Mable v Rangi
[2024] NZHC 3803
•13 December 2024
NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION,
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IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE
CIV-2023-454-109
[2024] NZHC 3803
UNDER the Care of Children Act 2004 IN THE MATTER OF
an appeal from a decision of the Family Court at Palmerston North on 7 November 2023
BETWEEN
[CHELSEA MABLE]
Appellant
AND
[MIKAERE RANGI]
Respondent
Hearing: 27 November 2024 Appearances:
B N Snedden & K Denhardt for Appellant B McLean & K Job for Respondent
C Davidson for Child
H Irwin-Easthope Counsel AssistingJudgment:
13 December 2024
JUDGMENT OF CHURCHMAN J
Introduction
[1] In a decision dated 7 November 2023, Family Court Judge Moss appointed the respondent Mr [Rangi] as guardian of the child [Elle] and ordered that Ms [Mable] was to have day to day care of the child, Mr [Rangi] was to have contact with [Elle],
[MABLE] v [RANGI] [2024] NZHC 3803 [13 December 2024]
and that [Elle]’s name be changed in recognition of her whakapapa.1 The names of the parties to these proceedings have been modified.
[2]The appellant now appeals that decision on the basis that:
(a)The Judge erred in failing to correctly interpret the purposes of Part 2 of the Status of Children Act 1969 (SOCA) and the Care of Children Act 2004 (COCA) in the context of artificial insemination by a non- parent donor by applying a parent-child relationship instead of a donor- child relationship when appointing Mr [Rangi] as an additional guardian.
(b)The Judge erred in determining the weight the relevant tikanga principles should carry in taking into account the principles under s 5 of COCA in the appointment of a non-parent donor as an additional guardian.
(c)The Judge erred in interpreting the role of a guardian beyond that envisaged by COCA and concluding, on that basis, that Mr [Rangi] should be appointed an additional donor despite countervailing facts.
(d)The Judge erred in including Mr [Rangi]’s surname as a third name where he should not have been appointed an additional guardian.
(e)The Judge erred in failing to properly define the terms and conditions of contact in a high conflict and low communication case between the parties and in setting contact at a frequency ill-suited to the child’s particular circumstances given Mr [Rangi]’s inconsistent contact, Ms [Mable]’s relocation to the South Island, and supplanting a parent- child relationship on a donor-child relationship.
[3] The appellant also seeks leave under s 143(2) of COCA to appeal a direction made in the judgment under appeal pursuant to s 46R of COCA, premised on the
1 [Rangi] v [Mable] [2023] NZFC 10811 [decision on appeal].
notion that the direction about the child’s name involves a dispute between the child’s guardians as opposed to parents and donors.
Background
[4] [Elle] was conceived by artificial insemination following the execution of a pre-conception co-parenting agreement between Ms [Mable] and Mr [Rangi] on 14 March 2017 (the Agreement).
[5]The Agreement provided, amongst other things, that:
(a)Both parties are to be involved in the discussions regarding the child’s name. Ms [Mable] will make the final decision if required and in this event Mr [Rangi] will have the opportunity to contribute a middle name.
(b)The child’s family name will be [Mable] hyphenated with [Rangi].
(c)The child’s birth certificate will have Ms [Mable] (Mother) and Mr [Rangi] (Father).
(d)During the first five years the child will live with Ms [Mable] and reasonable, occasional access will not be withheld from Mr [Rangi]. At this time both Ms [Mable] and Mr [Rangi] agree to review custodial share. The expectation at the date of agreement is that Ms [Mable] remains primary guardian from this time but further arrangements can be made towards scheduled visitation with Mr [Rangi].
(e)Special occasions: Childs Birthday, Christmas Day, New Years can be shared out between both parties, and discussed in advance so parents can make plans.
(f)Ms [Mable] will be provided with financial assistance from Mr [Rangi].
(g)Irrespective of new partners being introduced to the relationship, critical decisions will be decided by Mr [Rangi] and Ms [Mable].
(h)It is expected that the child would be heavily integrated with Ms [Mable] and partner [redacted] extended family but they should also be aware of and involved with Mr [Rangi]’s family.
[6] However, it appears that following the breakdown of Ms [Mable]’s previous relationship, which resulted in Ms [Mable] ceasing contact with her former partner’s child, Ms [Mable] became resistant to Mr [Rangi]’s involvement in [Elle]’s life. When Ms [Mable] recorded details for [Elle]’s birth certificate, Mr [Rangi] was not recorded as the father, and he was not consulted on [Elle]’s name. Mr [Rangi] also appears to have not been as engaged with [Elle] as was originally intended under the agreement, having limited contact with her for the first few years of her life.
