SDE v SM
[2019] NZHC 283
•27 February 2019
NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION,
PLEASE SEE judgments/
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2018-404-284
[2019] NZHC 283
IN THE MATTER of an appeal under s 143 Care of Children Act 2004 BETWEEN
SDE
Appellant
AND
SM
First Respondent
CHIEF EXECUTIVE MINISTRY FOR CHILDREN, ORANGA TAMARIKI
Second Respondent
Hearing: 2 August 2018 Appearances:
Appellant in person
J C Catran and M G A Madden for Second Respondent
Judgment:
27 February 2019
JUDGMENT OF PETERS J
This judgment was delivered by Justice Peters on 27 February 2019 at 4.30 pm pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date: ...................................
SDE v SM [2019] NZHC 283 [27 February 2019]
Introduction
[1] Mr SDE appeals against a decision of Judge Pidwell given on 19 January 2018 in the Family Court at Waitakere.1 By her decision, Judge Pidwell discharged a guardianship order (“order”) in place in respect of Mr SDE’s daughter (“A”).2
[2] Mr SDE appeals on the grounds that the discharge of the order was premature and contrary to A’s welfare and best interests (see s 4 Care of Children Act 2004 (“COCA”)) and to the principle in s 5(e) COCA, namely that a child should continue to have a relationship with both parents, and that a child’s relationship with his or her family group should be preserved and strengthened. Mr SDE also refers to safety issues arising with A, as a result of events at a New Year’s Eve party A is said to have held on 31 December 2017, prior to the Judge’s decision and of which the Judge was seemingly unaware.
[3] Prior to the hearing of this appeal, both A and the first respondent, her mother Ms SM, advised by memoranda that they opposed the appeal but did not propose to appear, whether in person or by counsel, and would abide the decision of the Court.
[4] Shortly before the hearing, counsel for the second respondent (“Ministry”) and Mr SDE sought an adjournment, as Mr SDE had just received a great deal of information that he had requested from the Family Court and he wished to have time to consider that information before making submissions. As it turned out, we commenced the hearing on the due date but ultimately I granted the adjournment Mr SDE sought.
[5] I record that much of the material Mr SDE has submitted addresses his perspective on other Court proceedings, including what he considers serious errors and omissions on the part of those concerned. I am required, however, to confine this decision to the correctness or otherwise of the Judge’s decision to discharge the order. That is the sole issue before me.
1 [SDE] v [SM] [2018] NZFC 323.
2 Care of Children Act 2004, ss 31 and 33.
[6] There are several other preliminary matters to mention, being that: all concerned preferred that I determine the matter on the papers; in the course of these events I received and declined two requests from Mr SDE that I recuse myself; I regret the delay that has occurred in issuing this decision; and I have confined this decision to A. M, referred to below, lives with Mr SDE, perfectly contentedly by all accounts.
[7] The appeal proceeds as a general appeal. I am required to consider the merits of the case afresh. It is for me to assess the weight that I should give to the decision under appeal. The appellant is entitled to judgment in accordance with my opinion.3
Background
June 2016 decision
[8] Mr SDE and Ms SM, who separated in 2007, have two children, A and M. Judge Pidwell made the now discharged order in respect of both on 20 June 2016. She did so at the conclusion of a comprehensive, reserved judgment, following a seven or eight-day hearing.
[9] There were several applications before the Court at the hearing but it was only at a relatively late stage that Child Youth and Family Services (“CYFS”), as it then was, applied for the order. The Judge described such an order as follows:
[118] The effect of a s 31 order placing the children under the guardianship of the Court is that the rights of the parents or guardians are supplanted by the Court for the duration of the order. The Court becomes the child’s guardian. The parents’ rights remain, but they are subject to the overriding authority of the Court. The Court cannot of itself exercise parental control in terms of day to day care and decision making so it appoints an agent for those purposes. The Court’s powers are very wide and the making of such an order is a matter of last resort, to be exercised with caution and only when the interests of the child cannot be promoted by any other means.
