b), the principle that wherever possible the relationship between the child and her parents should be maintained and strengthened.
(b)Section 13(b), the principle that the primary role in caring for and protecting a child lies with the child’s family and that accordingly the child’s family should be supported, assisted and protected as much as possible, and intervention into family life should be the minimum necessary to ensure a child’s safety and protection.
(c)Section 13(f) and in particular s 13(f)(iii), which states:
Where a child is removed from her family the principles that where the child cannot be returned to her family the child should live in an appropriate family-like setting in which she can develop a sense of belonging and in which a sense of continuity and her personal and cultural identity are maintained.
1 Ms S was young enough to require a litigation guardian at earlier stages of these proceedings.
2 At some point Ms S also gave birth to another child, J, the paternity of whom is a matter of dispute. J is also now in the care of foster parents.
3 The Chief Executive of the Ministry of Social Development v J M [2013] NZFC 9013.
4 The statutory references here are all to the Children, Young Persons and Their Families Act 1989 (which was renamed the Oranga Tamariki Act 1989 in 2017).
(d)Section 13(h) where a child cannot remain with or be returned to her family, the principle that the child should be given an opportunity to develop a significant psychological attachment to the person in whose care the child is placed.
[18] The overarching principle, however, is the one I stated firstly, which is that the paramount consideration of the welfare and interests of [K].
[7] The Judge then referred to the decision of this Court in A v Ministry of Social Development where Asher J spoke of the tension between the desirability of nurturing a biological parent’s relationship with a child, on the one hand, and, on the other the desirability of minimising disruption for a child who has been placed in a settled family environment.5 Judge McMeeken went on:
[20] His Honour commented that the biological tie does not give a natural parent a right to access but it is important. He said that when a child has a permanent placement with another family it is important that the child has contact with their biological parents so that the child can properly understand her background and identity. He also said that with a child in a permanent placement, access is not given for the purpose of allowing a biological parent a relationship in a way which will ultimately leave the child to being returned to that biological parent. Asher J said that is in the young child’s interests that she have a predominant connection with the permanent placement family where she now loves, and to allow developments which lead to a disruption of that new family setting could damage that sense of belonging.
[21] A’s case involved a child uplifted from his mother at birth who had never had any attachment to his mother, and as at the date of hearing did not have a relationship with her. That child was now with a new family being a husband, wife, four sisters and a brother. At the time of the hearing the mother who was applying for access had not had any contact for about a year and had declined some opportunities to have contact. Asher J confirmed the Family Court decision that that mother should have access four times a year. That fact situation contrasts markedly with this case where the father was with [K] after her birth and for the last year or so has had contact for three hours a week with the supervision paid by him. There is clearly a bond and an attachment between him and [K] and a further difference is that [K]’s now permanent placement is with a single woman.
[22] Asher J commented that the issue must be considered on a case by case basis and that there is no set formula as to the desired frequency of access for a biological parent to a young child permanently placed with another family. He said that four times a year should not be regarded as a rule.
[23] Although the facts differ between A’s case and this case, Asher J had to deal with a similar specific issue. He set that out in paragraph 19 of his decision in this way: he said the issue was ‘is the mother’s claim that it is in the child’s interests that she had frequent access to him as her biological mother stronger than the Chief Executive’s claim that the child’s
5 A v Ministry of Social Development [2009] NZFLR 625 (HC) at 625.
psychological attachment to his new family must be nurtured and would be seriously impaired if access was too frequent?’
[24] In this present case, I frame the issue I must determine in this way: the father claims that [K] has a right to an ongoing relationship with one of her biological parents to whom she is already attached, as opposed to the Ministry’s claim that [K]’s attachment to and placement with her caregiver, who is now to be her permanent caregiver, would be impaired of contact with her biological father was too frequent.
…
[8] The Judge recorded that there was no evidence filed in support of the Ministry’s position, which was that (as in A’s case) Mr M’s contact with K should be limited to four times a year. After noting the positive evidence about Mr M’s access visits, she said:
[29] In my view, there would have to be demonstrable reasons for [K] to have her time with her father severely reduced. The Ministry says that the justification for reducing the father’s contact is so that [K] does not get false hope that she could return to live with him, and so it does not compromise the relationship between [K] and Ms [B]. The Court is therefore being asked to presume that those two things will occur - that [K] may get false hopes she could return to live with her father, or that her relationship with Ms [B]could be compromised. There is no evidence to suggest that [K] having contact with her father will give her false hope that she could return to live with him. There is no evidence that the father is encouraging [K] to return to his care or is in any way suggesting to her that may occur. There is no evidence that he has ever done anything like that during an access visit, and Mr Loveday was asked about that.