[7] When Mr [Rangi] sought for [Elle] to have greater involvement with his side of the family, Ms [Mable] refused. Ms [Mable] came to the view that [Elle] having contact with Mr [Rangi] would no longer advance her welfare and best interests. This resulted in proceedings before the Family Court in which an interim parenting order was made prior to the decision now under appeal.
Decision on appeal
[8] In the decision under appeal, the Family Court Judge considered Mr [Rangi]’s application under s 27 of COCA to be appointed a guardian of [Elle]. Her honour acknowledged that the proceedings had begun with an application under s 19, but that application had been discontinued with the encouragement of the Court. She found that in interpreting matters related to the best interests and identity for a Māori child, it was necessary to ensure proper consideration of familial, community and cultural matters inherent in the development of the identity of a Māori child.
[9] The Judge noted a lack of submissions concerning the cultural component of the child’s life from the LGBTQI+ community and stated while it may appear there had been uneven consideration of that aspect of the child’s upbringing, consideration of matters of Māori identity were required under Te Tiriti o Waitangi.
[10] The Judge stated application of statute to the rights and identity of children is incomplete without application of the principles of tikanga. She noted within tikanga and Te Ao Māori, children are a taonga and that the health and wellbeing of Te Ao Māori rests on the health and wellbeing of Māori children. She also referred to previous decisions where the applicability of tikanga was recognised, including Ellis,2 Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board,3 Barton-
Prescott v Director-General of Social Welfare,4 and Takamore v Clarke.5
[11] The Judge determined that it was consistent with statutory interpretation that the broader concept of whakapapa was a relevant and necessary consideration for a Māori child. She found the Court cannot consider the child’s identity and maintenance of the child’s relationships (as required under s 5(b) and (f) of COCA) without considering the advantages and obligations inherent in whanaungatanga and whakapapa. The Judge consequently determined s 27 could not be interpreted without having regard to those concepts.
[12] The Judge referred to the co-parenting agreement between the parties and found the provisions as to contact were insufficiently clear to be enforceable or to be converted to a parenting order without further examination. She determined the agreement in respect of the child’s name, however, was clear.
[13] The Judge noted the psychological evidence that Ms [Mable]’s anxiety over Mr [Rangi]’s inconsistent contact with the child was a significant relational factor hindering the development of the relationship between the child and Mr [Rangi].
[14] The Judge found Ms [Mable]’s correspondence with Mr [Rangi] prior to the signing of the co-parenting agreement demonstrated that Ms [Mable]’s view prior to [Elle]’s birth, was that she wanted to develop a family unit in which Mr [Rangi] would play a part, but when it came to the point of developing that relationship, she changed her mind. She also noted the applicant’s submission that he would not have agreed to
2 Ellis v R [2022] NZSC 114 at [262].
3 Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation [2020] NZCA 86, [2020] NZRMA 248.
4 Barton-Prescott v Director-General of Social Welfare [1997] NZLR 179 (HC) at 189.
5 Takamore v Clarke [2012] NZSC 116.
share genetic material unless there was a strong foundation for co-parenting and enabling their child to belong within his whānau and identity.
[15] She also noted the psychologists’ concern with Mr [Rangi]’s lack of contact, and the psychologists’ views that he needed to change his approach, with the Judge finding Mr [Rangi] tended to dismiss the need to take account of individual parenting matters and instead criticised the psychologists on the basis they did not understand Te Ao Māori.
[16] The Judge rejected Ms [Mable]’s evidence that she did not understand the terms of the co-parenting agreement, given it had been prepared from a template she and her then partner had used for her partner’s child.
[17] The Judge also dismissed the submission that the avoidance of conflict was the primary objective, noting the absence of Mr [Rangi] as a guardian deprived [Elle] of a broad inclusion in his rich heritage, a separate set of attitudes in relation to education, access to Te Reo Māori in an everyday setting, and guidance in education. She found it also would deprive [Elle] of access to the rich spiritual world which forms the foundation of Te Ao Māori.
[18] The Judge found even if Mr [Rangi] was not appointed as a guardian, [Elle] would still be a member of his whānau, as her whakapapa links would not be altered. However, she determined that declining recognition that Mr [Rangi] has the responsibility of a guardian, within the legal structure which conditions the lives of children, would reduce the equivalence in the partnership of the two cultures.
[19] The Judge remarked that inherent in the membership of and identity within a bicultural community is an equivalence of recognition of the strengths, riches, and responsibilities of each culture. She held the appointment of Mr [Rangi] as a guardian enabled a greater potential equivalence for [Elle]. Whilst she considered that there was some risk that major decisions which the mother would seek to make may cause a conflict which paralyses the mother’s own future progress, the Judge considered this risk was less than the risk to [Elle] of excluding Mr [Rangi] as a guardian. She
considered there was more to gain for [Elle] with Mr [Rangi] as a guardian than without, and that his appointment advanced [Elle]’s welfare and best interests.