[10] The Judge reviewed the factual background, including the many proceedings that had been before the Family Court since February 2014; the views of each parent and of the children as provided by their counsel, Mr Jefferson QC; and the expert opinion of Dr S Calvert, who the Court had appointed as its expert and who had
3 Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [31] and [32].
prepared psychological reports regarding the children. Having considered all of this material, the Judge said:
[164] ... However, due to the failures of the Ministry to date, and also the lack of faith [Mr SDE] (justifiably) has in their ability to protect the children from ongoing exposure to harm, neglect and impairment, I consider that the only option for these children is to place them under the guardianship of the Court. That is the highest level of control over children that the law can offer. These circumstances are exceptional. The high threshold for invoking the warship jurisdiction has been met. The best interests of the children require them to be physically safe and psychologically secure. Both need to be supported so they can achieve to their full potential. For [A], the Court only has jurisdiction over her care for a limited time. Time is of the essence for her. She is in a crucial stage of her development, especially her educational development. I do not consider that her needs can be met by her mother at this time. Her father has expressed a willingness to tackle the difficult parenting times ahead and an openness to educate himself and obtain help and support. [Ms SM] still fails to see the problem.
[11] The “ongoing exposure to harm, neglect and impairment” to which the Judge referred was Ms SM’s association with, if not marriage to, a Mr L who was before the Court on serious drug charges. The Judge was extremely concerned by A and M’s exposure to Mr L and his associates, and Ms SM’s failure to ensure that her children were in a safe environment.
[12] The Judge made an order placing A and M under the guardianship of the Court; suspended the parents’ guardianship rights to the extent required to give effect to her judgment; appointed CYFS as the Court’s agent and, amongst other things, directed that a social worker:
(a)Urgently investigate placement options for A. This was to include a full parenting assessment of Mr SDE with a view to placing A outside of Ms SM’s care.
(b)Ensure A’s attendance at counselling and therapy with her psychologist, with Mr SDE to be engaged at the psychologist’s discretion.
(c)Ensure that A attended school and that the school notified CYFS if A failed to do so.
(d)Ensure at least weekly contact between Mr SDE and M on the one hand, and A on the other, and to facilitate more contact between them with a view to placing A with Mr SDE in the absence of an alternative placement within six weeks.
April 2017 decision
[13] The order came before the Judge again for review in October 2016 and March 2017, following which the Judge issued her second reserved judgment, dated 13 April 2017. By this time, Ms SM had applied to discharge the order.
[14] At the time of this judgment, CYFS had not carried out the parenting assessment that the Judge had previously ordered. A continued to live with her mother and wished to continue to do so. The Judge was satisfied, however, that Ms SM had severed her ties with Mr L and his associates and, moreover, the Judge did not consider she had power under COCA to interfere with A’s choice of living arrangements. Section 6 COCA requires the Court to take account of the child’s views and, in addition, A was almost 16 years old. A Court may not direct a child of more than 16 years where they are to live unless there are “exceptional circumstances” and the Judge was not persuaded the case was of that nature.4
[15] As to A’s contact with Mr SDE, the advice to the Judge was that it was not in A’s best interests to continue to press this. Mr Jefferson submitted to the Judge that A’s “relationship with Mr SDE continues to be problematic”, and the Judge summarised a further report from Dr Calvert as follows:
[40] Her opinion is that [A’s] views cannot be relied on fully as she is in the midst of a complicated situation of estrangement and confusion. She considers [A’s] relationship with her father is a work in progress, but was firm in her expert view that [A] should not be forced to have contact with her father at this juncture. She maintains that [A] is exhausted and traumatised by the repeated attempts at contact. She considers that [Mr SDE] and the Court need to “back away” as it is simply too difficult for [A] to have a relationship with her father at the moment without consistent help in the form of high intensity therapy. She acknowledged that there was no funding for the therapy that is required to occur. Dr Calvert’s position was that [A] had tried to have a relationship with her father, but without highly skilled intervention which the system is not able to provide, [A] should not be forced to try again. In her
4 Care of Children Act 2004, s 34.
view, there has been a systematic failure which has adversely affected [A’s] relationship with her father.
[16] A’s psychologist thought A’s overall wellbeing had improved as she was engaged in school and socialising with her peers, but that A was anxious, “exhausted by the recurring attempts to resurrect” her relationship with Mr SDE, and that A needed to be “left alone” if she was to succeed at school and socially. This advice was consistent with the expert views of Dr Calvert. I record that Mr SDE was highly critical of the psychologist and informed me that he had made a complaint about her to her governing body. That is correct. The governing body upheld the complaint in one respect but otherwise did not consider the complaint warranted further investigation.