[30]The social worker … gave evidence that Ms [B] had complained that
[K] was upset and/or unsettled after access. It was unhelpful that direct evidence could not have been given in respect of that. When comments made by the social worker about the extent of [K]’s upset were put to Mr Loveday, he expressed surprise about the reported distress. He said, “It greatly surprises me”, to hear that. His evidence was that he had not been alerted to any concerns about [K] being upset after access. I do not know the extent of her upset after access and I do not know why that occurs. I do not know whether that will compromise her relationship with Ms [B] and, given the paucity of evidence, they are not matters the Court can make a finding of.
…
[33] For the past year, however, [K] has spent three hours every week with her father. I conclude from the evidence of the access supervisor that [K] has an attachment to her father, that she knows him as her father and that she spends good quality time with him. It is clear she has a bond with him. As I have said, it is also clear from the evidence of the access supervisor that [K] has an attachment to Ms [B] which seems to be a healthy one.
[34] The father appears to appreciate his present situation which he has placed himself in. He has some very significant, albeit historical, criminal convictions. He has had, as he described it, “an ongoing and toxic relationship with [K]’s mother.” His actions over many years led to a declaration being made which means in large part he has lost the ability to make decisions about his daughter. ·
[35] In respect of his current position however, being that of a father who only seeks to have ongoing supervised access with his daughter, I find that little real criticism can be made of him. He has paid for the costs of supervision and he proposes to keep doing that. His contact for the past year or thereabouts has been closely and, in my view, expertly supervised. There is no evidence that he has done anything to confuse [K]about her loyalties. There is no evidence that he has done anything at all to place [K]at risk. The access supervisor has heard and seen nothing at all untoward by the father at access. He has seen [K] enjoy and benefit from the safe time she has had with her father.
[9]The Judge concluded:
[39] When I consider the evidence before me and the principles that I must apply, I conclude that at this time it is certainly in [K]’s best interests that she be given an opportunity to develop the significant psychological attachment to Ms [B] who has been assessed to be her long term caregiver. From the evidence I have, I think that is occurring, and again I refer to Mr Loveday’s comments about what occurred at access changeover. But I think from the evidence I have and applying the principles I must, that it is also important that [K]’s relationship with her father be maintained. I am of that view because there is no evidence that suggests [K]’s relationship with her father is impeding her relationship with Ms [B]. Given that the access being proposed is supervised access, I find there is no risk to [K]. Given also that the new family unit [K] is in is just her and Ms [B] – that is, there is no father figure, it may be of value for [K] that she maintain contact with her father.
[40] I can see no benefit to [K] at this time in reducing the time she spends with her father. Her new family unit is a small one so it should not be too difficult for Ms [B] to arrange for weekly contact without compromising [K]’s other activities. [K] is young, she is not yet two and a half, and as she grows her needs will change, but at this time applying the principles I have earlier referred to, to the evidence that I have heard, I consider that [K] can continue developing the psychological attachment she clearly already has with Ms [B] while also maintaining contact with the father she knows and enjoys. I do not find how her proposed permanent placement with Ms [B] should mean that her relationship with her father must be basically extinguished, and I fear that may well be the case if she is only able to see him for four times a year at her young age.
[41] For those reasons, I grant the father’s application. I make an access order in his favour which provides that he may have access with [K] for three hours per week, such access to be supervised by a supervisor approved by the Ministry and the costs of that supervision are to be met by the father.
[10] Contrary to expectation, K’s placement by with Ms B did not prove successful. She was removed form Ms B’s care and, in November 2014, was placed with her current caregivers (the Gs). Theirs is regarded by Oranga Tamariki as a “forever home”. The access arrangement involving Mr M continued until 2016 with no significant difficulties. It was not until K started school (in June 2016) that the Chief Executive’s position changed.
[11] On 8 August 2016, Judge McMeeken issued a minute recording Mr M’s concerns the Chief Executive might seek to reduce access but noting that a psychologist’s report was awaited and counsel were unavailable. She adjourned the matter off until October but changed the times of Mr M’s weekly access (but not the duration) to accommodate school hours.
[12] The next involvement by the Family Court appears to have been a review plan hearing on 7 November 2016. Judge Ellis issued a minute on that day in which he noted:
[1]… Starting school has, clearly, made a difference in [K]’s life.
[2] The primary issue in front of me is the form of contact that [K] has with her dad. Currently, that is supervised and on a regular basis. It has been indicated by the Ministry that they are now seeking a reduction of that contact. Any such reduction will be opposed by [K]’s father and so that needs to be determined promptly.
[3] The Ministry needs to put before the Court and before Mr [M] and his counsel the detail of their assessment and their proposals and the reasons therefore and I will direct therefore that that information be put before the Court by way of plan and report and supporting affidavit evidence not later than 15 November. Mr [M], clearly, has the right to consider and respond to that. No doubt, he will want to do so promptly. I will direct therefore that he is to file anything in response not more than 14 days thereafter. The matter should then come back to another Judge for a final directions conference by way of pre-hearing.