[20] The Judge regarded Ms [Mable]’s opposition to any contact between [Elle] and Mr [Rangi] as extreme. She found contact had been extremely difficult for [Elle] and that she had only just begun to develop a relationship with Mr [Rangi]. She determined that contact should continue to occur on a fully supervised basis each fortnight until [Elle] was six, and thereafter not more than three-weekly. The Judge rejected Ms [Mable]’s proposal that contact be reduced to a monthly basis on the grounds that this seemed to only be sought for convenience.
[21] In respect of [Elle]’s name, the Judge noted the terms of the agreement between the parties and found the agreement sufficiently clear to consider its terms could be embodied in an order. She noted Ms [Mable]’s opposition to the middle name proposed by Mr [Rangi], and the profound significance it had to Mr [Rangi], having links to Ruapehu. It was determined that given the co-parenting agreement specifically provided for the applicant to choose a middle name, and that [Elle] would benefit from having the name, [Roimata] would become her middle name. However, the Judge declined to give [Elle] a different, double-barrelled surname containing both parties’ surnames, finding this would cause adversity for Ms [Mable] and stress greater than the immediate benefit that [Elle] would have from it. Instead, Mr [Rangi]’s surname was added as a third name.
Approach on appeal and legal principles
[22] A party to a proceeding under COCA that has been determined by the Family Court can appeal to the High Court as of right, unless the decision on appeal is made under ss 46C or 46R, in which case leave of the High Court is required. Those provisions relate to applications by children to review decisions of parents or guardians and applications for a court direction where there is a dispute between guardians, respectively.
[23] The applicable principles to be applied on an appeal are confirmed in P v K.6 The appellant must show the Judge acted on a wrong principle, failed to take into account some relevant matter, took account of some irrelevant matter, or was plainly wrong, with recognition to be accorded to the specialist insights, skills and experience of the Family Court Judge.7
[24] The purpose of COCA is to promote children’s welfare and best interests and facilitate their development by helping to ensure that appropriate arrangements are in place for their guardianship and care, as well as to recognise certain rights of children.8
[25] The welfare and best interests of a child in their particular circumstances must be the first and paramount consideration in the administration and application of COCA and in any other proceedings involving the guardianship of, day-to-day care or contact with a child.9 Any person considering the welfare and best interests of a child must have regard to the principles in s 5 of COCA,10 and may take into account the conduct of the person seeking to have a role in the upbringing of the child to the extent it is relevant to the child’s welfare and best interests.11
[26] Section 5 of COCA sets out the principles relating to a child’s welfare and best interests, which include:
(a) a child’s safety must be protected and, in particular, a child must be protected from all forms of violence (as defined in sections 9(2), 10 and 11 of the Family Violence Act 2018) from all persons, including members of the child’s family, family group, whānau, hapū, and iwi:
(b) a child’s care, development and upbringing should be primarily
the responsibility of his or her parents and guardians:
(c) a child’s care, development, and upbringing should be facilitated by ongoing consultation and co-operation between his or her parents, guardians, and any other person having a role in his or her care under a parenting or guardianship order:
(d) a child should have continuity in his or her care, development, and
6 P v K [2004] 2 NZLR 421.
7 At [17].
8 Care of Children Act 2004 [COCA], s 3(1).
9 Section 4(1).
10 Section 4(2)(a)(ii).
11 Section 4(2)(b).
upbringing:
(e) a child should continue to have a relationship with both of his or her parents, and that a child’s relationship with his or her family group, whānau, hapū, or iwi should be preserved and strengthened:
(f) a child’s identity (including, without limitation, his or her cultural, language, and religious denomination and practice) should be preserved and strengthened:
(g) a child must be given reasonable opportunities to participate in any decision affecting them.
[27] Section 15 of COCA defines guardianship as having, in relation to the child, all duties, powers, rights and responsibilities that a parent of the child has in relation to the upbringing of the child as well as every duty, power, right and responsibility vested in the guardian of a child by any enactment. These duties, powers, rights and responsibilities include providing day-to-day care for the child, contributing to the child’s intellectual, emotional, physical, social, cultural and other personal development, and determining for or with the child, or helping the child to determine questions about important matters affecting the child.12 Important matters affecting the child are stated to include the child’s name, changes to the child’s place of residence, where and how the child is to be educated, and the child’s culture, language and religion.13 A guardian must act jointly with any other guardians of the child in exercising their duties, powers, rights and responsibilities as a guardian, except when providing day-to-day care.14
[28] Section 27 of COCA permits the court to appoint a person as a guardian of a child, either in addition to or as sole guardian for a specific purpose or generally, or for a specified period or not.
