Moana's Mother v Smith - [2025] NZHC 954

NOTE: PURSUANT TO S 437A OF THE ORANGA TAMARIKI ACT 1989, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION,

PLEASE SEE https://www.justice.govt.nz/family/family-court/after-the-family- court/restrictions-on-publishing-information/

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV-2021-441-75 CIV-2021-441-76

[2025] NZHC 954

IN THE MATTER OF The Oranga Tamariki Act 1989

BETWEEN

MOANA’s MOTHER

Appellant

AND

MR and MRS SMITH

First Respondents

AND

CHIEF EXECUTIVE OF ORANGA TAMARIKI MINISTRY FOR CHILDREN

Second Respondent

AND

MRS and MS TAIPA

Third Respondents

Hearing: 19 August 2024

Appearances:

R S P Lyttelton and R Stannard for First Respondents via VMR S Conway and K Eom for Second Respondent

Judgment:

17 April 2025

JUDGMENT OF CULL J

[On Costs]

Moana’s Mother [Costs] v Chief Executive of Oranga Tamariki Ministry for Children [2025] NZHC 954 [17 April 2025]

[1] “Mr and Mrs Smith” seek indemnity costs against the Chief Executive of Oranga Tamariki (OT) (the Chief Executive), following the unsuccessful appeal1 by the mother of seven-year-old Māori child, “Moana”, against the Family Court’s decision2 to place Moana in the custody of a non-Māori couple, the Smiths.3 The Chief Executive submits that scale costs are appropriate.

Background

[2] Moana had been uplifted from her mother’s care on several occasions throughout 2017. In January 2018, the Chief Executive sought and was granted an interim custody order of Moana. A s 101 custody order was made under the Oranga Tamariki Act 1989 (the OT Act) on 30 July 2018 in the Chief Executive’s favour. Moana was returned to the care of her mother on 15 May 2018, but the return was short-lived.

[3] On 17 September 2018, Mr and Mrs Smith, who lived in Napier, were approved by OT as the caregivers of Moana. By November 2018, it was reported that it was no longer a goal that Moana be returned to her mother’s care, and that she was doing “very well” and reported to be “extremely happy” with her caregivers. The plan at the time indicated that her placement would “go to permanency.”

[4] On 1 January 2019, Moana’s younger brother was born. He was placed in the care of a Māori family and the third respondents, “the Taipas”, on 18 October 2019. The Taipas have iwi connections with Moana and her brother in Ngāti Kahungunu and live in Lower Hutt, Wellington.

[5] On 17 October 2019, the Smiths applied to discharge the s 101 custody order in favour of the Chief Executive and sought parenting orders for the day-to-day care of Moana, prompted by OT’s “sudden decision to transition Moana to new caregivers in Wellington,” namely, the Taipas. The Smiths’ applications were opposed by the

1      Moana’s Mother v Mr and Mrs Smith and Ors [2022] NZHC 2934 [Appeal decision].
2      Chief Executive of Oranga Tamariki v [Moana’s mother and Moana] [2021] NZFC 630 [Family Court decision].
3      In my judgment, I referred to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NZHC 954
Decision Date: 17 April 2025

CaseChat Overview and Summary

Mr and Mrs Smith, a non-Māori couple, seek indemnity costs against the Chief Executive of Oranga Tamariki (OT), following an unsuccessful appeal by Moana's mother against the Family Court's decision to place Moana in the Smiths' custody. The Chief Executive argues that scale costs are appropriate. The Smiths contend that they should be indemnified for their legal costs, as they were placed in the position of having to defend themselves against allegations of inappropriate care by OT. The Chief Executive submits that the Smiths were not standing in the shoes of the State and that their costs were not incurred to defend arrangements supported by the State. The Court considers the exceptional circumstances of this case, where the Smiths were placed in the position of having to defend themselves against allegations which they disputed factually. The Court grants the application for indemnity costs, emphasising that this is an exceptional case and the award is made on the basis of these particular circumstances. The Court reserves leave to the Chief Executive to file a memorandum of no more than five pages in respect of the reasonableness of the costs sought within three weeks of the date of this judgment. The appellants may file a reply memorandum of no more than five pages, within a further two weeks. Final orders will be made on the papers.

Orders