[4] Ideally, in my view that should come back before Her Honour Judge McMeeken. I accept the submission of Mr MacKenzie, as counsel for Mr [M], that Her Honour Judge McMeeken has presided over days of previous hearings, will have had her own opportunity to hear and assess the parties and has a detailed knowledge of the background, all of which will, no doubt, come back to her when she reads the file and any further papers filed.
[13] For reasons that are not entirely clear, on 16 November 2016, the Chief Executive applied urgently to reduce Mr M’s access to two and a half hours per fortnight during the school term and five hours per week during the school holidays. On 17 November 2016 variation orders were made ex parte, but only to the extent of shortening Mr M’s access from three to two and a half hours on a different day and at a different time from the original orders (the new times taking account of school hours).
[14] In making those orders Judge Harrison noted that the application had been made urgently “despite Judge Ellis clearly set[ting] out the way forward and despite there being no clear evidence as to what has changed since 7 November when those directions were made”. She said, “I am left questioning the path taken by the Ministry”. Judge Harrison also expressed concern about the quality of supervision that had been occurring and directed that the Ministry take responsibility for employing the supervisor. She allocated a further hearing date of 19 December 2016 before Judge McMeeken.
[15] It seems that there was some form of case management hearing before Judge McMeeken on that day. The Judge issued a minute in which she noted that the Ministry’s application of 16 November appeared to have been made ex parte, but that the Ministry had advised that was a mistake. She expressed concern that this mistake had caused the matter to be put on the eDuty platform and referred to a New Plymouth Judge (Judge Harrison) who did, in fact, deal with it on a without notice basis. Judge McMeeken observed that this was “unfortunate”. Then, she recorded:
[8] I have just had brief discussion with Ms Paget who is [K]’s social worker. During the coming summer holiday period, [K]’s caregivers will understandably be going away for a holiday for a week or two so there will be a period of time when [K] will not have contact with her father.
[9] Ms Paget acknowledged that the Ministry will attempt to provide make-up days but also it seems sensible to me and I think Ms Paget agreed that during the school holidays there should be an opportunity for [K] to spend longer than two and a half hours with her father so that they can have real outings and make plans. Ms Paget said that she will liaise with father's counsel to arrange for those longer periods and to explain when contact will not occur.
[16] On 17 February 2017 Judge McMeeken directed that a firm two day fixture be allocated for the hearing of the Chief Executive’s application to have Mr M’s access halved, to fortnightly. She also said:
[2] I note that when this matter was before me on 19 December there were discussions about the father’s ongoing contact with [K]. It was certainly my understanding that because the caregivers would be going away for a holiday and, therefore, a period of time when [K] would miss out on the contact with her father that there would be an opportunity for the father's contact, given it was the school holidays, to be extended. I recorded as much in paragraphs 8 and 9 of my minute of 19 December.
[3] The father is concerned because he says that he had one visit, as I understand it, which was half an hour longer. That certainly was not my understanding of the discussions that we had in Court so I can understand the father feeling somewhat dissatisfied with the Ministry’s response in respect of our discussion.
[17] On 30 June 2017 there was a fixture callover before Judge Moran, who noted that Mr M continued to have access on a weekly basis but, the day before the callover, the Ministry had filed a memorandum seeking that this be reduced to monthly. He said:
[2] … I have endeavoured to look at options for resolution but these are not readily apparent. It may be that further consideration can be given to the reduction from weekly access to reflect the fact that [K] is living permanently within a home with caregivers and that they find continuation of weekly access too difficult to maintain for a plethora of reasons, which is quite common in such situations. There may be a compromise to be had which would still reflect [K]’s welfare and best interests and that, of course, is what this is about.
[18] The Judge went on to note that it was K’s social worker of some eight months’ standing who “had adopted the current position but she has no evidence before the Court at all.” He also said:
[4] Mr Williams, for the Ministry, seeks to file an affidavit from Ms Retallick [K’s social worker] and obviously that is essential. Further, it seems that Ms Retallick is relying on much of what is reported to her by the caregivers, and while I readily accept that they do not wish to be involved in proceedings of this type, if the Court is being asked to rely on those observations then best evidence rule must be complied with and there must be an affidavit from at least one of the caregivers. Cross-examination can, of course, be restricted to matters pertaining to these aspects only. That will be a matter for the hearing Judge.
[19] The Judge then directed that “a two day fixture before Judge McMeeken is to be allocated if at all possible”.
[20] On 17 July Judge McMeeken issued a minute saying that the matter did not need to be heard by her and needed to be allocated a hearing. She also said:
I am very concerned that the Ministry have changed their position after the matter was directed to be set down for a hearing. The matter was ready to proceed on 17 February.
[21] The Judge noted that she had conflicting advice from the Ministry about who was (or had been) K’s social worker and expressed concern that this had caused further delays.
