MC v Chief Executive of Oranga Tamariki Ministry for Children
[2024] NZHC 1322
•24 May 2024
NOTE: PURSUANT TO S 437A OF THE ORANGA TAMARIKI ACT 1989, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE
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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2023-404-2123
[2024] NZHC 1322
IN THE MATTER OF An Appeal UNDER
Section 341 of the Oranga Tamariki Act 1989
BETWEEN
MC
Appellant
AND
CHIEF EXECUTIVE OF ORANGA TAMARIKI – MINISTRY FOR CHILDREN
Defendant
Hearing: 2 May 2024 Appearances:
Appellant in Person
L Jackson for the Respondent
Judgment:
24 May 2024
JUDGMENT OF POWELL J
This judgment was delivered by me on 24 May 2024 at 11.30 am.
Pursuant to R 11.5 of the High Court Rules.
…………………..
Registrar/Deputy Registrar
MC v CHIEF EXECUTIVE OF ORANGA TAMARIKI – MINISTRY FOR CHILDREN [2024] NZHC 1322 [24 May 2024]
[1] The appellant has appealed a decision of Judge R von Keisenberg in the Family Court at Manukau.1
[2]In the decision under appeal, Judge von Keisenberg:2
(a)dismissed MC’s application to discharge orders made under ss 101 and 110 of the Oranga Tamariki Act 1989 (the Act). Those orders, made by the Family Court3 and upheld on appeal,4 had granted custody of four of MC’s five children to the Chief Executive of Oranga Tamariki (the Chief Executive), and appointed the Chief Executive as an additional guardian of the four children;5
(b)granted the Chief Executive’s application to discharge the order appointing the Chief Executive as an additional guardian under s 110(1)(a) of the Act and substituted it with a sole guardianship order in favour of the Chief Executive, pursuant to s 110(2)(a); and
(c)struck out an application by MC under s 306(1)(d) and (f) of the Act on the basis that there was no jurisdiction to make the order sought.
[3] The approach to be followed on appeal is as set out by Hinton J in an earlier appeal brought by MC in relation to the same proceedings. Although MC’s notice of appeal included the words “hearing de novo”, an appeal does not proceed by way of a de novo hearing simply because an appellant wishes it so. Instead, as Hinton J observed:6
1 Chief Executive of Oranga Tamariki – Ministry for Children v [MC] [2023] NZFC 4541.
2 At [98].
3 Chief Executive of Oranga Tamariki – Ministry for Children v JA [2018] NZFC 4705.
4 MC v Chief Executive, Oranga Tamariki [2020] NZHC 50.
5 Chief Executive of Oranga Tamariki – Ministry for Children v JA, above n 3, at [110].
6 MC v Chief Executive, Oranga Tamariki, above n 4, (emphasis added); The approach set out by Hinton J is reflected in the written submissions filed by counsel for Oranga Tamariki, Ms Jackson. In oral submissions, Ms Jackson questioned whether the approach should be an appeal by way of rehearing or in part an appeal against the exercise of a discretion. In this case, I consider that adopting an approach consistent with the earlier appeal is appropriate but note that, in the context of this appeal, there is really no substantive difference in approach given the lack of specificity in the matters raised on appeal.
[13] Ms MC has a right of appeal to this Court against the Judge’s orders under s 341 of the Act. The appeal is to be conducted by way of rehearing.7 Given this appeal concerns an assessment of the welfare and interests of children, the appeal is a general appeal, rather than an appeal from the exercise of a discretion.
[14] The Supreme Court has held that in general appeals conducted by way of rehearing the Court has responsibility for arriving as its own assessment of the merits of the case.8
[15] The Court of Appeal noted in Green v Green9 that when applying this approach it remains axiomatic that the onus is on the 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. Absent the identification of such an error the appellate court should not intervene.
[16] An appellate court will also consider any particular advantages enjoyed by the first instance court.10 In this case, Judge Malosi had the advantage of being able to observe both the demeanour of the parties throughout the hearing and also the witnesses as they gave their evidence. With the benefit of that advantage, Judge Malosi found that Ms MC and Mr TP were not particularly credible or compelling witnesses, had a lack of insight and were disconnected from reality.11 Further, in light of the specialist jurisdiction which the Family Court exercises, its views will naturally be given weight.12
Background to the Family Court decision
[4] The proceedings have a long history, and it is important to understand the context before turning to MC’s present appeal. I adopt Judge von Keisenberg’s summary of what had occurred prior to the decision under appeal:
[6] Proceedings under the Act were first commenced in May 2016 by the Chief Executive in respect of the applicant’s five children. The Chief Executive sought a warrant to uplift the children after [N] then aged 7 (who had earlier been diagnosed with a developmental delay), presented at school with bruising to his body. An order for uplift was granted. Following the granting of the order, the three girls were placed together, [N] was placed with a CCS care provider and the oldest child [S] placed separately.