[29] Section 41 provides that a party to an agreement between the parents of a child and a donor so far as it relates to contact and the role of the donor in the upbringing of the child, may seek to have the terms of that agreement embodied in a court order that may be enforced, and may apply for directions on certain matters that cannot be agreed
12 Section 16(1).
13 Section 16(2).
14 Section 16(5)–(6).
with other parties to the agreement.15 However, such an order can only be made where all parties consent to it.16
[30] Section 46R of COCA provides that in disputes between guardians concerning the exercise of their guardianship, any such guardian can apply to the court for a direction.
The appointment of the respondent as guardian
Appellant’ submissions
[31] Mr Snedden, counsel for the appellant, submits that the Judge erred in making Mr [Rangi] a court-appointed guardian under s 27 of COCA. He argues the correct application should have been made under s 19 of COCA, as he argues the effect of an order under s 27 prevents any future partner of Ms [Mable] being appointed a Guardian, contrary to the purposes of relevant legislation. He also submits that the appointment of a donor father as a guardian ought to be considered in the context of the Human Assisted Reproductive Technology Act 2004 (HART), Status of Children Act 1969 (SOCA) and COCA.
[32] Mr Snedden submits that the overarching principle is that during childhood a non-parent donor remains at arm’s length legally from the child with limited court ordered exceptions. He says a Māori child’s link to their whānau, hapū and iwi is preserved even if donated from a disinterested genetic father and refers to donor information being able to be requested when the child is 18 years or older under ss 47 and 50 of HART. He also contends that when the purposes of SOCA and COCA are read together, it is clear a genetic father does not have parental duties, powers, rights and responsibilities as a guardian imposed on him.
[33] Counsel states COCA falls short of providing automatic guardianship to genetic fathers, and says whilst there is no definition of “father” under the Act, its meaning in this context can only be read as “genetic” or “biological” father due to the primacy of a parent role in all other aspects of the Act.
15 Section 41(1)–(2).
16 Section 41(3).
[34] Mr Snedden argues the appointment of a guardian in addition to a mother is a tightly controlled statutory exercise, with the mother the sole guardian even if a long- distance male lover helped conceive a child. He also notes that whilst a non-donor partner is a parent where a woman becomes pregnant from an AHR procedure, they are not automatically a “guardian”. He points to the criteria needed to be satisfied in both these scenarios for the partner/lover to be appointed a guardian under s 18 or s 19 of COCA respectively.
[35] Counsel also points to the fact an additional guardian cannot be appointed if there is already a court-appointed guardian under s 23 of COCA, which he submitted means Mr [Rangi]’s appointment has meant no future partner of Ms [Mable] will be able to be appointed guardian. He therefore argues the logical path to guardianship by a genetic father in opposition to a mother can only ever be through s 19 of COCA.
[36] Mr Snedden submits that in concluding Mr [Rangi]’s appointment as a guardian was necessary for reasons of “legal recognition” and “equivalence in the partnership”, the Judge put a gloss on the statutory regime. He refers to the decision of Kacem v Bashir where the Supreme Court found the s 5 principles were all directed at the paramount consideration of the welfare and best interests of the child, and that there is no basis to rank principles.17 However, he acknowledges that a child’s link to whānau, hapū or iwi is separately categorised as a principle in itself. He submits the correct interpretation therefore must be that although a Māori child’s whānau, hapū and iwi is fundamental, the biological father’s ethnicity alone does not confer parental status on him, and that a donor has no automatic right to guardianship of a child, even though they may be the sole parental link to that child’s whānau, hapū and iwi.
[37] Mr Snedden argues that an individualised assessment of [Elle]’s particular circumstances was required, which would have concluded a donor in conflict with a mother would not advance [Elle]’s welfare and best interests. He submits an application under s 19 or s 27 cannot be an exercise of discretion, with the Judge’s task being to determine and evaluate the facts, considering all the relevant s 5 principles
17 Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1.
and other factors, and then making a judgment as to what course of action will best reflect the welfare and best interests of the child.
[38] He submits the Judge wrongly concluded the appointment of Mr [Rangi] as a guardian would advance [Elle]’s welfare and bests interests by ensuring a legally recognised pathway to development of the broad features of her identity. He states that was unnecessary as a matter of law and unjustified on the facts. He says it can be inferred from the facts there is a potential for there to be adverse emotional and psychological consequences to [Elle] from exposure to conflict, and notes Mr [Rangi] has already applied as [Elle]’s guardian to return her to Te Ika-a-Māui | North Island and be enrolled in a state school.