[22] On 26 October 2017 there was another fixture callover before Judge Moran. The Judge said:
[1] … The matter relates to Mr [M]’s access to [K] and, in particular, whether it should be monthly as the Ministry proposes or weekly or even fortnightly as Mr [M] would suggest. It seems that the matter is simply not close to resolution and attempts to bridge the gap have been unsuccessful.
[23] The Judge noted that all the evidence had been filed and allocated a firm two day fixture commencing on 7 May 2018.
[24] Then, on Boxing Day 2017, K and the Gs were involved in a car accident. K required emergency surgery for a perforated bowel. As well as her physical injuries, she suffered longer term psychological effects, including anxiety, night terrors, and acute sensitivity to loud noises. The accident affected her schoolwork and school attendance. She has been receiving help from a psychologist for these things.
[25] It seems clear that the aftermath of accident was also the cause of some friction between Mr M and Oranga Tamariki. Mr M visited K often in hospital and seemed to be reluctant to take advice about overtiring her. Oranga Tamariki formed the view that Mr M was placing his own desires above those of K, evidenced in particular by him insisting on access after her discharge even when told that, due to the accident, K frightened of travelling by car.
[26] The events leading up to the putative two day hearing in May 2018 were set out in detail by Judge McMeeken in a subsequent minute dated 19 July 2018. With some justification, the Judge described aspects of these events as “ridiculous”. Suffice
it to say that the parties were seriously let down by the Family Court’s administrative processes. The short version is that, when they appeared for the hearing on 7 May, ready to proceed, neither a judge nor a courtroom was available. The matter had to be adjourned off, again.
[27] In her July minute Judge McMeeken explained what happened next. She began by noting:
[14] What happened subsequently also causes me some concern. It has long been clear to [K]’s Father that Oranga Tamariki, for a variety of reasons, wished to limit his contact with [K]. [K]’s Father has vehemently opposed that limitation. For a long period of time, he paid for supervisors himself because Oranga Tamariki were of the view that supervision was necessary. The Court had made it clear that there was an access order and if that was to be varied it needed to be done by the Court, hence the application made in November 2016. It remains very clear that Oranga Tamariki wanted the father to have possibly only brief contact with his daughter monthly or even less often.
[15] There have been reports written by a psychologist. There are reports from lawyer for the child. As I have said, there are a number of files that take up two boxes in respect of this little girl and much of it relates to her relationship with her father. The whole purpose of the hearing scheduled for 7 and 8 May was to determine whether the father’s contact should be reduced.
[28]Then, she went on:
[16] On 9 May, Oranga Tamariki applied without notice to vary the access order that was the subject of the substantive hearing. A third social worker that is not one of the first two social workers involved since the November 2016 application, swore an affidavit confirming that she was the social worker assigned to [K]. The social worker noted that there was an order providing that the father have weekly access from 3.30 pm until 6.00 pm once a week, but the social worker said that there were concerns that needed addressed in the interim.
[17] The social worker referred to a road accident that [K] was in in December of last year and commented about the time she was in hospital. The social worker exhibited almost four pages of text messages from 11 January last year, and she submitted that access should be varied in the interim until the matter is dealt with and recommended that access is reduced to once a month for two hours. That is an 80 percent reduction in the access that [K] and her father had been having.
[18] That application was put on the e-Duty platform which means it was ultimately dealt with by a Judge in the North Island who had only the application before her. As I have said there are two boxes holding files for [K]. The e-Duty Judge had no idea of the background other than what was contained in the social worker’s affidavit.
[19] It is my view that it is most unfortunate that the Judge who was asked to determine Oranga Tamariki’s without notice application was not a Christchurch Judge who would have had access to the file which included psychologist reports, lawyer for the child reports and previous judicial findings. [K] has had a lawyer involved with her for most of her life. That lawyer’s views were not sought. The e-Duty Judge said that in her view, there was a case for contact to be restricted, particularly as the Family Court hearing is now to be delayed. The e-Duty Judge granted the application and directed that the father was to have access to [K] for two hours once a month.
[20] I think it is most unfortunate that such an important decision was made by a Judge who did not have access to have a huge file. It cannot be in the interests of justice and it cannot be in the best interests of a child for a Judge to be put in such a position. It also concerns me that the Ministry have now obtained exactly what they want. They have restricted the father’s contact by 80 percent of what it was, to two hours a month which is what they have been seeking to achieve.
[21] It is difficult to understand what happened between 7 May and 9 May to lead the Ministry to make a without notice application. It is difficult to understand why lawyer for the child was not involved in or alerted to that application, and it is difficult to accept that when the matter finally gets to hearing that there will not be someone on behalf of the Ministry giving evidence to say that this new regime is in [K]’s best interests and to give evidence of how well it is working.
[22] The father has spoken to me today. He advises that he did not see [K] in the school holidays, that he is completely and utterly disappointed in the legal system and it is fair to say that he is deeply upset that whilst he waits for a hearing to determine is contact with his daughter, that the justice system works in such a way as to enable an order to be made which has done precisely what the hearing was supposed to determine.
