Paterson v Chief Executive of Oranga Tamariki
[2019] NZHC 444
•28 February 2019
NOTE: PURSUANT TO S 169 OF THE FAMILY PROCEEDINGS ACT 1980, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV 2018-404-1760
[2019] NZHC 444
UNDER The Oranga Tamariki Act 1989 and Care of Children Act 2004 IN THE MATTER OF
an appeal against a decision of the Family Court at Auckland
BETWEEN
PATERSON
Appellant
AND
CHIEF EXECUTIVE OF ORANGA TAMARIKI
First Respondent
MATENGA
Second RespondentMS A
Third Respondent
Hearing: 4 December 2018 Counsel:
A Cook for Appellant
R Bowe, L Kovaleski for First Respondent A Cooke, N Rasheed for Third Respondent K Buchanan for the child
Judgment:
28 February 2019
JUDGMENT OF DUFFY J
This judgment was delivered by me on 28 February 2019 at 3.00 pm pursuant to
Rule 11.5 of the High Court Rules.
PATERSON v ORANGA TAMARIKI, MATENGA & ANOR [2019] NZHC 444 [28 February 2019]
[1] Under s 169 of the Family Proceedings Act 1980 and ss 11B and 11C of the Family Court Act 1980, subject to exceptions, information identifying the child cannot be published. It is for that reason that the child’s name has been anonymised and pseudonyms have been used for the names of the appellant, second respondent and third respondent. This case may be reported and cited as “Paterson v Matenga”.
[2] Ms Paterson is the biological mother of Tama. The second respondent Mr Matenga is the biological father of Tama. Neither biological parent has custody of Tama. Shortly after his birth Tama was placed in the custody of the chief executive of Oranga Tamariki (Oranga Tamariki) in consequence of the Family Court making custody orders under s 101 of the Oranga Tamariki Act 1989 (the OTA).1 Oranga Tamariki then placed Tama in the day to day care of the third respondent, Ms A.
[3] Before Judge Parsons Ms Paterson applied to have the s 101 custody orders in favour of Oranga Tamariki set aside and then for the Court to make a parenting order under s 48 of the COCA in her favour, which would have effectively placed Tama in her custody. Judge Parsons dismissed the application to set the s 101 orders aside, which meant there was no jurisdiction to determine the application for a parenting order under the COCA. Accordingly, Tama remains in the custody of Oranga Tamariki and in the day to day care of Ms A. At the same time Oranga Tamariki successfully applied for a restraining order under s 87 of the OTA against Ms Paterson and Mr Matenga. These are the decisions under appeal.
[4] Judge Parsons made other orders as well that affect the parties. However, these were not considered in the appeal.
The statutory framework
[5] Tama has come into the custody of Oranga Tamariki through ss 67 and 101 of the OTA. Under s 67 of the OTA, a court may make a declaration that a child is in need of care or protection if it is satisfied that the child is being, or is likely to be
1 Tama was born on 22 April 2015. On 18 June 2015, the Family Court made a declaration under s 67 of the OTA that Tama was a child in need of care and protection. This was followed on 5 August 2015 by that court making orders under s 101 of the OTA placing Tama in the custody of the chief executive of Oranga Tamariki, who has placed Tama in the day to day care of Ms A.
harmed, ill-treated, abused or seriously deprived.2 Once a declaration has been made, the court can, under s 101, place the child in the custody of any person it thinks fit.
[6] If a s 67 declaration is made, the court can also make an order under s 87 restraining the affected person and others associated with the child from doing a number of things in relation to the child to whom the s 67 order relates.
Preliminary matters
Ms A’s cross-appeal
[7] At the hearing before Judge Parsons, Ms A applied to have her long-term care of Tama confirmed by means of a s 133A special guardianship order. This was dismissed by the Judge.
[8] In the lead-up to this appeal, Ms A filed lengthy submissions arguing that this aspect of the Judge’s decision should be revisited. Counsel for Oranga Tamariki supported this approach.
[9] Counsel for Ms Paterson points out that Ms A, as third respondent, is essentially attempting to pursue a cross-appeal without compliance with the formal requirements for such. Ms Paterson opposes this course of action.
[10]The High Court Rules 2016 provide:
20.11 Cross-appeal
(1) A respondent wishing to contend at the hearing of an appeal that the decision appealed against should be varied must-
(a)file a notice of cross-appeal in the registry of the court; and
(b)file a copy of the notice in the administrative office; and
(c) serve a copy of the notice on every other party directly affected by the cross-appeal.