Respondent’s submissions
[39] Ms McLean, counsel for the respondent, submits that the Judge did not err in granting a guardianship order under s 27 of COCA rather than s 19, as there was no s 19 application before the Court, and thus, making an order under that provision, would have amounted to an exercise of the Family Court’s powers beyond its jurisdiction.
[40] Counsel also submits that an order under s 27 of COCA does not prevent any future partner or spouse of Ms [Mable] from being appointed a guardian of [Elle]. She says although it is correct that s 23 prevents any future partner or spouse from applying under that section to be appointed an additional guardian if there is already a court- appointed guardian, if any future spouse or partner of the appellant seeks to be appointed an additional guardian, they can do so through s 27 of COCA. She argues s 27 does not prohibit the further appointment of a court-appointed guardian where one has already been appointed, and submits the provision’s wording anticipates the possibility of more than one court appointed guardian by permitting the appointment of a person as a guardian in addition to any other guardian.
[41] With respect to the appellant’s submission that appointment of Mr [Rangi] as a guardian ought to be considered in light of the purposes and context of HART, SOCA and COCA, Ms McLean submits that parental rights are a separate, distinct concept to guardianship rights and the two concepts ought not be considered using the same lens.
She says guardianship alone creates a legal relationship between the individual and child which lasts for the duration of the child’s childhood whereas parenthood vests responsibilities on a parent which extend well beyond childhood and can vest entitlements on a child which guardianship alone does not, such as succession and citizenship. Ms McLean argues the Judge was not conveying to Mr [Rangi] the status of parent in her decision in legal terms as defined under the SOCA. She consequently submits the references to the Births, Deaths, Marriages and Relationship Registration Act 2021 and Child Support Act 1991 are not on point in relation to these grounds of appeal.
[42] Ms McLean submits that in regard to the principle under s 5(e) it is undeniable that Mr [Rangi]’s whānau, hapū and iwi are [Elle]’s also. In relation to the principle under 5(f), she notes [Elle]’s Māori heritage and that the co-parenting agreement recorded [Elle] would learn both Māori and English. She says proceedings involving a Māori child require the Court to give due consideration to a Te Ao Māori perspective and the spirit of Te Tiriti o Waitangi, with decisions made that promote the child’s mana tamaiti and whanaungatanga in a way which is consistent with the state’s obligations, including under international law.
[43] She refers to the United Nations Convention on the Rights of the Child (UNCROC), particularly arts 8, 9.3, 18.1 and 30, and notes Harrison J’s findings in P v K that regular progressive contact instead of guardianship would fall short of recognising the true spirit and purpose of the right collectively guaranteed by those provisions to a full relationship recognised by the legal tie of guardianship.18 She also refers to Law Commission’s report on New Issues in Legal Parenthood which noted that in Māori thinking children are not the exclusive possession of their parents, and belong also to their whānau, hapū and iwi, and are held by individuals on behalf of their descent group in trust for future generations.19
[44] Ms McLean submits the Judge’s analysis and application of COCA to the application for guardianship is consistent with the Māori world view, and that consideration of this world view is necessary due to the state’s obligations to
18 P v K [2004] 2 NZLR 421.
19 New Issues in Legal Parenthood (NZCLC R88, Wellington, 2005).
Te Tiriti o Waitangi and its international obligations. She contends the co-parenting agreement recorded an intention from both parties as to how Mr [Rangi] was to be involved in [Elle]’s life, with the question to be asked being how to give effect to that agreement and strengthen and preserve the relationship between Mr [Rangi] and [Elle]. She argues without the orders made by the Judge, the risk of [Elle] not knowing her identity or her tikanga and whakapapa is too high.
[45] Ms McLean also argues the ability to get information on her heritage from the information keeping regime is not available to [Elle], given those provisions of the HART only apply to donations made at a clinic, whereas [Elle] was the result of self- insemination. This means unless she is told about her genetic identity and lineage, she will have no other way or formally finding out information about her identity. Counsel submits without a direct connection to her whānau, hapū and iwi, [Elle] will have difficulty knowing and being exposed to this information. She says taking into account Ms [Mable]’s views in her evidence and via appeal, the Court can have no confidence in Ms [Mable] preserving or strengthening those links.
[46] It is submitted that there needs to be a meaningful connection between [Elle] and Mr [Rangi] which provides her with a real opportunity to develop a relationship with him which promotes [Elle]’s cultural identity. Ms McLean asserts that a legally recognised pathway is absolutely necessary, as Ms [Mable]’s opposition to contact means, left to their own devices, the parties are unlikely to be able to agree on contact and additional guardianship. She says this need is indicated by Ms [Mable]’s relocation to the South Island without consulting or informing Mr [Rangi].