[29] The Judge went on to confirm that the on notice hearing would take place on 30 and 31 July and that 1 August is available if a further day was required. She noted that Megan Phillips, the psychologist for Oranga Tamariki, would be filing an updated report or affidavit in advance of that hearing.
The judicial review application
[30] As Judge McMeeken noted, the Chief Executive’s without notice application had been determined on 9 May 2018 by Judge Riddell, a North Island Judge. His decision is brief (five sentences).6
6 I mean no criticism of the particular Judge concerned. As Judge McMeeken highlighted, there are clearly a number of systemic issues raised by what occurred here.
[31] On 18 May 2018 Mr M filed an application for judicial review of that decision. An application for interim orders was made on 8 June 2018 but was declined by Mander J on 11 July 2018.7 In the course of that decision the Judge addressed most, if not all, of Mr M’s substantive points on review.8 But the principal reason for declining the application for interim relief was essentially jurisdictional; the horse had bolted. In other words, because of the decision that had been made without notice to him, Mr M no longer had a position to preserve. And the fact that the on notice application had (by the time of the hearing before Mander J) been allocated a fixture less than a month later was also at the forefront of the Judge’s reasoning.
The decision under appeal
[32] The Chief Executive’s on notice application was heard by Judge Brandts-Giesen on 30 and 31 July 2018.9 The Judge heard oral evidence from Mr M himself and from the psychologist, Ms Phillips. There was also evidence from the three social workers who had dealt with K between 2016 and 2018. But for reasons that are not clear, Mrs G, who had (in July 2017) sworn an affidavit in support of the Chief Executive’s application did not attend and could not be cross-examined.
[33] The Judge did not interview K.10 Her interests were represented at the hearing by counsel for the child, Ms Graham.
[34] By the time the Judge released his decision, on 1 October 2018, Mr M had been having monthly access only for six months. There was, necessarily, a new status quo.
[35] The Judge began his analysis by summarising the Chief Executive’s position, as follows:
[24] The Ministry emphasised the continued need for supervision but also the need to consider [K]’s best interests rather than the wishes or perceived needs of her parents to have a role in [K]’s life.
7 JM v The District (Family) Court at Christchurch [2018] NZHC 1716.
8 Although he expressly expressed no concluded view on them.
9 Chief Executive of Oranga Tamariki-Ministry For Children v M [2018] NZFC 7384.
10 The question of an interview was raised but was opposed by both Mr M and by Ms Graham, albeit for different reasons.
[25] Those interests, say the Ministry, are best served by [K] being in a stable and permanent home with loving, caring, competent, and coping foster parents.
[26]Access by [K]’s biological parents should “not be disruptive to the
[G] family unit which includes [K].
[36]Next the Judge recorded the submissions made by Mr McKenzie for Mr M’s:
[29] Mr McKenzie highlights the differences in various social workers’ compatibility with Mr [M], although all acknowledge Mr [M]’s commitment to his daughter.
[30] Mr McKenzie is highly critical of Ms Megan Phillips, the clinical psychologist, whose independence and interview practices he questioned.
[31] The theme that runs through Mr [M]’s case was that whatever his past may have been like, Mr [M] was now a law-abiding citizen, prepared to comply with reasonable supervision rules. Any difficult behaviour displayed by Mr [M] was in effect righteous anger in answer to unfair practices by the Ministry,
[32] Mr McKenzie adopts the position that [K] needs to overcome her post-traumatic stress (which Ms Phillips estimated would require months rather than years from which to recover). He suggests that the monthly access remain until the beginning of 2019, and that it then revert to fortnightly.
[37] Next, the Judge referred to the views expressed by counsel for the child, Ms Graham, namely that:
(a)The Ministry had attempted to negotiate a change of access when K had started school but Mr M had become difficult to deal with;
(b)“[K] deserves a normal family life in a forever home”;
(c)K’s needs had changed, particularly in light of the car accident;
(d)Mr M’s attitude presented a “dilemma” in that he considered that K’s “primary attachment” was with him but did things which made access more difficult for her;
(e)Mr M had no insight into his conduct, he was not supportive towards the Gs and had an unrealistic expectation to be part of their family unit;
(f)access should be reduced (inferentially because of an increase in the competing demands on K as she got older);
(g)K “seems to have responded well to the reduced access” and “was [content] with access being monthly.
[38] The Judge then noted that the variation application was made under s 125 of the Oranga Tamariki Act 1989 (the 1989 Act). He said that while there are no specific statutory criteria governing the exercise of the Court’s discretion, the power must be exercised in accordance with the principles in ss 5 and 13 and the paramountcy principle in s 6.
[39] After observing that Mr M’s apparent reluctance to accept that he would never be K’s caregiver or have unsupervised access was manifested in his conflict with Oranga Tamariki, he noted that there were a number of competing and potentially disruptive forces at work in K’s case:
(a)Because K was growing up, she was moving from total dependence on a small number of caregivers to the introduction of playmates, extended family and then to friendships with other children and their families.