[7] The Chief Executive subsequently applied for a declaration that the children were in need of care and protection together with a s 78 custody order. These orders were opposed by [MC].
[8] On 30 August 2018 following a five-day defended hearing, Her Honour Judge Malosi issued a decision in which several orders made:
7 High Court Rules 2016, r 20.18.
8 Austin, Nichols & Co Inc v Stitching Lodestar [2008] NZSC 103, [2008] 2 NZLR 141.
9 Green v Green [2016] NZCA 486, [2017] 2 NZLR 321 at [30].
10 At [31].
11 MC, above at n 3, at [102].
12 D v S [2003] NZFLR 81 (CA) at [19].
a)The s 78 orders were discharged;
b)A declaration made that all the children were in need of care and protection pursuant to s 14(1)(a) and (b);
c)A custody order under s 101 was made in favour of the chief executive (excluding the oldest child “S”);
d)An additional guardianship order pursuant to s 110(2)(b) in favour of the Chief Executive;13
e)Pursuant to s 18B(2)(c) the court made an order that there was no reasonable possibility of the children being returned to the care of either [MC] or [TP].14
[9] At the time of the 2018 hearing, the children had been out of their mother’s care for over two years. The key findings in Judge Malosi’s decision were:15
a)The dynamics between [MC] and [TP] had the hallmarks of a relationship beset by family violence;
b)[N’s] injuries were non-accidental and overwhelmingly pointed to him being physically assaulted by [TP];
c)That neither [MC] and [TP] were especially credible or compelling witnesses, commenting on their lack of insight and disconnect from reality;
d)Despite the length of time the children had been out of their mother’s care, neither she nor [TP] had taken sufficient steps to address the concerns which had led to the removal of the children in the first place.
[10]In her decision, Judge Malosi concluded:16
Although [MC] and [TP] have both undertaken a number of courses targeting the violence within their relationship, their parenting and personal issues; neither of them in my view has demonstrated an ability to apply those learnings to real life situations. If anything, over time they seem to have become more entrenched in their perception that the “system is weighted against them and that they are suffering great injustices as a result. To be fair to [TP], I find that he has been socialised to those views by [MC].
[11] In September 2018, [MC] sought leave to appeal Judge Malosi’s decision. After preliminary matters had been dealt with, the appeal was eventually heard in the High Court on 5 December 2019.
[12] On 31 January 2020, Hinton J dismissed the appeal and confirmed the orders and directions made by Judge Malosi.
13 Chief Executive of Oranga Tamariki – Ministry for Children v JA, above n 3, at [6]–[12].
14 At [110].
15 At [93].
16 At [100].
[13] In July 2020, [MC] applied to discharge the orders under the Act. Her Honour Judge Rogers declined leave to file proceedings on the grounds contained in s 206A of the Act that these proceedings had been filed less than two years following determination of similar proceedings. In declining leave, Judge Rogers stated that [MC] was simply relitigating the same issues with no evidence of any material change in her circumstances.
[14] In September 2020, [MC] filed an application for access to all five children. The hearing which was conducted on 29-31 March 2021 dealt with both access issues and guardianship issues which had arisen. On day two of the hearing [MC] walked out of court and did not return for the third day of hearing. The Chief Executive had also sought directions to deal with guardianship issues arising for the children including immunisations, overseas travel, haircuts and ear piercing. Judge Rogers made comprehensive orders in [MC’s] absence, striking out her applications for want of prosecution and making directions in respect of the guardianship issues.
[15] On 14 June 2021, [MC] applied without notice to remove the Court appointed guardianship of the Chief Executive under s 110 and for an order under s 29 Care of Children Act. The matter came before Judge Otene who determined the application was in effect an application to discharge the orders under s 125 of the Act. This is the current application which was the subject of this hearing.
[16] On 4 October 2021, the Chief Executive applied to discharge the s 110(1)(a) additional guardianship order and in substitution seek an order to be appointed as sole guardian for [N], [A], and [R] under 110(2)(a) of the Act. A similar application was filed in respect of [K] in March the following year. [MC] opposes the making of these orders.