Counsel for child submissions
[47] Ms Davidson filed detailed submissions in her role as counsel for child. She noted that Dr [Rangi] was not appointed an additional guardian ‘automatically’. This comment was in response to the use of the term ‘automatic’ in the submissions of counsel for the appellant.
[48] Ms Davison’s submission was that Judge Moss had adequately addressed all of the relevant issues including a level of conflict between the parties.
[49] In response to the submissions made on behalf of the appellant as to the effect of conflict, Ms Davidson’s submission was: ‘[the appellant’s] unilateral decision making in spite of an Order should not be utilised to argue against the Order being in place.’
[50] By way of conclusion Ms Davidson supported the Orders issued by Judge Moss and the rationale put forward for them in her judgment.
Submissions of counsel assisting
[51] Ms Irwin-Easthope filed submissions which focused on how tikanga might apply when the Court was exercising its powers under COCA.
[52] I summarise her submissions as being that tikanga is directly engaged on the facts of this case. [Elle] has mana tīpuna which forms a central part of her identify according to tikanga Māori. It is [Elle]’s whakapapa which is important rather than her father’s status as a donor or parent. Counsel also noted the importance of names for whakapapa and whanaungatanga. Ultimately counsel’s conclusion was that Judge Moss did not err in her consideration of the relevance and application of tikanga.
Analysis
[53] One of the submissions of the Lawyer for the Child was that the issue of whether ss 19 or 27 is the appropriate pathway for additional guardianship has been determined and thus issue estoppel should apply. That submission is not correct. The issue was never determined by the Court, but rather Mr [Rangi] withdrew his application under s 19 after being encouraged to do so by the Court, and instead filed an application under s 27. However, it is clear from the wording of s 19 that only a father of the child may apply to be appointed as a guardian under that provision. Although Mr [Rangi] is [Elle]’s closest paternal relative genetically and under tikanga, it is accepted by both parties that he is not legally her father. I also accept Ms McLean’s submission that the Judge could not have erred in this regard, given there was no application under s 19 before her, and thus she did not have jurisdiction to make an order under that provision.
[54] Although s 22 provides that a person cannot be appointed a guardian under s 23 of COCA if a guardian has already been appointed under s 27, this does not preclude an additional guardian being appointed under s 27. I note that in KFA v SVB, the Family Court held s 27 placed no restrictions on who may apply to the Court for appointment as a guardian.20 I consequently do not accept Mr Snedden’s submission that by granting the application under s 27 the Judge prevented a future partner of Ms [Mable] from being appointed [Elle]’s guardian.
[55] I do not consider that the ability for [Elle] to request information about her donor under ss 47 and 50 of HART, which includes information about the donor’s ethnicity, whānau, hapū and iwi, provides [Elle] a sufficient connection with her whakapapa and Te Ao Māori generally to render a guardianship order unnecessary. As submitted by Ms McLean, given the conception of [Elle] did not occur in a clinic but on a more informal basis, there is no “provider” for the purposes of ss 47 and 50, and so no order available to [Elle] under those provisions. Even if this information was available to [Elle], as submitted by Lawyer for the Child, the notion that simply having a child’s iwi and hapū links recorded under HARTA would enable [Elle] to fully understand and have connection with it is not realistic and undermines and minimises the relevant principles of tikanga (as identified by Ms Irwin-Easthope).
[56] I accept Mr Snedden’s submissions that under SOCA a sperm donor such as Mr [Rangi] is not legally a parent of the child they helped create. That premise has been agreed by both parties, with Mr [Rangi] making no claim to being [Elle]’s legally recognised father. However, I consider this, and the other related submissions by Mr Snedden in relation to other legislation concerning parents and child, has limited relevance to whether such a donor should be appointed a guardian under s 27 of COCA. As submitted by Ms McLean, parental rights differ from guardianship rights as the latter have a finite duration (until the child is 18 or in a de facto relationship), and there is no indication that parental rights were bestowed on Mr [Rangi] by the Judge’s decision. I do not consider that the fact birth records of a child conceived through AHR must specify the parent as determined under SOCA, or that non-parents like donors are not liable for child-support, weigh strongly against a finding that a
20 KFA v SVB (2008) 27 FRNZ 771 (FC) at [31].
donor should be appointed a guardian. The primary issue is what is in [Elle]’s best interests and advances her welfare.
