Mr v Chief Executive of the Ministry for Vulnerable Children, Oranga Tamariki
[2017] NZHC 757
•21 April 2017
NOTE: PURSUANT TO S 437A OF THE CHILDREN, YOUNG PERSONS, AND THEIR FAMILIES ACT 1989, AND S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO 11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE THE-FAMILY-COURT/LEGISLATION/RESTRICTION-ON-PUBLISHING- JUDGMENTS.
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CIV-2016-419-000326 [2017] NZHC 757
IN THE MATTER of an appeal against a decision of the
Family Court at Hamilton
BETWEEN
MR Appellant
AND
CHIEF EXECUTIVE OF THE MINISTRY FOR VULNERABLE CHILDREN, ORANGA TAMARIKI First Respondent
GE
Second RespondentRH
Third Respondent
Hearing: 10 April 2017 Appearances:
F Amarasekera and J Neimand for Appellant
R Bowe and M Sharplin for First Respondent
No appearance by or for Second and Third Respondents
K Tan for the childrenJudgment:
21 April 2017
JUDGMENT OF WYLIE J
This judgment was delivered by Justice Wylie
On 21 April 2017 at 11.00am Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar Date:…………………………
MR v CHIEF EXECUTIVE OF THE MINISTRY FOR VULNERABLE CHILDREN, ORANGA TAMARIKI [2017] NZHC 757 [21 April 2017]
Introduction
[1] The appellant, MR, appeals part of a judgment given by Judge G S Collin in the Family Court at Hamilton on 23 August 2016.1 The decision is challenged to the extent that it varied the terms of an interim custody order made pursuant to s 78(1) of the Children, Young Persons, and their Families Act 1989 (“the Act”), by discharging a “placement” condition requiring that MR’s two children – K and T – not be removed from the Waikato area.
[2] The appeal focuses on the operation of s 125 of the Act.
The parties
[3] The appellant is the mother of two girls, K, who is 10 and a half years old, and T, who is eight and a half years old.
[4] The second respondent, GE, is K’s father. He has taken a limited role in the substantive proceedings. He took no part in the hearing of the appeal. GE lives in the Nelson area. His mother and her partner live in Nelson. They currently have custody of K and T.
[5] The third respondent, RH, is T’s father. He has taken no part at all in any
aspect of the proceedings.
Background facts – Court orders
[6] K was born in late 2006. Initially she and MR lived in Nelson and GE had limited contact with his daughter.
[7] T was born in late 2008.
[8] At some stage MR moved away from Nelson. She took the children with her and they continued living with her. They were originally enrolled in a school in
Taupo, and later at various schools in or near Hamilton/Cambridge.
1 Chief Executive of the Ministry of Social Development v MR [2016] NZFC 7035.
[9] On 23 June 2016 K called MR’s friend – CD – and told her that MR was drunk and that she was worried about her. Subsequently K sent a text message to CD reporting that MR was “not waking up”. CD went to MR’s house and an ambulance and the police were summoned.
[10] Counsel advise that on the same day – 23 June 2016 – MR placed the children with CD.
[11] The authorities arrived and MR was admitted to the psychiatric unit at Waikato Hospital. A doctor diagnosed that she had lost consciousness after taking an overdose of valium together with alcohol. He considered that her presentation was consistent with somebody who was addicted to methamphetamine.
[12] A subsequent diagnosis noted the following:
(a) that MR is dependent on methamphetamine; (b) that she is dependent on alcohol;
(c) that she is dependent on sedatives; and
(d) that she has a borderline personality disorder.
The doctor who gave this diagnosis reported that MR was doing poorly and refusing treatment. He noted that she had severe mood dysregulation, was abusive and threatening, and that she had on occasion thrown objects about. The doctor expressed the opinion that if she refused drug and alcohol treatment, the only option would be to discharge her from hospital because there would be nothing that the hospital could do for her.
[13] On 1 July 2016:
(a) a whanau hui was held. GE and his mother travelled from Nelson to attend. A whanau agreement was entered into. Save for a 10 day holiday with GE in Nelson during the school holidays, the children were to be placed in the care of CD;
(b) MR filed a without notice application under the Care of Children Act
2004, seeking an order preventing the childrens’ removal from the Waikato area. The Chief Executive was not made a party to this application; and
(c) the application was granted by Judge Riddell, in the Family Court at Hamilton, on the papers filed.2 The Judge was satisfied that delay would be caused if she directed that the application proceed on notice. She considered that it was important that the children should continue to have contact with their mother. She directed that GE should be served with the proceedings by Facebook.