(b)As K approaches adolescence it could be expected that she will be allowed some independence under the guidance of her carers, who should act in a consistent and supportive way. In turn, the Gs would need to be supported in that endeavour and to be treated in a consistent and respectful way.
(c)K is a child in need of care and protection. Rather than focussing on their own personal or professional needs, those involved with her needed to focus on her welfare in both the short and long-term.
(d)The Gs’ household had its own challenges which give it strength. But all
fostering relationships are fragile.
(e)Mr M and Ms S had important roles to fill, but their roles could not be like that of parents with day-to-day care of the child; their roles must. be “contained so that the caregivers’ responsibilities (and corresponding rights) are not shackled”.
(f)The time reasonably available to spend with K must be shared between the birth parents, the carers, and the emerging social demands of school, friends, and recreational pursuits.
(g)There are, nonetheless, cultural concerns arising (in particular) from the fact that K is part Cook Island Māori and has been placed in a Pākehā family. It is vitally important for K to become familiar with the cultural background of both her parents.
(h)Finally, the serious car accident after Christmas in 2017 involved lasting physical and psychological effects for the whole G family. K was seriously injured and the G family as a whole will take time to recover back to equilibrium.
[40] Judge Brandts-Giesen then highlighted the “unfortunate” fact that the Gs had been unable to give evidence or be cross-examined, noting any evidence he had heard about their concerns was necessarily hearsay. He noted that while the Court’s concern was with the best interests of K, it also needed to focus on the G family as a whole. The Judge considered that too much access by Mr M could be disruptive to the Gs’ overall life and activities.
[41] He discussed at some length the cultural effects of K’s placement, as a Cook Island Māori child, with a Pākehā family but concluded that with the Gs’ help, she would be able to learn about Cook Island and Māori culture as she grows older. He also noted that Mr M would, himself, need to first become interested in his personal and national ancestry, if he was to pass that culture onto his children. The Judge reiterated that K “knows who her father is and has a relationship with him”.
[42] Ultimately, the Judge was satisfied that a “weekly or fortnightly arrangement is not suitable because of the pressures in [K]’s life”.11 He concluded:
[73] The biological parents have a role, but that is time sensitive. Their role is to assist the child with her parental and cultural identity, but should not interfere adversely with the child’s need to be brought up in a stable environment, where she is loved and nurtured by the [G] family and enabled to take advantage of social, sporting, educational, and recreational opportunities that are presented to her.
[74] This is to allow not only for [K] and the [G] family’s post-accident issues to be dealt with, but also for [K] to take part in normal life as much as possible.
[75] There is a need for there to be a respectful relationship between the biological parents, the [G]s, and the Ministry. The biological parents’ role is a secondary one and access (in frequency and time) may be reviewed in future, Much will depend on [K]'s ability to cope with access. That requires cooperation all around. Both Mr [M] and Ms [S] need to be treated with respect, just as they need to respect what others, especially the [G]s, are doing for their daughter.
[76] I grant the Ministry’s application to reduce the frequency of access, to one afternoon per month, for a minimum of three and a half hours. This shall have the effect of a final order.
[77]Contact may be varied by agreed between the Ministry and Mr [M].
[78) After the pre-Christmas access, there should be four weeks of no access, with a January access towards the end of that month but before school resumes. Thereafter, the monthly access regime may resume.
[79] The access should give an opportunity for [K] to maintain a special relationship with her biological parents and a knowledge of the various cultures of her ancestors.
The appeal
[43] In his appeal, Mr M seeks “the modification of the access order to provide for (as a compromise) fortnightly access”. The appeal was advanced on the grounds that, in limiting access as he did, the Judge failed to give any or sufficient weight to:
(a)the “status quo” of weekly supervised access;
(b)the unchallenged evidence that the status quo was enjoyed by K;
11 Chief Executive of Oranga Tamariki-Ministry For Children v M, above n 9, at [62].
(c)the absence of evidence from Mr and Mrs G; and
(d)the concerns raised about the psychologist’s independence.
[44]Counsel for the child joined the Chief Executive in opposing the appeal.
Approach on appeal
[45] The appeal is brought under s 341 of the Oranga Tamariki Act 1989 (the Act). It is a general appeal, by way of rehearing.12 It is an appeal not from the exercise of discretion but from an evaluative assessment of what is in the best interests of the child, taking into account the applicable statutory principles in play.13
[46] Under r 20.19(1) and (3) of the High Court Rules, this Court may make any decision it considers should have been made by the Family Court, direct the Family Court to rehear the proceedings or to consider any matters this Court direct or make any other order it thinks just.
[47] As the Court of Appeal noted in Green v Green, however, when applying the Austin Nichols approach, it remains axiomatic that the onus is on an appellant to identify the respects in which the judgment under appeal is said to be in error, to convince the appellate court to reach a different view.14 Absent the identification of such an error, the appellate court will not intervene.