(2) A notice of the cross-appeal must be filed no later than 2 working days before the case management conference relating to the appeal, except with the leave of the court.
2 Section 14(1).
…
(4) The court may, despite a respondent’s failure to file and serve a notice of cross-appeal,-
(a) allow the respondent to contend at the hearing that the decision appealed against should be varied;
…
[11] Ms A has not complied with the requirements of r 20.11. No documentation relating to what is in essence a cross-appeal, was filed until the day before the hearing.
[12] Ms Paterson objected to the cross-appeal being heard at the hearing. Ms A submitted that no prejudice arises.
[13] I refused to hear the cross appeal brought by Ms A. I considered that the parties had not had sufficient time to prepare for the appeal. To have proceeded at such short notice and contrary to the requirements of r 20.11 of the High Court Rules would in my view have been contrary to the interests of justice because those parties who opposed Ms A’s appeal had no proper opportunity to be heard in opposition to it.
Ms Paterson’s application to adduce further evidence
[14] The application to file further evidence seeks to put updating information before the Court that was not available at the time of the hearing before Judge Parsons.
[15] The other parties acknowledged the new evidence was in the form of updating evidence, the admission of which is easier to achieve on appeal than in the case of fresh evidence that was available at the time of the first instance hearing.3 The evidence was in the form of an affidavit from Ms Paterson.
[16] The new evidence informed the Court that Donna Browne, who was a witness in the Family Court hearing of this matter for Oranga Tamariki, has discontinued proceedings she had commenced in the Family Court in 2017. In those proceedings Ms Browne sought a final protection order against Ms Paterson and Mr Matenga, as well as seeking and obtaining a without notice temporary protection order against them
3 V P v R H [2015] NZHC 260, (2015) 22 PRNZ 545 at [6].
on 10 November 2017. Those proceedings were discontinued and the temporary protection order was withdrawn by order of the Court dated 24 September 2018.
[17] Oranga Tamariki questioned the relevance of the new evidence. I acknowledge it adds little if anything to the appeal. However, given it was not available at the time of the Family Court hearing and it shows Ms Browne is no longer fearful of Ms Paterson and Mr Matenga insofar as she has been prepared to remove the legal protection she had against them I am prepared to admit it.
Appellate approach
[18] Both Ms Paterson and Oranga Tamariki accepted the appeal is a general appeal which is subject to principles identified in Austin Nichols & Co Inc v Stichting Lodestar.4 Ms A and the lawyer for the child did not address this topic.
[19] In Kacem v Bashir the Supreme Court found that the appeal right given in the COCA in relation to a relocation decision was a general right of appeal.5 The decision under appeal in that case required an assessment of the child’s welfare and best interests. The same concerns are relevant to a consideration of the custody of a child under s 101 of the OTA. Accordingly, I am satisfied the appeal must be approached as a general appeal, which means the appellate court has the responsibility of arriving at its own assessment of the merits of the case.6
Appeal against refusal to make a parenting order
[20] During his short life Tama has spent very limited time in Ms Paterson’s care. On 18 May 2015 (just under a month after his birth) there was a family group conference at which consent was given to a s 67 declaration and s 101 order under the OTA.7 On 27 May 2015 Tama was removed from Ms Paterson’s care. Both were together again on 7 July 2015 when they entered the Merivale Whanau Residential Programme.
4 Austin Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
5 Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1.
6 Above n 5 at [5].
7 The s 67 declaration was made on 18 June 2015 and the s 101 order was made on 5 August 2015.
[21] On 6 August 2015 the Merivale Whanau Residential Programme recorded Ms Paterson as failing to acknowledge the risk Mr Matenga posed to Tama. In early September 2015 Mr Matenga was believed to be in the near vicinity of Merivale. On 8 September 2015 Tama was removed from Ms Paterson’s care.
[22] On 1 March 2017 Tama was returned to Ms Paterson’s care, but then removed again from her care on 9 March 2017. This coincided with Mr Matenga’s release from prison on 6 March 2017. Since this time Ms Paterson has enjoyed no more than limited supervised access to Tama. At the time of the hearing before Judge Parsons this was happening no more than four times per year. Mr Matenga currently has no access to Tama.8 When in the custody of Oranga Tamariki Tama has been in the day to day care of Ms A.