[14] MR refused treatment and on 5 July 2016 she was discharged from Waikato
Hospital.
[15] MR says that, on 7 July 2016, she was told by the children that they were travelling to spend holiday time with GE in Nelson. On 8 July 2016, the children left the Waikato and travelled to Nelson to stay with GE and his mother.
[16] On 18 July 2016:
(a) CD advised the Chief Executive that she was not prepared to look after the children any longer and that she believed that they should remain in Nelson with GE, and;
(b)GE advised MR by text that he would not be returning the children to the Waikato.
[17] On 20 July 2016, GE was served with the order made by Judge Riddell on 1
July 2016 preventing the childrens’ removal from the Waikato area. He in turn
advised the Chief Executive of the order.
[18] On 21 July 2016:
2 MR v GE FC Hamilton FAM 2016-019-566, 1 July 2016 (Memorandum of Judge Riddell).
(a) MR applied under the Care of Children Act, again without notice, for a parenting order and a warrant to enforce the order preventing removal. Again, the Chief Executive was not made a party to the application;
(b)at 3.28 pm, Judge Twaddle declined MR’s application for a parenting order. He also ordered that the children should be returned forthwith to the Waikato area, and to their previous care arrangements;3
(c) the Chief Executive applied for declarations on notice that each of the children were in need of care and protection. The applications were made under s 67 of the Act. The Chief Executive also applied, without notice, for interim custody orders under s 78(1) of the Act;
(d)the Chief Executive’s application for interim custody orders came before Judge Hunt at 5 pm. He granted the application. He considered that there was cause for serious concern as to the wellbeing of the children. He noted MR’s health and conduct and recorded his view that these matters affected her ability to provide safely for the children. He considered that it was a high risk situation,
and that protective action was required. He stated as follows:4
It is appropriate a warrant issue such that [C]hild [Y]outh and [F]amily take responsibility for the care of these children in the meantime as they are to be returned to the Waikato but subject to the terms of this order and in that regard reference to the orders made by his [H]onour Judge Twaddle to a return to the previous care arrangement is subject to his order.
[19] Interim custody orders were made in favour of the Chief Executive.
[20] As noted, the previous care arrangements were with CD, who had already said that she was not prepared to continue looking after the children. She had also said that they could not return to her because she feared for her safety, and that she
considered that the children would be at risk of being removed from her by MR.
3 MR v GE FC Hamilton FAM 2016-019-566, 21 July 2016 (Memorandum of Judge Twaddle)..
4 Re K and T FAM 2016-042-209, 21 July 2016 (Minute of Judge Hunt)at [1].
[21] On 22 July 2016:
(a) the Chief Executive applied, without notice, to discharge the order preventing removal of the children from the Waikato area, and to transfer the proceeding to the Family Court at Nelson;
(b)the application was considered by Judge Russell. He directed that the proceeding should be dealt with by the Family Court in Hamilton, that the Chief Executive’s application should proceed on notice, and that a hearing should be scheduled. A submissions hearing was directed.5
[22] The submissions hearing proceeded on 3 August 2016 before Judge Collin. He gave an oral judgment.6 He found that, by his minute dated 21 July 2016, Judge Hunt had attached a condition to the making of the s 78 order – namely that the children should be returned to the Waikato area. He discharged the then current s 78 order, and made a new order under the same section which expressly incorporated the condition that the children were not to be removed from the Waikato region. He
directed that they were to be returned forthwith to that region and that the proceedings were to be heard in the Hamilton Family Court. In the course of his judgment he considered whether there had been a material change of circumstances, and noted that the only significant new information was that contained in affidavit evidence filed by the Chief Executive, recording that it was difficult to find placements for children made subject to custody orders in the Waikato region. He recorded that he was concerned about requiring the return of the children to the Waikato and noted that there were identifiable risks – namely:
(a) there might be difficulties locating a placement;
(b)even if a placement could be found, it would likely be within the wider Waikato area, and that it might be at some considerable distance from MR’s place of residence;
5 Ministry of Social Development v MR FC Hamilton FAM 2016-019-566, 22 July 2016.
6 Chief Executive of the Ministry of Social Development v MR [2016] NZFC 6568.
(c) a placement in the Waikato would result in the children being placed with non-kin caregivers who would be unknown to them;
(d) he could not discount the possibility that the children might be split;
and
(e) there was no guarantee that the children could be returned to the school they had previously attended, and that if they could not be returned to that school, they would be placed in a third school within almost as many weeks.