[48] An appellate court will also take into account any particular advantages enjoyed by the trial court.15
Discussion
[49] Before turning to consider the specific grounds of appeal, there are some preliminary observations I would make at the outset.
12 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
13 Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1.
14 Green v Green [2016] NZCA 486, [2017] 2 NZLR 321 at [30].
15 At [31].
[50] First, the procedural history I have set out above makes it clear that there have been very unfortunate delays in progressing the proceedings in the Family Court. Those delays seem to have largely been caused by what appear to be serious deficiencies in aspects of the administrative processes in the Family Court, and changes in position by the Chief Executive have not assisted. No blame for those deficiencies can be laid at the feet of the Judges.
[51] Relatedly, I acknowledge that the administrative delays and deficiencies may be seen by the Chief Executive as justifying her decision, on two occasions, to make urgent, ex parte applications with a view to altering radically Mr M’s existing access arrangements. The Family Court was, in both instances, skeptical about the need for urgency – in my view with some justification. That has had a twofold, and regrettable, effect.
[52] The first is that Mr M’s access was drastically limited (and the status quo changed) without giving him the opportunity to be heard. The second and inevitable consequence is that the relationship between the Ministry and Mr M – which is both inherently difficult, and difficult in fact – has been put under quite unnecessary additional strain. In circumstances where it is clearly important (and in the child’s best interests) that the Ministry does everything possible to engender support from the child’s biological parents for the proposed care arrangements, that is most unfortunate. Section 5(a) of the 1989 Act seems on point.
[53] That said, however, the evidence given by the social workers (which is at least in part corroborated by the content of text message exchanges with Mr M) also makes it clear that Mr M has not always assisted his own cause. There is, in my view, some basis in reality for the Ministry’s view that Mr M has, on occasion, placed his own wants and needs over K’s and has been unhelpfully inflexible in various positions he has taken. In particular, his understandable view that he has, thus far, been the most consistent adult presence in K’s life has, I think, made it difficult for him to appreciate that K’s future welfare depends on her becoming fully integrated into the G family. And, in turn, that may require him to take more of a back seat role than he would wish.
[54] The fundamental importance of K fully becoming a member of the G family is, of course, reflected in the reasoning of the decision under appeal. Although the decision does not refer to any authority for that proposition, it is, of course, reflected in the Act itself. In particular s 13(2)(h) makes it clear that, in circumstances where a child cannot remain with, or be returned to, his or her family or family group, the Court must, in determining the welfare and interests of that child, have regard to the principle that the child should be given an opportunity to develop a significant psychological attachment to the person in whose care the child or young person is placed. In a case such as the present, that principle must, as a matter of logic, predominate over those other s 13 principles which are predicated on the possibility of the child being returned to his or her family.16
[55] The principle articulated in s 13(2)(h) is supported by experts in this area. Ms Graham referred me, in particular, to a relatively recent New Zealand academic article in which the author discusses (inter alia) the importance of stability for children in care and how “placement disruption” has particularly harmful consequences for children.17 The author notes that children who are disrupted from their foster homes can face serious mental health issues and feelings of rejection, resulting in bad behaviour, which perpetuates a cycle of more disruption. The author says this is “why protecting long-term and permanent placements from any disruption is so critical”. In short, for children to flourish, to feel safe, secure and to acquire relational permanence, they need unconditional commitment by loving, permanent parents.18
[56] So, it is with all those background points in mind that I turn to consider Mr M’s appeal.
16 Those principles are predicated upon the proposition that the primary role in caring for and protecting a child lies with the child’s family. By definition, however, that proposition ceases to apply where (as here) there is no prospect of the child’s return to the care of her family.
17 Michael Tarren-Sweeney “The developmental case for adopting children from care” (2016) 21(4) Clinical Child Psychology and Psychiatry 497.
18 See also Gillian Schofield “The Significance of a secure base: A psychological model of long-term foster care” (2002) 7 Child & Family Social Work 259.
Status quo
[57] As Mr Bowe for the Chief Executive correctly stated, the status quo by the time of the hearing was not weekly supervised access but monthly access. The reason for that was, of course, the as yet unexplained without notice application made by the Chief Executive in May 2018. As will be evident from my earlier comments, I echo the concern expressed by Judge McMeeken about that; in my view it unfairly and unjustifiably prejudiced Mr M’s case by shifting the goalposts without giving him an opportunity to be heard.
[58] Be all that as it may, however, the consequences of that action cannot be ignored. K’s best interests and welfare will always trump the interests and rights of Mr M. And the present reality is that, for almost a year now, she has only been having monthly contact with Mr M. Thus the status quo at the time of the hearing before Judge Brandts-Giesen and at the date of his judgment has only become more entrenched.