[17] On 14 November 2022 [MC] sought leave to file an application under s 306(1)(d) and (f) of the Act to impose conditions on the s 101 order. Counsel for the Chief Executive while acknowledging conditions can be imposed oppose such an order being made on the basis that it was filed out of time and there are no grounds or jurisdiction in this case to do so. Leave was granted and it was directed by Judge Mahon on 13 March that this application was to be addressed at this hearing.
The Family Court decision
[5] After setting out the background recounted above, Judge von Keisenberg addressed two preliminary matters. First, her Honour noted a request by MC for the appointment of a court-appointed legal representative but noted that this request had previously been declined by Judge Mahon within a month of the hearing and, on this basis, the request was also declined by Judge von Keisenberg.17
17 Chief Executive of Oranga Tamariki – Ministry for Children v MC, above n 1, at [18]–[20].
[6] Secondly, Judge von Keisenberg noted that, while less than two years had elapsed since the decision of Hinton J confirming the ss 101 and 110 orders, which would generally preclude the commencement of new proceedings, per s 206A of the Act,18 the hearing should nonetheless proceed as, “if leave were not granted this would extend litigation further.”19
[7] Her Honour then went on to note MC’s position, which was summarised as being, in essence:20
… that the children were uplifted by Oranga Tamariki illegally, that the 2018 decision of Judge Malosi was wrong and that it remains in the children’s best interest and welfare that they are returned to [MC’s] care.
[8] Judge von Keisenberg went on to review the original care and protection concerns and then reviewed the evidence, before concluding that the original rationale for the orders had not changed. Judge von Keisenberg noted in particular:21
Even with passage of time, [MC] has been unable to see the rationale for the Court’s decisions and has continued to rail against these findings by bringing further proceedings by way of appeal or instituting further proceedings such as the present. While it is entirely her right to do so, the likelihood of success is likely to be in doubt given her inability to focus on the individual needs of each of the children.
[9] Judge von Keisenberg noted that the evidence showed that MC’s behaviour has resulted in access to her children ceasing and that:22
… the children have now strongly indicated through their lawyer their preference not to have face to face contact with their mother and have articulated their concerns and worries about the contact. [MC] has not found a way of maintaining a relationship with her children, even in a limited way through letters, gifts, etc as offered to her.
[10] As her Honour went on to note, other actions of MC were having an impact on her relationship with her children:
[76] It has also been clearly detrimental to [MC’s] relationship with the children that since 2018 she has continued to post disturbing and inappropriate
18 Oranga Tamariki Act 1989, s 206A prevents applications being filed within two years of a previous order.
19 Chief Executive of Oranga Tamariki – Ministry for Children v [MC], above n 1, at [24].
20 At [35].
21 At [73].
22 At [75].
content on social media using their images without any apparent concern for their feelings simply to highlight her grievances with the Ministry. Absent from [MC’s] narrative was any expression of concern or insight around the children’s emotional well-being. Her evidence that [A] is old enough to know the “truth” as an excuse for posting her picture and a false story on TikTok demonstrated a remarkable lack of insight into the mind of a 15 year old who has clearly told her lawyer and social worker on multiple occasions that she just wants “a normal life”. Despite knowing the impact that her posts were having on the children and their caregivers through lawyer for child’s and the social workers reports, [MC] remains unmoved maintaining that she is the victim of Oranga Tamariki abuse by them unjustifiably removing her children from her.
[11]Judge von Keisenberg accordingly concluded:
[79] Having considered the evidence and in particular what [MC] has told the Court as to her reasons for seeking the return of the children, I am not satisfied that she has addressed the original concerns in any meaningful way or demonstrated any understanding about what has happened or gained any insight into the needs of her children to support a discharge of the orders. I accept counsel for the Chief Executive’s submission that [MC] is still unable to separate her own feelings of injustice she believes has been inflicted on her, from the needs of her children.
[80] For all these reasons and most particularly because the children have consistently expressed the view since 2018 that they do not want to return to their mother’s care I find there are no grounds to warrant a discharge of the current s 101 custody order in favour of the Chief Executive and accordingly the application is dismissed.