[23] He noted as follows:7
Despite my concerns I do not have the power to embark on what would be essentially a judicial review of another Judge’s decision and in the absence of a material change of circumstances I do not consider that I have power to interfere with the orders that have been made. … The order stands for better or for worse.
[24] On 3 August 2016, the children were returned to Hamilton in accordance with the Court’s direction. K in particular became distressed as a result. The children were sent to an emergency placement. On 5 August 2016, the children were moved to another placement with non-kin caregivers who, it was hoped, would be able to take long-term custody of the children. The children could not enrol at their previous school. They were “out of zone”. They were enrolled at another school which they had not previously attended. Five days later, on 10 August 2016, the new caregivers advised that they could no longer care for the children, because the mother of one of the caregivers was critically unwell.
[25] On 11 August 2016, the Chief Executive applied, again without notice, to vary the s 78 custody order by removing the condition requiring that the children not be removed from the Waikato area. The application was made pursuant to s 125 of the Act. It was supported by an affidavit from the social worker who had been assigned to K and T’s case. The affidavit recorded that the Chief Executive had not been able to find a sustainable placement for the children, and that the various
changes in placement had been distressing for the children, particularly for K. It was
7 At [49].
noted that both children were distressed by living with strangers, and by having to attend a new school. The social worker expressed the view that the changes in placement were causing K and T emotional distress and that further changes would increase that distress. It was suggested that K in particular might “have the tendency to put herself at risk and abscond”.
[26] The Court directed that the application should proceed on notice, and scheduled it for a submissions hearing on 16 August 2016.8
[27] On 12 August 2016, the children had to move to another placement with new non-kin caregivers. This placement was temporary. It was only available until 23
August 2016.
[28] On 16 August 2016, the submissions hearing was held before Judge Collin. He reserved his decision.
[29] On 23 August 2016, Judge Collin issued his judgment.9 He noted that there were “proven placement difficulties”, and that the Chief Executive had stated his intention that the children should be returned to Nelson, in the event that the condition attaching to the s 78 custody order was to be discharged. He recorded the grounds advanced by the Ministry in support of this stance, and noted its argument that those factors in totality comprised a material change of circumstances sufficient to justify the discharge of the condition attaching to the s 78 order. He noted a submission made by MR that the Chief Executive’s position was factually unchanged, and that the change of circumstances advanced by the Ministry had come about only as a consequence of its inability to provide a placement for the children. The Judge recorded that he had had the benefit of the social worker’s report and affidavit, and also submissions he had received from Ms Tan as lawyer for the children. He noted that he had also received evidence from the bar in relation to the “caregiving situation” in the Waikato area. He accepted that it was very difficult to find foster caregivers, and that the Ministry in the Waikato area had reached a crisis
point. He observed that it could not guarantee placement of any child if whanau
8 Ministry of Social Development v GE FC Hamilton FAM 2016-042-209, 12 August 2016 (Minute of Judge Collin).
9 Chief Executive of the Ministry of Social Development v MR, above n 1.
options were unavailable. He then turned to give consideration to K and T’s particular needs, welfare and best interests. He noted that the law permitted a variation to a custody order if a material change in circumstances had occurred. He cited s 6 of the Act which requires that a child’s welfare and best interests must be the Court’s paramount consideration. He recorded that he had also had regard to the objects of the Act, and in particular the matters set out in ss 4(b), (d) and (e), and to the principles in ss 5(b), (c), (d) and (g). He noted that if the children were to be returned to Nelson, the impact on their relationship with MR would be contrary to those principles in the Act which require that children should be located near to whanau and family, and that they should not be moved a significant distance from the place where they have previously been living. He also referred to the principles set out in ss 13(1) and (2)(b), (c), (d), (f) and (g). He nevertheless concluded that he could not ignore that, if the children were to remain in the Waikato they would be subject to fourth placement with a caregiver in less than four weeks. He considered that there is a known harm to children if they are subjected to frequent changes of caregiver, particularly to the homes of caregivers that are unknown to them, and observed that there had been impacts on K and T as recorded in the social worker’s report, and as confirmed by the lawyer for the children in her report to the Court. He found that the Ministry was unable to provide stable care for the children in the Waikato, but that there was a family who were willing and able to provide care to them in the Nelson region. He accepted that a return to Nelson would impact on MR’s relationship with her children, but concluded that a placement with the family in Nelson was nevertheless consistent with the principles and objectives of the Act. He concluded that a material change of circumstances had occurred, and he varied the s 78 order by deleting the placement condition. He went on to make access orders in favour of MR. He directed that she was to have access to the children every second weekend, either in Nelson, or in Hamilton, with that contact to be supervised, and that the access was to be funded by the Ministry. He directed that the matter should remain in the Family Court in Hamilton.
