Moana's Mother v Smith - [2022] NZHC 2934

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 NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

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

[2022] NZHC 2934

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:
23-25 May 2022; further evidence 27, 30, 31 May and 1 June

2022 (received on 27 June 2022)

Appearances:

J Mason and N Thrupp for Appellant

R C Laurenson, R S Stannard and A E Gordon for First Respondents

R Schmidt-McCleave and C McKay for Second Respondent B R Arapere and A Chesnutt for Third Respondent

S L Hayward and L McLennan as Counsel for the Child

Judgment:

9 November 2022

JUDGMENT OF CULL J

Moana’s Mother v Smith & Chief Executive of Oranga Tamariki Ministry for Children & Taipa [2022] NZHC 2934 [9 November 2022]

TABLE OF CONTENTS

Para No.

Background[3]

Approach on appeal [16]

Grounds of appeal[19]
Structure of this judgment[23]

The factual findings[24]
The statutory framework of the OT Act[27]

Tikanga definitions[31]

Purposes of the OT Act[34]

Section 5 principles[36]

The application of the OT Act’s principles [40]

Do some principles trump others?[44]

Analysis[48]

Was there error in applying the principles to these facts[58]

Conclusion[73]

The psychological evidence [77]

Mr Dwyer’s evidence[80]

The partnership evidence[104]

The Judge’s risk assessment[108]

Impacts of reverse uplifts[127]

Conclusion[136]

Rejection of social worker evidence [138]

The Family Court’s assessment[140]

Bias and recusal[154]

The Family Court orders [174]

Guardianship Orders[180]
Custody and access orders[182]

COCA applications[187]

The partnership approach [190]

Updating evidence[194]

Result[208]

[1] This is an appeal by the mother of a seven-year old Māori child, “Moana,”1 who was placed in the custody of a non-Māori couple, “the Smiths”, by the Family Court on 9 September 2021.2 She challenges the correctness of the Family Court decision in light of the legislative direction of the Oranga Tamariki Act 1989 (the OT Act). She says the OT Act requires that Moana, a Māori child should be placed in the

1 Moana, her mother, her caregivers and the extended whanau are all assumed names and were used by the media in the publication of this case. The names are adopted to protect the privacy and confidentiality of the persons involved.
2 Chief Executive of Oranga Tamariki v [Moana’s mother and Moana] [2021] NZFC 9089 [Family Court decision].

care of a Māori family, “the Taipas,” who are connected to her iwi and have Moana’s younger brother presently in their care.

[2] The Chief Executive for Oranga Tamariki and the Taipas both sought to be heard in support of Moana’s mother’s appeal. The Smiths and Counsel for the Child support the Family Court’s decision.

Background

[3] Moana is the…

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: [2022] NZHC 2934
Decision Date: 9 November 2022

CaseChat Overview and Summary

Moana’s Mother, the mother of a seven-year old Māori child, appealed a Family Court decision that Moana should remain in the care of a non-Māori couple, “the Smiths.” Moana’s mother claimed that the Family Court decision was incorrect in light of the legislative direction of the Oranga Tamariki Act 1989 (the OT Act). She said the OT Act requires that Moana, a Māori child, should be placed in the care of a Māori family, “the Taipas,” who are connected to her iwi and have Moana’s younger brother presently in their care. Moana’s mother appealed the Family Court decision on the following five grounds: (1) the Judge failed to consider and/or misapplied the statutory cultural provisions of the OT Act, making the Family Court decision non-compliant with Māori tikanga and Treaty obligations; (2) the Judge mischaracterised the evidence of the psychologist by overstating the risks of an alternative placement to the Smiths; (3) the Judge overlooked the adverse evidence about the Smiths and placed a disproportionate blame on the social workers of OT; (4) the decision was biased because the evidence of the OT social workers was rejected by the Judge, who considered their evidence to be tainted; and (5) the Judge erred in refusing to recuse himself because there was a real possibility he would not bring an impartial mind to the resolution of the issues he was required to decide and this gave rise to a “real possibility of impartiality.” Moana’s mother asked that the Family Court decision be overturned and that a further s 101 custody order be made again in favour of the Chief Executive of Oranga Tamariki with conditions. The conditions she sought were that Moana is placed in the day-to-day care of the Taipas and appropriate access is given to Moana’s mother, Moana’s siblings, and to the Smiths. The High Court dismissed Moana’s mother’s appeal and upheld the Family Court orders.

Orders