[23] The essential concern that has led to Tama being removed from Ms Paterson’s custody has little to do with concerns about her ability to parent him or that she may be violent and abusive toward him. Instead, it is about her relationship with Mr Matenga. That relationship has a history of violence. Mr Matenga was violent towards her before and after Tama was born. Despite the encouragement of Oranga Tamariki to cut all connection with him, she has maintained occasional contact with him. At times, this has been limited to distant communications because Mr Matenga has been in prison or avoiding the police.
[24] Oranga Tamariki is concerned that Ms Paterson does not recognise the violence Mr Matenga perpetuates towards her and the damaging effect on Tama if he is present in her company. Apart from the threat to kill Tama which Mr Matenga made in a telephone call from prison to Ms Paterson, Mr Matenga has not been violent towards Tama. However, seemingly neither Mr Matenga nor Ms Paterson are prepared to accept that exposure to his violence towards her risks being damaging to Tama. This is what lies at the heart of the opposition to Tama being returned to Ms Paterson’s custody.
8 In the Family Court Mr Matenga made strong objection to Tama being in the custody of Oranga Tamariki, and thus in the care of Ms A. Mr Matenga took no part in the appeal hearing.
[25] Regrettably many children in New Zealand grow up in homes where they see a parent suffer violence at the hands of the other parent. Not all of them are removed from such homes. Mr Matenga has a long criminal history which has led to him receiving multiple sentences of imprisonment, including for violence related offending. So do some other parents, yet their children are not removed into the care of Oranga Tamariki. Why Mr Matenga has attracted such concern when he has no history of hurting Tama or any other children is difficult to say. However, I need not focus on that question because in the appeal before me as Ms Paterson accepted that Mr Matenga’s behaviour is sufficient to show that he poses a risk to Tama. She has not challenged the Judge’s findings on that subject.
[26] On the other hand, Ms Paterson contends that she poses no risk to Tama. Regarding concerns that her connection with Mr Matenga is sufficient to establish that she also poses a risk to Tama (through exposing him to violence she might suffer from Mr Matenga), Ms Paterson answers those by asserting that she no longer has any connection with him. However, the Judge did not accept this. The question for me therefore is whether I should take a different view.
Analysis
[27] The driving force behind Judge Parsons’ decision to maintain the existing custody arrangements was the her finding that Ms Paterson continues to maintain a relationship with Mr Matenga, who is someone recognised to pose a real risk to the safety of Tama. In this regard, the Judge found:9
[106] The risk in relation to Tama if he were to be in the care of his mother, Ms Paterson is more complicated. She has been assessed as a nurturing mother with whom Tama is securely attached to. The psychological evidence drawn from a number of observations is clear that psychologically and emotionally as well as physically she can care for Tama. She is a strong, resourceful and determined woman. There is nothing to suggest that she is not in and of herself able to physically care for Tama.
[107] The risk of Tama being in her care lies primarily with her connection to Mr Matenga. While Mr Matenga and Ms Paterson were unwavering in their evidence that they have no contact, and do not seek it, the evidence demonstrates that despite a protection order made in October 2015, they have continued to have contact and have contrived to have such contact. When such contact has occurred there has been violence towards Ms Paterson
9 Above n 1.
alleged, and at times Mr Matenga has been convicted in relation to that contact. Ms Paterson and Mr Matenga were also involved in an alleged kidnapping towards the end of 2015 for which they were each convicted of related offences and received sentences.
…
[111] Ms Paterson has been assessed as a generally good enough parent emotionally and physically in terms of care of Tama. Where the major concerns lie are in her ability to keep away from Mr Matenga and the dangers he presents.
…
[129] Ms Paterson has demonstrated that she will mislead, craft and hide information to suit her cause. The evidence also demonstrates that there is current risk of her having ongoing contact with Mr Matenga. From an evidential assessment, there has been evidence of at least six known contacts between Ms Paterson and Mr Matenga – including contact that has resulted in police involvement and criminal charges. The very fact that Ms Paterson is less than forthcoming and honest about this presents in and of itself and added layer of risk.
[130] While the risks presented by Mr Matenga are more overtly identifiable, and relate to risks of physical and emotional harm, the risks relating to Ms Paterson are more insidious and at times have been masked. They relate to her lack of honesty and hence inability to accurately be able to assess risk, and also as submitted by Mr Telford are interrelated and correlated to her connection with Mr Matenga.