[30] MR immediately applied for a stay of the order discharging the condition. An interim stay was granted and the issue of whether or not it should continue was scheduled for a one hour submissions hearing on 26 August 2016.
[31] On 24 August 2016, the children had to move to a fifth placement (including the initial placement with CD), again with non-kin caregivers.
[32] The hearing on 26 August 2016 proceeded, and Judge Collin issued his judgment on 31 August 2016.10 He concluded that K and T’s welfare and best interests would be best served if the stay ordered on 26 August 2016 was discharged, and he made orders to that effect.
[33] On 2 September 2016, a family group conference was held as required by s
72 of the Act. No agreement could be reached.
[34] On 3 September 2016 the children travelled to Nelson to live with GE’s
mother and her partner.
The current situation
[35] MR did not challenge Judge Collin’s order discharging the stay. As a result, the children were returned to Nelson. They have been placed with GE’s mother and her partner and they have been living in their home since 3 September 2016. The children have been attending a school in Nelson.
[36] MR has not opposed the children remaining in the custody of the Chief
Executive, at least until she can prove that the children are not at risk in her care.
[37] MR has availed herself of the access order made by Judge Collin. The first access visit was in Nelson on 18 September 2016. MR became agitated and ripped up various pieces of paper in front of the access supervisor. Access visits have been supervised by Care Solutions on behalf of the Chief Executive.
[38] MR has not completed treatment for her various addictions and mental health difficulties. She initially engaged with mental health and alcohol and drug addiction services. However, she disengaged from those services before final assessments could be completed. As at the date of hearing of the appeal, the Chief Executive had
not been advised by MR that she had re-engaged with any other provider.
10 Chief Executive of the Ministry of Social Development v GE [2016] NZFC 7273.
[39] The Chief Executive’s application for declarations that the children are in need of care or protection, filed on 21 July 2016, has not been resolved by the Family Court. Nor has any fixture been allocated for its determination.
The appeal
[40] The appeal is brought pursuant to s 341 of the Act. Pursuant to s 346 as it read at the time that the appeal was filed, the High Court Rules and ss 74 to 77 of the District Court Act 1947 apply, and pursuant to s 75 of the District Courts Act, and r
20.18 of the High Court rules, the appeal proceeded by way of re-hearing.
[41] In Austin, Nichols & Co Inc v Stichting Lodestar, the Supreme Court held that, on general appeals by way of re-hearing, the appellate Court has the responsibility of arriving at its own assessment of the merits of the case.11 The Court
noted as follows:12
Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion is an assessment of fact and degree and entails a value judgment. If the appellate court's opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ. In such circumstances it is an error for the High Court to defer to the lower Court's assessment of the acceptability and weight to be accorded to the evidence, rather than forming its own opinion.
[42] In Kacem v Bashir,13 the Supreme Court noted that there is a distinction between general appeals and appeals from the exercise of the discretion. The Court observed as follows:14
… the important point arising from Austin, Nichols is that those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion involves an assessment of fact and degree and entails a value judgment. In this context a general appeal is to be distinguished from an appeal against a decision made in the exercise of a discretion. In that kind of case the criteria for a successful appeal are stricter: (1) error of law or principle; (2) taking account of irrelevant considerations; (3) failing to take account of a relevant consideration; or (4) the decision is plainly wrong. The distinction between
11 Austin, Nichols & Co Inc v Stichting Lodestar [2008] 2 NZLR 141 (SC).
12 At [16] (footnotes omitted).
13 Kacem v Bashir[2010] NZSC 112, [2011] 2 NZLR 1.
14 At [32] (footnotes omitted).
a general appeal and an appeal from a discretion is not altogether easy to describe in the abstract. But the fact that the case involves factual evaluation and a value judgment does not of itself mean the decision is discretionary. In any event, as the Court of Appeal correctly said, the assessment of what was in the best interests of the children in the present case did not involve an appeal from a discretionary decision. The decision of the High Court was a matter of assessment and judgment not discretion, and so was that of the Family Court.
[43] In Porter v Ministry of Social Development, Kós J summarised the approach to appeals under s 341 of the Act as follows: 15
[29] This is an appeal by way of rehearing under s 341. The appellate Court is to form its own view on any non-discretionary determination by the Court below, such as the factual findings … It does not defer to the Court below, save respecting the advantages that Court had in seeing and hearing witnesses.