[57] I do not consider that the Judge placed a “gloss” on the statutory regime under COCA for appointing a guardian, as contended by Mr Snedden. As is now well recognised following the Supreme Court’s decision in Ellis, tikanga is part of our common law and applies where it is relevant.21 The comments of Williams J in that decision, in which he included s 5 of COCA in a list of statutory provisions that either expressly or by implication “make some aspects of tikanga or Treaty principle relevant in a public law sense”,22 make clear tikanga is relevant to decisions under COCA, particularly where s 5(e) and (f) are engaged.
[58] It is accepted that in Kacem v Bashir the Supreme Court found there is no basis in COCA for a ranking of the principles,23 the Supreme Court also noted that “it is self-evident that individual principles may have a greater or lesser significance in the decision-making process, depending on the circumstances of individual cases”.24 I accept the submission of Counsel to Assist that in a case involving guardianship of a tamaiti Māori, tikanga is to be afforded significant weight, particularly in relation to whakapapa, whanaungatanga and mana, although I note tikanga is a complete system and care must be taken not to pick and choose elements.25 This conclusion is supported by McQueen J’s decision in Hopkins v Jackson, where she gave weight to the child’s Māori whakapapa and found that, from a tikanga Māori perspective, the full impact of changing the care arrangements on the child’s relationship with her whānau had not been properly accounted for.26 However, I also accept that under s 5(a) of COCA the safety of a child is always a paramount consideration where relevant,27 and that this also accords with tikanga, under which a child’s mana, hauora and wairua must be protected and safeguarded.
21 Ellis, above n 2, at [19].
22 At [262] per Williams J.
23 Kacem v Bashir, above n 17, at [8].
24 At [19].
25 At [180] per Winkelmann CJ.
26 Hopkins v Jackson [2022] NZHC 2649 at [68]–[69].
27 Kacem v Bashir, above n 17, at [19].
[59] Given this is a case that does not involve a guardianship dispute between two parents, but rather a unique circumstance of a parent and donor where the donor has initially agreed to have a relationship similar to parenthood with the child, I consider arts 9.3 and 18.1 of the UNCROC to be of limited relevance. However, art 8 of the Convention which requires parties to respect the right of the child to preserve their identity, including nationality, name and family relations as recognised by law, and art 30 which provides that indigenous or minority children shall not be denied the right, in community with other members of their group, to enjoy their culture, profess and practice their religion or use their own language, are highly relevant.
[60] It is undoubtedly correct that a donor has no automatic right to guardianship of a child, even though they may be the sole parental link to that child’s whānau, hapū and iwi. That is not an argument that was advanced by the respondent before the Family Court and was not a premise accepted by the Family Court Judge. Nevertheless, in such circumstances the importance of preserving the child’s whakapapa links, whanaungatanga and mana will often weigh strongly in favour of granting guardianship.
[61] I consider that the Judge did undertake an individualised assessment of [Elle]’s particular circumstances to determine what course of action best reflected her welfare and best interests. Judge Moss weighed the competing considerations of preserving and strengthening the child’s identity and her connection to her whānau, hapū and iwi, and the need to protect her safety and avoid conflict that could disrupt her development. I accept Ms Mclean’s submission that whilst avoiding conflict is an important consideration, such conflict is unfortunately inherent in almost all Family Court proceedings. The question is whether the degree of conflict is sufficiently serious to outweigh the benefits of appointing Mr [Rangi] as a guardian.
[62] There was evidence before the Judge that the risk of conflict between the parties could be mitigated through intermediaries, namely Mr [Rangi]’s aunt Ms [Hohana], who Ms [Mable] acknowledged she would be able to work with. Ms [Mable]’s resistance to [Elle] developing a connection with her whānau, hapū and iwi also indicates that without judicial intervention in appointing Mr [Rangi] a guardian, it is highly likely that [Elle] will be deprived of aspects of her identity as a
tamaiti Māori, and risks her having little engagement with Te Ao Māori and her cultural heritage. I consider that the Judge correctly decided there was more to gain from appointing Mr [Rangi] as a guardian than to lose. The recent agreement between the parties in respect to contact, as discussed below, indicates the differences between the parties are not irreconcilable, and that despite their conflicts, they are able to collectively make decisions that advance [Elle]’s welfare and best interests.
The child’s name
Submissions
[63] With respect to the child’s name, Mr Snedden submits that the Judge erred in both law and fact by amending [Elle]’s middle name to [Roimata]. He noted that the law already supported an offspring’s connection with their whānau, hapū and iwi, with [Elle] able to change her name on her 18th birthday, but acknowledged parents and donors can enter into agreements and that a party may apply to the court for its direction where the parties cannot agree under s 41 of COCA. He argues there is no analysis of Ms [Mable]’s objections to the name, which included the number of people with the name and Ms [Mable]’s inability to pronounce it, as well as [Elle]’s existing identification with the name [Elle Sarah Mable].