[28] Other than the expressed concerns about Ms Paterson’s ongoing relationship with Mr Matenga, Judge Parsons’ impression of Ms Paterson as a mother seems to be a reasonably positive one. This suggests two matters to me. First, despite arguments Ms Paterson makes in relation to other factors on which she says the Judge adopted an adverse view of Ms Paterson I would infer that those other factors had minimal impact on the Judge’s decision. Second, were it not for the Judge’s concerns about the ongoing relationship between Ms Paterson and Mr Matenga Ms Paterson may have been in a better position to advance her application for a parenting order.
[29] Ms Paterson seeks to contradict the Judge’s findings on the continuing relationship between Ms Paterson and Mr Matenga. Ms Paterson says that Judge Parsons erred in finding that she had been in an on-and-off-again relationship with Mr Matenga since Tama’ birth, and that that relationship was more likely than not to continue when Mr Matenga is released from prison. He was due for release around the time the Judge delivered her decision.
[30]However, the findings of Judge Parsons are clear:10
[90] The evidence heard during the hearing demonstrated that Mr Matenga and Ms Paterson were less than forthcoming about any contact they had directly with each other unless and until there was incontrovertible evidence of it that they could not deny. When there was such evidence, they each minimised, obfuscated and otherwise tried to contextualise the contact to present as accidental, unintended or forced contract from Mr Matenga.
[91] … comments made by Mr Matenga to the psychologist during the second report were consistent with the evidence provided by Ms Browne that he had been living with Ms Paterson from time to time during 2016… The evidence of Mr Matenga to the psychologist was that he had been working and living with Ms Paterson from 2015 to 2016 and had travelled between Waiheke and Whangaparaoa to report to Waiheke police. He also told the psychologist hat he had last resided with Ms Paterson before he went to jail when he was living and working in Waiheke.
[92] He further disclosed to the psychologist that he had also visited Ms Paterson at her home in Huntly in 2017. He explained he went there after Tama was removed to comfort her.
[93] There was also evidence that Mr Matenga had seen Ms Paterson during her stay at Merivale and also at the refuge in Whangaparaoa. Ms Paterson denies this ever occurred, as does Mr Matenga. While I do not accept the denials of Ms Paterson and Mr Matenga in this regard, and prefer the evidence of Ms Browne in relation to her having seen Mr Matenga at the refuge, in the end these events do not need to be determined absolutely given the findings I make below in terms of ongoing relationship between Mr Matenga and Ms Paterson. I find that they will each lie and fail to provide full honest answers in order to ensure that the image of not being in a relationship is maintained.
[94] Further evidence to support this finding is found in the evidence provided by Ms Flanagan, Ms Paterson’s previous lawyer. She provided evidence that Mr Matenga and Ms Paterson had both created a fiction in terms of the events of 18 December 2016 in order to demonstrate Ms Paterson acting protectively to cover the ongoing relationship between them. Ms Flanagan’s evidence was that she had been with Ms Paterson at the police station when she made the statement to the police about the alleged kidnapping of her by Mr Matenga, that she then later (in March 2017) learned to be a falsehood when hearing the information from Ms Browne together with viewing the video of 18 December 2016. This resulted in Ms Flanagan making the report of concern about Tama to the Ministry in March 2017, and the resultant uplift of Tama from Ms Paterson.
[95] It is clear that there has been ongoing contact between Mr Matenga and Ms Paterson that they have sought to hide from the Ministry until at least mid-last year. I do not accept that Mr Matenga had lied to the psychologist in providing this information to her at his first interview. Although he contacted the psychologist the following week to say he wished to retract the statements about being in a relationship with Ms Paterson and having seen her and stayed
10 Above n 1.
with her, and asked that the comments not be included in the report, Mr Matenga’s evidence was consistent with the evidence of Ms Browne who was not aware of what Mr Matenga had provided to the psychologist. I find that Mr Matenga and Ms Paterson have been in an ongoing, albeit on again, off again relationship since the birth of Tama, and are more likely than not to continue it once Mr Matenga is released from prison this month.
[96] The focus of this concern is highlighted in a number of known contacts between Ms Paterson and Mr Matenga which MoCOT says indicates that Ms Paterson prioritises Mr Matenga’s needs and hers to see him over and above the need to protect and keep Tama safe.
(Citations omitted and emphasis added)
[31] Ms Cook, for Ms Paterson, acknowledges that Mr Matenga poses a risk to Tama. However, she says there is no evidence to suggest that Ms Paterson has harmed Tama. On the contrary, she is capable of physically caring for him.
[32] As for the contact between Ms Paterson and Mr Matenga, Ms Cook admits that the following interactions took place:
(a)Contact visits arranged by Oranga Tamariki in May 2015 for Mr Matenga to see Tama.