[17] Ultimately, the Judge continued the order in respect of A, appointed Oranga Tamariki as the Court’s agent in CYFS’ place, and directed Oranga Tamariki to, amongst other things: ensure that A continued to attend school; that Mr L and his family or associates had no contact with A; conduct checks on A’s home; and facilitate contact with Mr SDE on terms and conditions of A’s choosing and only at her instigation. The Judge said the focus must be A’s education and:
[56] I consider the guardianship order needs to remain in place to ensure that [A] completes school and to ensure that [Ms SM] (with whom [A] will inevitably remain living) does not engage with [Ms SM’s partner], his parents or any associates, and keeps the home environment safe. The guardianship order can also provide an avenue for contact with her father. However I consider the Ministry’s role needs to be reduced significantly to alleviate any pressure on [A] so she can simply get on with completing her schooling without consistently interacting with professionals.
[57] I accept the recommendations of Dr Calvert and [A’s psychologist] that [A] should not be forced into ongoing scenarios in an attempt to resurrect her relationship with her father. I consider that issue needs to be placed on the backburner until she completes her schooling. She will continue to develop more maturity and insight. I do not consider that forcing her to make further attempts to engage with her father to be in her best interest at this time. It is an unfortunate conclusion, but the clock cannot be turned back at this juncture. I am confident that [A] will make attempts to engage with [Mr SDE] on her own terms and in her own time. [Mr SDE] needs to receive all such attempts with an open mind and heart and adhere to [A’s] terms and conditions if he wants to have any form of relationship with her.
Decision under appeal
[18] At the hearing before the Judge in January 2018, counsel for Oranga Tamariki submitted that the time had come for the Judge to discharge the order as A was “more mature, is settled at school and has recently initiated contact with Mr SDE of her own volition and that there was little [the Ministry] could do to assist A at this time of her life”.
[19] A, then nearly 17 and now nearly 18, also wished the order to be discharged. At a meeting with the Judge, A said she was “positive” about her contact with Mr SDE, able to communicate with him, had no concerns for her safety, and did not wish to have more counselling. Ms SM also supported a discharge.
[20] In opposing the discharge, Mr SDE submitted that A remained at risk (I assume from her mother’s earlier associates and/or lifestyle) and was anxious and required counselling. He wished the Court to remain as A’s guardian until she completed therapy for “reconnection” at the Ministry’s cost for which he considered up to
$100,000 ought to be allocated. Mr SDE also proposed that A cease living with Ms SM at her then address (which Mr SDE described as a massage parlour) and, ideally, that A should live with him.
[21] The Judge’s reasons for discharging the order were, first, that A was nearly 17 years old, presented as mature and insightful, had no concerns for her current safety, had “opened the door to engaging with her father again” and was “finding her own way to re-establish the relationship with him ...”. Secondly, there was no evidence before the Court that A’s home environment was unsafe, and A was continuing with her education. The Judge was satisfied that the grounds that had led her to continue the Court’s guardianship of A had abated and that it was now in A’s best interests to discharge the order, given her age, maturity and “clear” views.
Appeal
[22]I referred above to Mr SDE’s grounds of appeal. These are:
(a)the discharge of the order was contrary to A’s best interests, which must be the paramount consideration;5 and
(b)the discharge was inconsistent with s 5(e) COCA.
[23] Mr SDE seeks that the order be reinstated and remain until such time as the “reconnection” therapy referred to above is commenced and completed; a shared care arrangement agreed in respect of A; and contact recommenced between A on the one hand, and Mr SDE and M on the other.6
[24] Counsel for the Ministry submits the appeal should be dismissed. Counsel submits that no purpose would be served by continuing the order for the reasons the Judge gave. Counsel also submitted that there was no “fresh or cogent” evidence that A’s safety was at risk, and that A should be allowed to initiate contact with Mr SDE as and when she wished.
[25] In his memorandum on the appeal, Mr Jefferson advised that A’s views were that no useful purpose would be served by reinstating the order, that she did not consider there was any benefit to her in doing so and did not consider she required support from the Court or Oranga Tamariki.