[64] He submits that in the circumstances of [Elle] being in Ms [Mable]’s sole primary care since birth, it is reasonable for Ms [Mable] to say her daughter identifies with the name “[Elle Sarah Mable]”. He says there is a live dispute about the everyday usage of [Roimata] irrespective of its legal registration, and that even if Mr [Rangi] has standing, that is reason enough to decline the change of name request.
[65] Ms McLean submits that the agreement signed between the parties indicates there was thought given to [Elle]’s name and they had turned their mind to that before she was conceived. She argues Ms [Mable]’s objections to the suggested name change are not sufficient to override the Judge’s order, given the addition of the name [Roimata] is of no real importance to Ms [Mable] on a day-to-day basis in regard to [Elle], as she will call her by whatever she chooses. Ms McLean submits the name [Roimata] should be retained to reflect [Elle]’s Māori heritage and goes towards the core of her identity on her paternal side. She says the Judge appropriately considered
and weighed the relevant factors, including the name’s cultural significance and the terms of the agreement, and that while there will come a time where she can choose for herself what name she wishes to be known by, the inclusion of a name attached to her whakapapa promotes her wellbeing and best interests.
Analysis
[66] I do not consider the Judge erred in this regard. She struck a fine balance in recognising the clear original agreements of the parties as to [Elle]’s name, including how she was to be named in the event they could not come to an agreement. She noted the disruption that would be caused by [Elle] having her last name changed to the double-barrelled name originally provided for under the co-parenting agreement and came to an effective compromise in adding “[Rangi]” as a third name instead. I accept Ms McLean’s submission that the addition of the name [Roimata] has no real impact on Ms [Mable]’s day-to-day care of [Elle], as although it is part of her legal name, it is unlikely to change what Ms [Mable] calls [Elle] at home. Given I have already acknowledged the importance of whakapapa and whanaungatanga in these proceedings, and the submissions of counsel assisting referred to at [52] above, it is clear to me the Judge’s order in this regard did promote [Elle]’s wellbeing and best interests.
Contact between the respondent and the child
Submissions
[67] In regard to contact between Mr [Rangi] and [Elle], Mr Snedden submits the Judge erred by failing to properly define the terms and conditions of contact in a high conflict and low communication case between the parties and setting contact at a frequency ill-suited to [Elle]’s particular circumstances. He says that although the Judge was notified of Ms [Mable]’s intention to move to Christchurch, and so was aware of logistical issues with contact, she made orders that lacked the definition required in a high conflict case. He argues the effect of the order was to return the decision making to parties in a case where they have been unable to make decisions, and so failed to advance [Elle]’s welfare and best interests. He says this has spurred another round of litigation concerning [Elle].
[68] Ms McLean submits that given the latest hearing on 22 October 2024, and the fact that agreement had been reached regarding interim contact, this ground of appeal is no longer of the import that it was when the appeal was filed. She says in that hearing, the parties agreed to interim arrangements, namely supervised monthly contact occurring one month in Wellington and one in Christchurch. She submits that those directions along with the assistance and involvement of Lawyer for Child provide sufficient definition for contact to occur without incident. She argues the Mr Snedden’s reference to a “high conflict case” applies to most matters that come before the Family Court, and that in those situations it is necessary to have a clear and definitive contact arrangement, which she says is now in place.
Analysis
[69] I accept Ms McLean’s submission that the issue of contact has largely been superseded by the subsequent events of Ms [Mable]’s relocation to Christchurch and the interim contact agreement between the parties. Although a more specific order in regard to contact would have been desirable, as noted in the submissions of the Lawyer for Child, Mr [Rangi]’s whānau showed a willingness to work with Ms [Mable] to build trust, with Ms [Mable] acknowledging that Mr [Rangi]’s aunt, Ms [Hohata], was someone she would be open to meeting and building a relationship with to bridge the divide between the families. Therefore, despite the conflict apparent between Ms [Mable] and Mr [Rangi], there was credible evidence before the Judge that contact arrangements could be agreed between the parties. I do not consider the Judge erred in this regard.
Conclusion
[70] The appellant has failed to demonstrate that the Family Court Judge erred in granting guardianship to Mr [Rangi] over [Elle], or in varying [Elle]’s name and making orders as to contact.
[71]The appeal is dismissed.
Churchman J
Solicitors:
Tōtara Law, New Lynn West for Appellant
Freebairn and Hehir, Palmerston North for Respondent Davidson Kelly Law, Palmerston North for Child
Whāia Legal, Wellington for Counsel Assisting
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