(b)Physical contact between Ms Paterson and Mr Matenga on 9, 11 and 16 September 2015. This was after Tama had been uplifted from her care. Ms Cook seems to suggest that Ms Paterson made contact with Mr Matenga so as to encourage him to hand himself in to police.
(c)Physical contact between Ms Paterson and Mr Matenga on 29 November 2015 in relation to an alleged kidnapping of a third party.
(d)Physical contact between Ms Paterson and Mr Matenga on 18 and 19 December 2016, which entailed the opening of Christmas presents. Mr Matenga also acted violently towards Ms Paterson on this occasion.
(e)Physical contact between Ms Paterson and Mr Matenga on 28 March and 15 April 2017. As a result of the latter, Mr Matenga was imprisoned.
(f)Phone contact between Ms Paterson and Mr Matenga in July 2017 while he was in prison.
[33] However, Ms Cook says that the above interactions should be seen in context, specifically:
(a)Much of the contact was unwanted by Ms Paterson and occurred while Tama was not in her care.
(b)Some of the contact occurred as a result of Tama being uplifted and Ms Paterson being told that he would not be returned until after Mr Matenga had returned to police custody.
(c)Some of the contact took place when Oranga Tamariki’s position was that Tama would not be returned to Ms Paterson.
[34] Oranga Tamariki accepted that there is no evidence of any contact between Ms Paterson and Mr Matenga since July 2017.
[35] Ms Paterson’s position, according to Ms Cook, is that she has wanted no further contact with Mr Matenga since she became aware that he threatened to kill Tama. The evidence of the psychologist Ms Clough during the hearing is said to support this:
Q.And this connection with Mr Matenga is identified as a risk in your first report as well?
A. Yes.
Q.And you found it was imperative that Ms Paterson no longer had that connection?
A. Yes.
…
Q. And so despite knowing it is imperative that she maintain that protective stance and the possible consequences of that, the evidence clearly shows that continued. So from the Ministry’s perspective they view Ms Paterson as an ongoing risk from herself as well. That there is an ongoing risk. What are your views on that assessment?
A. From what, in the notes of evidence it is very confusing as I put in my reports, in my second report, both parents stating different things which I said it is up to the Court to make that final assessment as to who’s doing the truth telling. What’s come out further in the notes of evidence does raise concerns for me, Ma’am… and I think it’s really reflective of the fact of how, if I can talk about Ms Paterson for a minute, Ma’am. She has had a life of being battered. She’s well trained in victim, being a victim. Her primary caregiver, a solo mum, raised her and battered her till she was 13 years of age. She’s had one previous violent relationship but it’s important to note that she left that man when he hit her son, Harry, at two years of age. She then went into a relationship with Mr Matenga and it was violent, like most women will put up with violence until a child is hurt in some way…
And that’s the theme which I think’s important to note. The other dramas have occurred without Tama being in his mother’s care and I, when I was interviewing Mum, when interviewing Ms Paterson and I was talking about the threats that Mr Matenga allegedly made to kill Tama, Ms Paterson was very distressed. Said she’d read that and she was very congruent and she said, “I thought that’s it. He’s done it now. He’s not” – and that is, and at that time she hadn’t had contact with, as far as I know, for, well he was in prison in Christchurch, hadn’t had contact with him. So for me, looking at her history Ms Paterson has this need, or had this need, to, a belief that a lot of women who’ve been battered have, “He’s only this way because I’m not good enough, because I haven’t looked after him properly. If only I was better,” that sort of thing. And I think that only really stops for a woman when she’s got some good therapy, which she’s having at the moment with a very skilled domestic violence counsellor in Hamilton, and when they think their child’s being threatened…
[36]Later in the hearing, Ms Clough also said:
Q. So our period of time so far is since July last year, there has been no contact between the parents and that was those phone calls from the prison last year. Mr Matenga has been in Christchurch, he’s been imprisoned for a lot of that time. Has there been sufficient time to determine whether that is still a risk for Tama.
A. Are you referring to the fact that they haven’t had contact?
Q. Because that’s all the time we’ve got left.
A. Yes, so what are we now? We’re six –
Q. We’re 10/11 months.
A. Ten/11 months with no contact.
Q.And there are those barriers I’ve referred to; South Island, Prison, et cetera.
A. Geographic and imprisonment.
Q. Yes.
A. Was there any chance of phone calls in that time?
Q. The evidence has shown that Ms Paterson’s number has been deleted from – although, the evidence also says that he wasn’t using her phone number.