[30] But the appeal starts from the position that the appellant bears the onus of satisfying the appellate Court that it should differ from the decision below. That requires the appellant to first identify the respects in which she says the judgment below is in error. Secondly, she must persuade this Court that it should differ from the Court below. As Randerson J put it in WPH v ITP:
“ … some reasonably plain ground should be made out before [the] Court intervenes on appeal … ”
[31] On discretionary aspects, such as whether to make orders under ss
67 and 110, the position is different. The appellant must show that the Judge acted on an incorrect principle, failed to consider a relevant matter, considered an irrelevancy or was just plain wrong. Unless that threshold is met, the appellate Court will respect the exercise of discretion of the Judge below.
[44] In my judgment, the present appeal involves both non-discretionary and discretionary aspects. First, I must form my own judgment on whether or not there was a proper basis permitting the discharge of the condition attaching to the s 78 custody order. If I am so satisfied, then I must go on to consider whether the Judge acted on an incorrect principle, failed to consider a relevant matter, considered an irrelevant matter or was plainly wrong when exercising his discretion to discharge the condition. Unless I am satisfied that he erred in one or more of these respects, I
should not interfere with his decision.
15 Porter v Chief Executive, Ministry of Social Development [2013] NZHC 2666.
Submissions
[45] Ms Amarasekera submitted for MR that Judge Collin erred both in fact and in law in concluding that there had been a material change in circumstances, which justified the variation to the s 78 custody order. Four grounds were advanced in support of this submission:
(a) That the Judge erred in law by focussing his analysis on the outcome, rather than by examining the facts of the case.
(b)That the Judge erred in fact in concluding that there had been a material change in circumstances, because difficulties in finding a placement for the children in the Waikato area had already been considered by him in his decision of 3 August 2016. She submitted that a material change must be one that is unexpected and that it cannot flow consequent from the making of a s 78 order.
(c) That the Judge adopted too narrow an approach to the best interests of the children. It was argued that there are a number of other principles contained in the Act which were not given effect by the Judge’s decision, in particular the principle that MR as the children’s mother should remain involved in decision making in respect of them, the maintenance and strengthening of the relationship between the children and MR, the desirability of the children continuing to live in association with their family in the Waikato region, and the desirability of stability and continuity for the children which is available in the Waikato region. It was argued the Judge could have included conditions that the children are not to be separated and that they should be placed with experienced and stable caregivers.
(d)That it could not have been intended that the failure of the Ministry to comply with an order could be construed as a material change. It was argued the Chief Executive is seeking to use the Ministry’s failure to achieve the outcome ordered by the Court to force the placement of the children in Nelson.
[46] Mr Bowe, for the Chief Executive, submitted:
(a) that it is not necessary for the Chief Executive to establish that there has been a material change of circumstances, because of the operation of s 206(A) of the Act;
(b)that in any event the circumstances had changed, and that the change was material;
(c) that the welfare of the children must be the paramount consideration, and that it was in their welfare and best interests that the placement condition be discharged from the s 78 order;
(d) that alternative conditions were neither appropriate nor necessary; and
(e) that a floodgates argument advanced by the appellant was misconceived and that there are sufficient safeguards to prevent such issues being litigated unnecessarily.
[47] I received a helpful report from counsel for the children – Ms Tan. She argued that the Judge’s decision was correct in both fact and law, and that it is in the best interests of the children that the decision of the Family Court is confirmed. She advised that she had visited the children, and that both have confirmed that they are happy in their current placement. She reported that both children were able to talk about what they enjoy at school, about their friends, and about what they like at home. She noted that K talked positively about the fact that she and T had not been placed with people they do not know. She also noted that both children spoke positively about the access they have with MR. It was noted that neither of the children had any concerns or complaints about the care they have received from GE’s mother and her partner. Ms Tan noted that even though T is not biologically related to GE’s mother, she sees her and her partner as being her “nana” and “poppa”. She also noted that both children say that they would like to go back and live with MR. She observed however, that if MR is successful with this appeal, it will not result in the children being placed back in her care. Rather, it will result in
the children being returned to the Waikato area, but placed with new caregivers if new caregivers can be found.
[48] Ms Tan emphasised ss 4 and 6 of the Act. She referred to the case law, and submitted that any assessment of material change is a factual assessment, that has to be made in the context of the best interests and welfare of the children. She submitted that the Court should ask itself, first whether there was a change, and if so, whether it was material to the childrens’ best interests and welfare. She argued that Judge Collin did make the necessary factual assessment, and that he correctly determined that the change was material to the children. She disagreed with the appellant’s submission that there was no unexpected development in this case. She argued that in determining whether or not there was a material change of circumstances, the Court should focus not on whether the change was expected or unexpected, but rather on the reality of what had actually happened, and then move to an assessment of how what had happened impacted on the children moving forward.