[12] With regard to the Chief Executive’s application under s 110(1)(a), Judge von Keisenberg concluded, with reference to both the evidence before her and the earlier decision of the Family Court, that the order appointing the Chief Executive as sole guardian of the four youngest children should be made:
[92] I am satisfied that there is ample evidence to demonstrate that [MC] is unable to put herself in her children’s shoes and for that reason, I am not confident that given her mindset she is able to undertake the role as a co- guardian of the children. Although a sole guardianship order as sought by the Chief Executive is not reviewable in the same way as a custody order is reviewable, nevertheless it is possible for [MC] to seek to discharge a sole guardianship order once she is able to demonstrate that she has the ability and willingness to undertake the responsibility. However, I am not satisfied that she has the ability or willingness to focus on her children’s individual needs at this time.
[93] Given the emotional fallout for the children arising from the litigation in 2021, when the Chief Executive was forced to apply for directions for decisions to be made for the children, it is important in my view that guardianship decisions are able to be made for these children without the necessity of further proceedings. For that reason, I am satisfied there should
be an order for sole guardianship under s110(2)(a) in favour of Oranga Tamariki for each of the four children.
[13] The final issue before Judge von Keisenberg was MC’s s 306 application. As Judge von Keisenberg noted, s 306 of the Act relates to youth offenders and provides a mechanism for those subject to supervision orders to have further conditions imposed. As the Youth Court had not imposed any sentences on any of the children, s 306 could not possibly apply, and the application was therefore struck out for want of jurisdiction.23
The case for MC
[14] MC has filed a range of documents in support of the appeal. These include (in addition to the notice of appeal and amended notice of appeal) various points on appeal and a document headed “Final Submission”. There can be no doubt from the documents filed that MC feels strongly that the decision at issue was wrongly decided. The reasons why she considers this to be the case are less than clear, however. While, in broad terms, I agree with Ms Jackson on behalf of the Chief Executive that MC’s issues appear to relate to procedural matters and concerns with the custody and guardianship decisions, this does not take me very far. On the contrary, it is in fact striking that there are no specific criticisms of any aspect of Judge von Keisenberg’s judgment. Instead, the criticisms, such as they are, are all very general in nature. For example, MC identified the following “critical issues” in her final submissions:
4.The recent decision by Judge R von Keisenberg, Chief Executive of Oranga Tamariki, in the case of Ministry for Children v. [MC] (NZFC 4541, June 12, 2023) raises serious concerns. This ruling not only brings the courts into disrepute but also violates my right to justice under the [New Zealand] Bill of Rights Act 1990.
5.The Judge erred by failing to justify the removal of my guardianship. Cross- examination evidence was ignored, and misinformation presented during the proceedings was not adequately addressed.
6.The safety of our children is at stake, as evidence crucial to their well-being has been disregarded.
7.Alienation of any child constitutes child abuse under the Family Violence Act 2018
There are clear breaches of justice and prejudice. While Oranga Tamariki
enjoys leniency in filing deadlines, I, despite my crippling disabilities
23 At [94]–[97].
resulting from years of legal oppression and abuse, am denied the same consistency in practice. The existing orders from 2018 fail to reflect our children’s needs and rights. They do not ensure consistent contact with essential attachment figures.
(Emphasis in original)
[15] Nowhere in MC’s written submissions did MC detail how each of these criticisms was manifest. On the contrary, there was no reference to any particular part of the judgment at all.
[16] No further light was cast at the hearing. Unfortunately, MC was unable to provide almost anything in the way of oral submissions in support of her appeal, with such submissions as were made tending to focus upon MC’s contention that Oranga Tamariki had illegally uplifted the children in 2016 and upon errors made by Judge Malosi in the 2018 Family Court judgment.
[17] I take it as a sign of MC’s desperation that, at the commencement of the hearing before me, she handed up a document purporting to be some type of application in the Māori Land Court, which MC attempted to use as a basis to adjourn her appeal or to otherwise stay the appeal hearing. A support person, who was seated next to MC at the outset of the appeal, claimed to be a “native assessor” at the Māori Land Court, pursuant to Te Ture Whenua Māori Act 1993. When he was advised that there was no such thing, he became abusive and had to be removed by Court Security. As I explained to MC at the time, the Māori Land Court has no jurisdiction to deal with appeals of decisions from the Family Court and if she wished to proceed with her challenge to Judge von Keisenberg’s decision, it would have to be in the High Court. I observe for the record that MC requested another support person be allowed to sit next to her as a McKenzie Friend and this request was granted. MC was, however, unable to articulate any oral submissions in support of her appeal.