A. Right, okay. It’s hard, Ma’am, given the degree of enmeshment there was but I think that yes, there is enough time given how Ms Paterson has been and how she is now. I think she’s made quite a big transition in herself and, I mean, it’s not up to me, it’s up to the Court but you’ve asked me that question, has there been enough time, I think there’s been more than enough time for Tama, yeah.
Q. And that would also fit in with your assessment that women who have been abused and battered will put up with so much for themselves but once the child is threatened –
A. Yes.
Q. - there’s a change and that’s when that change came.
A. That’s correct.
[37] Overall, Ms Cook says that the contact between Ms Paterson and Mr Matenga is historical. However, having regard to the bulk of the evidence, it is difficult to see how Judge Parsons fell into error in reaching the view that she did on this topic. There was sufficient evidence for the judge to conclude that Mr Matenga and Ms Paterson continued to share a temperamental relationship after the birth of Tama and moreover, that they attempted to conceal this from the relevant authorities.
[38] Ms Cook does not appear to dispute any of the factual findings made by Judge Parsons or her assessment of the evidence. In this way, no overt error is alleged. Rather, the thrust of Ms Cook’s submissions seems to be that Mr Matenga and Ms Paterson’s relationship has now come to an end. The risk identified by Judge Parsons is therefore no longer material.
[39] However, Ms Cook has not offered any evidence that supports the alleged termination of the relationship between Ms Paterson and Mr Matenga other than bare assertion. It is also noteworthy that for much of the time during which Ms Paterson claims to have severed ties with Mr Matenga, he has been in prison.
[40] A further problem with Ms Cook’s submission is that Judge Parsons took account of and rejected Ms Paterson’s assertions that contact between her and
Mr Matenga had ceased. Whether the Judge treated the assertions as credible or not and whether she placed any weight on those assertions were matters for her to decide.
[41] The findings the Judge reached on the topic of contact between Ms Paterson and Mr Matenga were open to her on the evidence. As the Judge at first instance she saw and heard the disputed evidence, which was the subject of cross-examination. In those circumstances Judge Parsons had a better opportunity than is available to this Court to form a view on whose evidence is to be believed. I acknowledge that an appellate court is required on general appeal to make its own assessment of fact.11 However, this requirement is to be balanced against what was described in Austin Nichols as the customary caution appropriate when seeing the witnesses provides an advantage.12 The need for such caution when facts found by the trial judge turn on assessments of credibility is illustrated by Rae v International Insurance Brokers (Nelson Marlborough) Ltd13 and Rangatira Ltd v Commissioner of Inland Revenue.14
[42] Ms Paterson also submits that Judge Parsons erred in concluding that, in addition to the risks posed by Mr Matenga, Ms Paterson herself posed risks to Tama such that it was not in his best interests to be placed in her care. Ms Paterson has supplied arguments to counter those risks. However, I do not see such risks as having adversely influenced the Judge’s decision. There is little point disputing the correctness of matters that simply did not play a part in the Judge’s ultimate decision- making process.
[43] Whether Ms Paterson will seek further contact with Mr Matenga in the future is yet to be known. At the time of the hearing in the Family Court she had no contact with him since 2017, and since his threat to kill Tama she maintains she wants nothing more to do with Mr Matenga.15 Should she maintain this position over time she should then be in a better position to satisfy a Court that she no longer poses a risk to the interests and wellbeing of Tama.
11 Austin Nichols above n 4 at [16].
12 See above at [13]
13 Rae v International Insurance Brokers (Nelson Marlborough) Ltd (1996) 5 NZBLC 103, 945.
14 Rangatira Ltd v Commissioner of Inland Revenue [1997] 1 NZLR 129 (PC).
15 In 2017 and part way through 2018 he was in prison.
[44] Also over time Ms Paterson may develop better contact with Tama, which will strengthen her ties with him and in that way help to provide a basis in the future for her obtaining custody of him. The present extent to which Ms Paterson should have access to Tama remains to be determined in the Family Court. The application Ms Paterson has made under s 121 of the OTA for increased access has been adjourned for a period of six months.