Analysis
[49] The starting point is s 78 of the Act. Relevantly, it provides as follows:
78 Custody of child or young person pending determination of proceedings
(1) In any proceedings in a court under Part 2 in relation to a child or young person, the court may, on the application of any party to the proceedings, or a barrister or solicitor representing the child or young person, or of its own motion, make an order relating to the custody of the child or young person pending the determination of the proceedings.
…
(3) An order under subsection (1) may be made on such terms and conditions as the court thinks fit.
[50] It is clear from the authorities that s 78 of the Act empowers the Family Court to impose a placement condition on a custody order made in the favour of the Chief Executive.16
[51] Where a condition is imposed on an interim custody order made under s
78(1), an application can be made either to vary the order, or to cancel the condition, pursuant to s 125 of the Act. Relevantly, it provides as follows:
125 Application for variation or discharge of orders made under this
Part
(1) Any 1 or more of the persons specified in section 126 may, subject to that section, apply to the court for the variation or discharge of any of the following orders, or for the variation or cancellation of any condition of any such order:
(a) an order made under section 78 relating to the custody of a child or young person pending the determination of any proceedings:
…
The Chief Executive is one of the specified persons who may make application under s 125(1).17 On hearing an application under s 125(1), the Family Court may, inter alia, vary the order in such manner as it thinks fit, or discharge any condition of the order.18
[52] Section 125 is open ended. It does not say that an application to vary an interim custody order, or to discharge a condition attaching to such an order, can only be made in defined circumstances.
[53] The Courts have however been alive to the risk of multiple variation applications. Gilbert J in Chief Executive of the Ministry of Social Development v
DR stated as follows: 19
16 LC v Ministry of Social Development [2008] NZCA 169, [2008] NZFLR 828 at [69] and [72].
17 Section 126(g).
18 Section 127(1)(a) and (e).
19 Chief Executive of the Ministry of Social Development v DR [2016] NZHC 24, [2016] NZFLR
723 at [63].
… Variations can only be justified if there has been a material change of circumstances. Otherwise, there would be no restriction on the number of variation applications that could be brought by disaffected parties. Absent any material change of circumstances, any attempt to vary the decision would be tantamount to an impermissible collateral attack on it.
[54] I agree with these observations. They are rooted in commonsense and expediency, and should prevent unmeritorious and specious applications. There is no magic in the words “a material change of circumstances”. They do not have any statutory imprimatur, at least in s 125 of the Act.20 A material change of circumstances which might justify a variation is simply a significant change between the time the initial order is made and the time that application is made to vary it, that bears on the circumstances of the case, perhaps on the child the subject of the order made, or on one or more of the parties.21 A material change of circumstances does not need to be unexpected. It will often be the case that, at the time an application falls to be considered, it is possible that a certain state of affairs may occur. Because that state of affairs has not then happened, the application cannot be determined on that basis. If that state of affairs subsequently occurs, then even though this was not unexpected, its occurrence may require a variation either to the order made, or to a condition attaching to the order. To suggest otherwise would be unduly restrictive and could well be contrary to the welfare and best interests of the child the subject of the order.
[55] It was submitted by the Chief Executive that, by virtue of s 206A(4) of the Act, he did not need to establish that there had been a material change of circumstances of any party to the proceedings, or of any child who was the subject of the proceedings. I do not accept this submission. Section 206A deals with new proceedings, substantially similar to previous proceedings, and commenced less than two years after a final direction or order was given in the previous proceedings. It does not in its terms apply to an interim custody order made under s 78 of the Act. An interim custody order is a limited and temporary order, which lasts only until a
more permanent order can be made by the Family Court. The s 78 process is not
20 Similar words are used elsewhere in the Act, see, e.g. s 206A(2). They are also used in the Care of Children Act 2004, s 139A. The words are not defined in either Act.
21 And see Roundtree v Tipsanich [2015] NZHC 5488, [2016] NZFLR 99 at [10]-[14]; Vincent v
Rollo [2015] NZFC 5867 at [19]-[21]; Border v Tokoroa [2014] NZFC 10947, [2015] NZFLR
832 at [36]; and Becker v Publica [2015] NZFC 3657 at [28].
intended to be long lived.22 In my judgment, the Chief Executive, as the applicant for the s 125 variation, was required to show a material change of circumstances if the Court was to make an order discharging the placement condition which had been imposed.