[59] So even if I were inclined to the view that the status quo ante (ie the state of affairs up until May 2018) should have been given more weight in the Family Court it would be impossible to give it much weight now. This ground of appeal cannot succeed.
K enjoyed weekly access
[60] I accept that there was no evidence before the Court to suggest that K did not enjoy her weekly access with Mr M. The Judge did not, of course, suggest otherwise. The reality is, however, that K’s enjoyment is not necessarily synonymous with her welfare and best interests. The bottom line is that the Chief Executive believed (and the Court accepted) that weekly access was an impediment to K’s full integration into the G family. The most telling piece of evidence in that respect came from the social worker, Ms Retallick, who said (in her 2017 affidavit):
At the current level of weekly access, [K] has 52 access visits with Mr [M] per year; 6 visit[s] with her mother, Ms [S]. The intent is for [K] to have monthly sibling contact with her younger sister [J]. This equates to 70 access visits with biological whanau each calendar year.
It is my belief that 70 access visits each year is too much for [K] or any child and their caregiver to maintain.
Additional to this is 8 weekly visits19 to [K] by the Ministry social worker. This is another scheduled 7 visits per year and does not account for additional visits by the social worker.
Therefore this would be at least 77 visits [K] would need to attend or be present at, which in total would be approximately every 1.5 weeks, [K] would have a scheduled appointment [sic].20 This does not account for extra-curricular activities or learning supports or personal or her Foster family’s activities.
The impact of this is that [K] does not have the opportunity or time to establish and maintain relationships with her caregivers and their extended whanau who are the people who [K] rely on to meet her daily needs and provide the stability and security a child needs.
[K]’s school has identified that she is behind the National average in each subject for her age. It is intended that the Ministry support [K] to seek the assistance she needs to progress her academic progress. This would require
[K] to have sessions outside of school hours. Therefore, this is another weekly commitment that [K] would have.
[K] also needs the opportunity to engage in extracurricular activities to support her social development and for enjoyment and learning. At this stage [K] would have access once a week, additional learning support once a week and an extra-curricular activity once a week, and on every 3rd to 4th week and additional access with either Ms [S] or [J]. This level of commitment for a 6 year old leaves limited time for [K] to spend with her caregivers and their son or to have ‘play dates’ or spend with friends.
[61] It seems to me that, on any analysis, K’s commitments external to the G family are too many and too frequent. The Ministry’s position that the number of these commitments (almost 70 per cent of which consisted of Mr M’s weekly access) would cut across her integration into the G family and, potentially make her less secure in that placement is, in my view, right.
Absence of evidence from the Gs
[62] There is no dispute that the Gs did not give evidence. As noted earlier, Mrs G had sworn an affidavit over a year earlier but there is nothing to suggest that it was read by the Judge or taken into account. He expressly recorded that the Gs had not
19 By which is meant one visit every eight weeks.
20 Ms Retallick’s maths seems to be back to front. What she must, I think, mean is that K would have 1.5 scheduled appointments or visits each week.
attended and could not be cross-examined and that any reference to their views by other witnesses was hearsay.
[63] While I think it is regrettable that at least one of the Gs did not attend the hearing,21 I consider the Judge had sufficient evidence before him to form the views that he did. I have referred, in particular, to Ms Retallick’s affidavit above. She was cross-examined on it. And if one thing is clear, it is that a further adjournment of the hearing of an already much delayed matter should not have been countenanced. Given what I have said earlier about the “status quo” an adjournment would, most certainly, not have operated in Mr M’s favour.
[64] The absence of evidence from the Gs did not, in my view, constitute an error of process or give rise to a substantive error by the Judge.
Ms Phillips’ independence
[65] Mr M says that Ms Phillips (the psychologist) was not independent. He also questioned her interview practices. Those were both matters explored by Mr McKenzie in his cross-examination of Ms Phillips. The Judge also asked her questions about it.
[66] The difficulty with advancing this as a ground of appeal, however, is that apart from expressly recording Mr M’s concerns, the Judge did not refer to Ms Phillips’ evidence at all in his decision. As I have already noted there was other evidence which supported the position he took and the conclusions he reached. As well, he was no doubt assisted by the views expressed by counsel for the child, Ms Graham. As it happens, her views largely coincided with Ms Phillips’. But there is nothing to suggest that the Judge gave Ms Phillips’ views any particular independent weight. I discern no error here.
21 I note that no point was taken about that at the time by Mr M’s counsel.
Conclusion
[67] While, like Judge Brandts-Giesen, I have sympathy with Mr M’s position, the conclusion that his position is not consistent with K’s welfare and best interests was clearly open to the Judge on the evidence. Moreover, it is a conclusion with which I agree. While there are aspects of the procedural path which preceded the hearing in the Family Court which are far from satisfactory, they do not alter that view. I have, nonetheless, placed them on record.
[68]The appeal is dismissed.
[69] If any issue of costs arises and cannot be resolved by counsel, memoranda may be submitted.
Rebecca Ellis J
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