Discussion
[26] As Mr SDE submitted, the welfare and best interests of the child in his or her particular circumstances is the “first or paramount” consideration in a case (and on an appeal) such as this.7
5 Care of Children Act 2004, s 4.
6 Mr SDE also asked that I take various steps regarding Mr Jefferson, including reporting him to the New Zealand Law Society. I am not aware of any failure or omission on Mr Jefferson’s part and so say no more about that aspect of the relief.
7 Section 4(1).
[27] Mr SDE also submitted, correctly, that in assessing the welfare and best interests of the child in his or her particular circumstances, the Court must take into account the six principles in s 5. Mr SDE relied particularly on s 5(e), which provides:
5 Principles relating to child’s welfare and best interests
The principles relating to a child’s welfare and best interests are that—
...
(e)a child should continue to have a relationship with both of his or her parents, and that a child’s relationship with his or her family group, whānau, hapū, or iwi should be preserved and strengthened:
...
[28] Mr SDE submits that, given s 5(e), the Judge ought not to have discharged the order but rather made the directions he sought as being more likely to achieve the principle in s 5(e). It is important to note, however, that the principles in s 5 are to be taken into account, but they are not determinative. Also, s 5(e) states, as do others in s 5, that the child “should” continue a relationship. In Kacem v Bashir, the majority of the Supreme Court said that “should” “signals” a “desirable objective, the fulfilment of which, and by what method, will depend on the presence of other desirable objectives and the facts of individual cases”.8
[29] Section 6 is also relevant. It provides that the Court must allow a child to express his or her views on matters affecting him or her and take those views into account.9 The child’s views are also not determinative. The weight the Court gives them will depend on matters such as the child’s age, maturity, the reasons he or she might offer and the consistency or lack thereof in those views over time. However, it appears the Court will seldom seek to make an order that conflicts with the views of a child who is older than 14 or 15 years. There is a very practical difficulty in insisting a child of that age do something which they do not wish to do and, of course, it is
8 Kacem v Bashir, above n 3, at [22].
9 Section 6.
likely that a child of that age will have formed views as to what is best for them at the relevant time, and why.10
[30] Coming back to the specifics of this case, and taking all these matters into account, I am satisfied the Judge was correct to discharge the order. That is because, first, A was opposed to its continuation. A perceived that she received no benefit from the Court’s guardianship. She herself did not wish to have more counselling, and she wished to be in control of her contact with her father. This latter point – contact at A’s instigation – was no more or less than the situation that prevailed after the Judge’s decision some nine months earlier in April 2017.
[31] Secondly, the Judge was required to give considerable weight to A’s views. There was no doubt or uncertainty as to what A sought, and she impressed the Judge as mature and insightful.
[32] Thirdly, there was no prospect whatsoever of the Judge making the orders or giving the directions Mr SDE sought, and likewise on this appeal. The Judge altered the contact arrangements in April 2017, on expert advice that any element of compulsion would be likely to be contrary to, rather than in, A’s welfare and best interests. Nothing had changed in that respect.
[33] Fourthly, I must address Mr SDE’s submission as to A’s safety and his evidence as to the “party” incident. I acknowledge the Crown’s point that such evidence may not be “fresh”, in that it is possible the evidence could have been put before the Judge in January 2018. However, I would not decline to admit the evidence on this ground, as I do not know when Mr SDE became aware of what had occurred.
[34] The gist of Mr SDE’s evidence is that A had an unsupervised party on 31 December 2017, people arrived with alcohol, A had to call the police, and that A had shown Mr SDE videos of two assaults that occurred, one of which was brutal. Mr SDE considered that the lack of supervision reflected poorly on Ms SM and that the entire incident was evidence of A’s lack of personal safety. I do not know A’s or
See generally the commentary on the Care of Children Act 2004, s 6 in Marina Nicola (ed)
Brookers Family Law (looseleaf ed, Thomson Reuters), particularly from [6.37] onwards.
anyone else’s account of the events but, taking Mr SDE’s account at face value, this incident is insufficient to warrant the Court’s retention or reinstatement of the order. It does not on its own raise a sufficiently serious issue as to A’s safety or wellbeing.
Conclusion
[35] I dismiss this appeal. It is unnecessary to make any order as to costs as none of the parties have sought such an order.
Peters J
Solicitors: Crown Law Office, Wellington
Copy for: Appellant
S R Jefferson QC, Auckland A J Cooke, Manukau
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