[56] Turning to the facts of the present case, Judge Collin noted on 3 August 2016 that the Ministry was facing challenges finding placements for children removed from their parents in the Waikato region. He nevertheless considered that the Ministry should be able to place K and T, but acknowledged that it might face difficulties in doing so. In effect, Judge Collin concluded that the Chief Executive would be able to find a placement for K and T in the Waikato area.
[57] The children were returned to the Waikato. They were then placed with a number of caregivers, none of whom were able to provide stable long-term custody for them. When the matter came before Judge Collin on 23 August 2016, he accepted the evidence before him, that, contrary to his earlier expectation:
(a) no family or friends were available to look after the children;
(b)between 3 August 2016 and 23 August 2016, the children had been in three different placements;
(c) a further placement was imminent;
(d) the frequent changes in placement were causing the children harm;
and
(e) finding persons capable of providing appropriate care for the children had proved to be impossible.
As a result, the Judge found that there had been a material change of circumstances.
[58] MR has not persuaded me that Judge Collin erred in this regard. Indeed, I am satisfied that Judge Collin was correct in the conclusion he reached. The Chief
22 LC v Ministry of Social Development, above n 12 at [65]-[66].
Executive’s inability to place the children with stable caregivers was evidenced by the fact that there had been a number of placements over a very short period, and that a further placement was then pending. The evidence established that this was having an adverse effect on the children. The concerns voiced in the Judge’s decision of 3
August 2016 had come to pass. The end result was not unexpected; rather the possibility heralded on 3 August 2016 had become an actuality by 23 August 2016. There had been a significant change which had a bearing, primarily on K and T, but also on MR and GE. There was a material change of circumstances which permitted the making of an order discharging the placement condition.
[59] I now turn to consider whether or not Judge Collin erred in discharging the placement condition attaching to the s 78 interim custody order.
[60] As this Court has observed, fundamental to the policies and objects of the Act is the judgment of the legislature that the wellbeing of children, except in exceptional circumstances, lies with their families, and that where intervention is required, it is the family itself which is best placed to make decisions about the children. The family is an important object of concern under the Act, but this is
subject to the provisions of s 6.23
[61] Section 6 states that in all matters relating to the administration or application of the Act, other than those provisions dealing with youth justice, the welfare and best interests of the child or young person should be the first and paramount consideration, having regard to the principles set out in ss 5 and 13 of the Act.
[62] Clearly the welfare and best interests of K and T were the overarching consideration for the Judge. He recognised this and he expressly referred to s 6. The focus of his decision was K and T’s welfare and best interests.
[63] It was argued for MR that the Judge erred in construing and applying the best interest principles to the facts of the case, when he concluded that discharging the
placement condition, which would result in the childrens’ return to Nelson, would be
23 CMP v D-GSW [1997] NZFLR 1 at 3.
in their best interests. It was pointed out that there is no specific provision in ss 4, 5 or 13, which requires that the placement of a child be stable.
[64] I do not accept these submissions. In my view the Judge was entitled to conclude that the placement condition was resulting in harm to the children, because no stable placement could be found for them in the Waikato. There was direct evidence from the social worker that changes in placement were adversely affecting the children and causing harm to them. While a discharge of the placement condition was likely to result in the children being returned to Nelson, that of itself is not decisive. What was important was the avoidance of harm to the children and the evidence was clear in that regard.
[65] The Judge had regard to the objects of the Act, and in particular to those matters set out in s 4(b), (d) and (e), referring respectively to assisting parents and families to discharge their responsibilities to prevent children suffering harm, to assist children in order to prevent them suffering harm, and to provide for their protection from harm. This was appropriate, given that MR was unable to look after the children, that an interim custody order had been made in favour of the Chief Executive, and that the Judge had found on the evidence before him that the numerous changes of placement, all with non-kin caregivers, were causing harm to the children.
[66] It is not suggested that any other object set out in s 4 should have been considered by the Judge, and none seem to me to be relevant in the circumstances of this case.
[67] The Judge stated that he also considered s 5(b), (c), (d) and (g), dealing respectively with the maintenance and strengthening of relationships between the children and their family or whanau, the principle that consideration must always be given to how a decision affecting a child will affect the welfare of the child and the stability of the child’s family or whanau group, the principle that consideration should be given to the wishes of the child insofar as they can reasonably be ascertained, and the principle that decisions affecting a child should be made by
adopting an holistic approach that takes into consideration, without limitation, the
child’s age, identity, cultural connections, education and health.