[45] In recent times Ms Paterson has only had four supervised access visits with Tama a year. Tama is now three years old. He has been in Ms A’s day to day care for most of his life. Those facts, considered alongside the nature of his recent limited contact with his mother and him doing well in Ms A’s care makes it hard to see how a Court would contemplate an alteration in the present custodial arrangements. This may change if Tama has the opportunity to spend more time with Ms Paterson, and therefore develop a closer relationship than is possible under the current limited supervised access visits. I acknowledge that the expert evidence before the Family Court recognised that Tama is securely attached to Ms Paterson and that Judge Parsons accepted this.16 However, such positive descriptions of Ms Paterson’s relationship with Tama have to be viewed within the factual matrix of the limited contact with him that she has so far enjoyed.
[46] Given Ms Paterson’s acknowledgement that Mr Matenga poses a threat to Tama (which she makes through her assertion she no longer wants contact with Mr Matenga since his threat to kill Tama) she should focus on truly allaying the Family Court’s concerns about whether she will try to maintain a relationship with Mr Matenga in the future, as well as extending the opportunity she has for access to Tama.
[47] Under the present circumstances I cannot be satisfied that it is in Tama’s best interests and welfare to be placed in the custody of Ms Paterson. Accordingly, I see no basis for interfering with the decision of the Judge to dismiss Ms Paterson’s application to set aside the order under s 101 of the OTA. No-one disputed that this decision precluded any consideration of a parenting order under s 48 of the COCA.
16 Above n 1 at [106].
[48] It follows that the appeal against the s 101 order and the refusal to make a s 48 order fails.
Appeal against restraining order
[49] Judge Parsons made restraining orders against Mr Matenga and Ms Paterson. The Judge was satisfied that Mr Matenga had made threats against and posed a risk of harm to Tama, social workers of Oranga Tamariki and Ms A. There is no appeal against the order made against Mr Matenga and therefore those findings must stand.
[50] Regarding the order made against Ms Paterson the Judge found that the risks Ms Paterson posed were in part connected to the risks that Mr Matenga presented given her ongoing association with him.17 The Judge also found that Ms Paterson posed a separate risk given she had made threats to social workers previously and had a history of acting aggressively. In this regard, the Judge referred to Ms Paterson having convictions for violence related offending. Those matters coupled with (a) her ongoing association with Mr Matenga; and (b) a confrontation between a social worker and Ms Paterson and a member of Families 4 Justice outside the courtroom on day four of the hearing led the Judge to conclude that a restraining order should be made against Ms Paterson as well.
Analysis
[51] The existence of an order under s 67 of the OTA is a precondition to the making of a restraining order under s 87 of the OTA. That condition is satisfied here.
[52] Section 87 of the OTA sets out the prohibitions that a restraining order imposes. They are:
(1) Where the court makes a declaration under section 67 in relation to a child or young person, it may, on or at any time after making that declaration, make an order restraining any person named in the order from doing all or any of the following things:
(a)residing with the child or young person:
17 Above n 1 at [178].
(b)using or threatening violence or causing or threatening to cause physical harm to the child or young person:
(c)molesting the child or young person by watching or besetting the child’s or young person’s place of residence, work, or education, or by following or waylaying the child or young person in any public place within the meaning of section 2 of the Summary Offences Act 1981, or by contacting the child or young person in any way:
(d)molesting any person with whom the child or young person is residing by watching or besetting that person’s place of residence, work, or education, or by following or waylaying that person in any public place within the meaning of section 2 of the Summary Offences Act 1981, or by contacting that person in any way.
(2) Subject to any rules of court empowering the court to make an order under this section on an ex parte application, the court shall not make an order under this section restraining the conduct of any person unless that person has been informed by the court of the proposal to make the order and has been given an opportunity to make representations to the court.
[53] Section 87 does not identify the circumstances that warrant making a restraining order. However, the section does clearly identify a range of prohibited behaviours which such an order will preclude. Further, the section is not worded in a way that suggests a general discretionary power to make such orders. This leads me to conclude that before a Court can make a s 87 order it must have a reasonable and justified expectation that one or more of the prohibited behaviours set out in s 87 may occur.
[54] Apart from the serious restrictions that these orders impose, s 89 of the OTA makes it an offence to contravene a restraining order, which may result in a sentence of imprisonment. These factors strongly suggest that restraining orders require a proper factual foundation to support the need for their making.
[55] At the hearing, I went through the prohibited behaviours in s 87 and specifically asked Oranga Tamariki to identify in relation to Ms Paterson which of the prohibited behaviours in s 87 was engaged here, and what evidence did they rely upon to support that view. Counsel for Oranga Tamariki could not identify one such behaviour as being applicable here.