Discussion
[18] I have now reviewed the earlier judgments of both the Family Court and High Court, as well as the directions issued by the Family Court prior to the hearing, and the evidence before that Court, including the affidavits of MC and the social
worker called by Oranga Tamariki, Judy Freeman, and the notes of evidence at the hearing before Judge von Keisenberg.
[19] Having considered that material, I have been unable to identify any procedural or substantive issue, let alone any error, that could possibly have led to a different outcome.
[20] In particular, it is clear that the refusal of the Family Court to appoint a lawyer to assist MC does not give rise to a basis to appeal Judge von Keisenberg’s decision because, as Judge Mahon had explained to MC, there was no mechanism to do so.24
[21] Likewise, it is clear from the record that MC was not unreasonably prevented from placing evidence before the Family Court. Instead, it appears that all affidavits tendered by MC were received and considered by the Family Court and there is no indication that there was other evidence that would have changed the evidential picture available, still less any application by MC for leave to file any such evidence on appeal.
[22] There is equally no indication for any suggestion that Judge von Keisenberg was in any way biased or prejudiced against MC, nor indeed that Oranga Tamariki were somehow in breach of earlier orders made by the Family Court, or had otherwise admitted to perjury, as MC contended.
[23] It is also clear that the issues that appear to be the most important to MC, being the initial uplift of the children in 2016 and the correctness of Judge Malosi’s decision, were not matters properly before Judge von Keisenberg. They had instead been finally determined by Hinton J in the earlier High Court appeal.
[24] I turn to the substantive concerns of MC. It is clear that these are so generalised they provide absolutely no basis for impeaching any aspect of the decision under appeal. Far from the result being inconsistent with the evidence before the Family Court, I am satisfied, having reviewed that evidence, that no other decision was
24 Chief Executive of Oranga Tamariki – Ministry for Children v JA FC Manukau FAM-2016-092-534, 24 February 2023.
possible with regard to MC’s application for discharge of the ss 101 and 110 orders, and I agree entirely with Judge von Keisenberg’s analysis set out in the judgment under appeal.
[25] While it appears that MC cannot accept it, the evidence is clear that MC’s relationship with her daughters has effectively broken down. Unfortunately, MC has not found a way to maintain communications through correspondence and her attempts to use social media have backfired badly. In contrast, the evidence before the Court establishes that MC’s daughters are happy in their placement and doing well. Likewise, it appears that MC’s relationship with her youngest son is also tenuous, against the background of that child’s own special needs and his placement with CCS Disability Action caregivers, in which he too is doing well. In those circumstances, I am satisfied that the evidence shows that cancelling the orders as sought by MC would have been nothing short of a disaster, and not in any of the children’s best interests.
[26] Likewise, having reviewed the earlier need to involve the Family Court in a guardianship decision,25 and noting MC’s ongoing distrust of Oranga Tamariki, it is clear that the decision to grant the Chief Executive sole custody of the children was also correct and entirely appropriate.
[27] Unfortunately, it is clear that for the position to change in any material way will require a long and patient commitment from MC so as to enable her to re-establish a relationship with each of her children. This will inevitably be an incremental process with her daughters, starting with the type of limited written correspondence suggested by Oranga Tamariki. Similar patience will have to be shown by MC if she is to ensure that access to her youngest son is able to continue and develop in a productive way.
[28] Finally, although the striking out of the s 306 application did not appear to be the subject of any explicit submission by MC, for completeness I record that this aspect of the decision too was clearly correct. It was indeed the only mechanism advanced by MC in the Family Court to provide for access but, as Judge von Keisenberg correctly noted, the section applies only to youth offenders. As none of her children
25 Chief Executive Oranga Tamariki – Ministry for Children v JA [2021] NZFC 3068.
came into this category, there could therefore be no jurisdiction for any orders under that section. Striking out was accordingly the only possible outcome.
Decision
[29]The appeal is dismissed.
[30] In the event that the Chief Executive seeks costs against MC, a memorandum setting out the basis for such an award, together with details of the amount sought, is to be filed one month from the date of this judgment. MC will then have a month to respond, following which I will determine the issue on the papers.
[31] Finally, I direct that the publicly released version of the judgment is to be anonymised, as per previous judgments, by substituting the letters “MC” or “the appellant” for [the appellant] as appropriate and making such other consequential amendments consistent with the anonymisation of earlier decisions in this proceeding as may be required.
Powell J
1