[68] It was argued that there are other principles in the Act which were not given
effect to by the Judge’s decision – namely s 5(a) and (c).
[69] Again, I do not accept this submission. The Judge did not refer to those provisions but he did not have to do so given his factual findings. Section 5 is expressly made subject to s 6. Once the Judge had concluded that it was in the childrens’ welfare and best interests to break the impasse which remaining in the Waikato region presented, the principles in s 5 became less important. I return to this below at [72].
[70] The Judge recorded that he considered the principle set out in s 13(1), requiring that the Court adopt as the first and paramount consideration the welfare and interests of the child, and the further principle set out in 13(2), that in determining the welfare and best interests of the child, the Court must be guided by the principle that children should be protected from harm and have their rights upheld, specifically recognising that the primary role of caring for and protecting a child lies with the person’s family or whanau, that the family group should be supported, that intervention into family life should be minimised, that it is desirable that a child’s association with his or her family should be allowed to continue without interruption or disturbance, that where appropriate assistance and support should be provided to enable a child to be cared for and protected within his or her family or whanau, and that where a child is removed from his or her family or whanau, the child should be returned to and protected from harm within that family or whanau, and that where the child cannot be returned to the family or whanau, a child should be returned and protected so that he or she where practical lives in an appropriate family life setting in the same locality, so that family and whanau links are maintained and strengthened.
[71] It was argued that s 13(2)(f) emphasises the need for a child to have a family- like setting, in which he or she can develop a sense of belonging.
[72] The children have now been placed with GE’s mother, who is K’s maternal grandmother. K is with part of her family/whanau, and K’s father lives in the Nelson area. T has no blood relationship with GE, or with GE’s mother. There does not seem to have been any evidence before the Judge in relation to T’s family or whanau. RH, T’s father, took no part. K is however T’s half sister. T is with her, and, as Ms Tan confirmed, T is treating GE’s mother and her partner as if they were her “nana” and “papa”. The evidence suggested that GE’s mother and her partner are providing a family-like setting, and that the children have developed a sense of belonging in that setting.
[73] I accept that a consequence of the children being placed in Nelson is that it is more difficult for MR to take an active role in their day to day lives, and in the decision making required in relation to them. However, Judge Collin sought to mitigate the adverse effects of geographical separation by making generous access orders in favour of MR. The access orders go some way to maintaining and strengthening the relationship between MR and her children.
[74] In my judgment, Judge Collin was alive to all of the relevant issues. He had to balance the various competing factors. The focus on family life contained in ss 5 and 13 is subject to the paramouncy of the child’s welfare and best interests, detailed in s 6. The s 5 principles, and those contained in s 13(2) are not expressed in absolute terms, but rather as guidelines. They fall to be applied wherever reasonably possible, and subject always to the paramouncy accorded to the welfare and best interests of the child. The child’s welfare and best interests are not to be overridden by, or balanced against, the principles contained in the Act; the principles simply provide signposts which assist in the search for what it is likely to promote the
welfare and best interests of the child.24
[75] I do not consider that the Judge acted on an incorrect principle, failed to consider a relevant matter, considered an irrelevant matter, or that his decision was
plainly wrong.
24 T v Chief Executive of Ministry of Social Development, HC Auckland CIV-2009-404-1523, 4
September 2009; Re Baby B FC Feilding CYPF 15/2/93, 9 March 1993; and Re The S Children
(No 3) [1994] NZFLR 971 (FC).
[76] The appeal is dismissed.
Costs
[77] MR is legally aided and the Chief Executive did not seek costs. As a result, I
make no order in this regard.
Addendum
[78] I noted above at [37] that the Chief Executive’s application under s 67 of the Act for declarations that the children are in need of care or protection has not as yet been resolved.
[79] Section 200 of the Act provides that where application is made to the Family Court for a declaration under s 67, the Court should, as far as is practicable, give priority to proceedings in order to ensure that, unless there are special reasons why a longer period is required, the hearing of the application commences not later than 60 days after the application is filed in the Court.
[80] All counsel asked me to refer to this provision in my judgment, so that the attention of the Family Court is drawn to the provision, and so that the Chief Executive’s application under s 67 can be set down for hearing at the first reasonably
available opportunity. It is important that this should occur.
Solicitors:
Niemand Peebles Hoult, Hamilton
Ministry of Social Development, Legal Services, Wellington
K Tan, Hamilton
Wylie J
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