[56] In written submissions filed prior to the hearing Oranga Tamariki relied on Judge Parsons’ reasoning for making the restraining order.18
[57] Judge Parsons’ reasoning as to why a restraining order should be made against Ms Paterson is brief. I shall deal with each of the Judge’s reasons in turn.
[58]I consider the Judge’s discussion of the relevant legal principles at [173] to
[174] to be correct. At [175] to [177] the Judge sets out why she thinks a restraining order against Mr Matenga is warranted. There is no challenge to this aspect of her reasoning.
[59] Then at [178] the Judge found that the risks associated with Ms Paterson are in part connected to the risks posed by Mr Matenga through her ongoing association with him. How Ms Paterson’s ongoing association with Mr Matenga might suggest that she also poses a risk in terms of the factors set out at s 87 of the Oranga Tamariki Act is not stated. The connection is not obvious, nor is it implicitly discernible.
[60] There is plenty of evidence to establish that Mr Matenga is an angry and bitter man given his own negative experiences through being in the care of the State when a young person. He also has a criminal history of violence. He considers that Tama should not be in the care of Oranga Tamariki. This has led him to make threats against Oranga Tamariki social workers. At one time in a recorded telephone discussion with Ms Paterson, Mr Matenga threatened to kill Tama.19 Those negative factors, especially the last, support making a restraining order against him, but I do not see how those factors can also support making such an order against Ms Paterson, simply through her association with Mr Matenga. There is no evidence to suggest that Ms Paterson has engaged in or is likely to aid Mr Matenga in carrying out any of the risk behaviours in s 87(1).
[61] At [179] Judge Parsons referred to independent evidence that Ms Paterson had made threats against social workers and has a history of reacting aggressively. Also mentioned were her convictions for violence and related offending. However, those
18 In particular Oranga Tamariki relies on [171], [173], [174], [178] and [179] of the judgment.
19 This conversation was recorded because at the time Mr Matenga was a sentenced prisoner making an outside telephone call.
matters do not directly engage s 87(1)(a) to (c), all of which relate to Tama. There is no evidence she has been violent towards him. Section 87(1)(d) is wider as it is focused on the risk of molesting any person with whom the child resides, which in this case would be Ms A. However, there is no evidence that Ms Paterson has ever acted negatively towards Ms A or made threats towards her. Ms Paterson has come into possession of Ms A’s address and identifying particulars, but this was a result of an error on the part of Oranga Tamariki. Ms Paterson has not attempted to misuse this information by contacting either Tama or Ms A.
[62] Ms Paterson has six criminal convictions. Four were entered in 2011 following offending in 2008. Accordingly, they have nothing to do with Tama. These convictions involved some violence and she was sentenced to a total of one year and nine months’ imprisonment for them.20 However, they can now be viewed as historical offending. The other two offences occurred more recently. In 2015 Ms Paterson was convicted of assault with intent to injure for which she received a sentence of 60 hours community work and in 2016 she was convicted of shop lifting. None of the current offences have any connection with Tama or Ms A. Whilst the violent offending in 2015 is of concern, particularly given earlier offending of that type in 2008, the sentence imposed reflects the seriousness of this offending. Looked at overall the criminal history is not indicative of Ms Paterson posing a risk requiring restraint under s 87.
[63] Then there is the incident involving a social worker being accosted outside the Family Courtroom during the hearing. However, this incident involved a support person of Ms Paterson. The support person is a member or former member of the Families 4 Justice group. That group has an adverse view of the Family Court and State agencies like Oranga Tamariki. The support person had his/her own issues with those entities. Ms Paterson cannot be held responsible for the conduct of the support person. There is no evidence she encouraged or assisted in this conduct.
[64] Judge Parsons concluded that in combination the concerns she identified warranted the making of a s 87 order. I disagree. Looked at individually none of the
20 The offences were arson, common assault, inuring with intent to injure and attempting to pervert the course of justice.
concerns the Judge identified engages any of the criteria of s 87(1). Nor does their combined weight suggest a different outcome. In short, there is no proper factual foundation to satisfy the criteria in s 87(1).
It follows that Ms Paterson’s appeal against the making of a s 87 order is allowed, and that order is set aside.
Result
[65] The appeal against Judge Parsons’ refusal to set aside the custody order under s 101 of the OTA and the impact of this refusal on Ms Paterson’s application for a parenting order under s 48 of the COCA is dismissed.
[66] The appeal against the restraining orders made under s 87 of the OTA is allowed; those orders are set aside
[67] The parties have leave to file memoranda on costs should they be unable to reach agreement on costs.
Duffy J
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