Smith v Smith
[2024] NZHC 3553
•26 November 2024
NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004 AND SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980, THE PARTIES IN THIS DECISION HAVE BEEN ANONYMISED. IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2024-409-229
[2024] NZHC 3553
IN THE MATTER of an appeal against a decision of the Family Court BETWEEN
CONNOR SMITH
Appellant
AND
ROSE SMITH
Respondent
Hearing: 5 November 2024 Counsel:
G P Tyrrell and J M Neville for Appellant J L S Shaw for Respondent
R M Williams for Chief Executive of Oranga Tamariki T D Holton – lawyer for child
Judgment:
26 November 2024
JUDGMENT OF RADICH J
[1] In a Family Court decision, a parenting order was made giving the day-to-day care of Violet Smith, who is 12 years old, to her mother, Rose Smith.1 Under the orders made, the extent of the contact that Violet’s father, Connor Smith, is permitted to have with her is limited to providing Christmas and birthday cards and gifts.
1 [Smith] v [Smith] [2024] NZFC 4571 (Judge Hunt) [Family Court decision]. The names of the parties in this decision have been anonymised.
SMITH v SMITH [2024] NZHC 3553 [26 November 2024]
[2] In this appeal, Mr Smith says that the parenting orders were made in error and should be discharged. He says that, in addition, the Judge erred in declining his applications for an order placing Violet under the guardianship of the Court under s 31 of the Care of Children Act 2004 or for a care or protection order under pt 2 of the Oranga Tamariki Act 1989.
[3] In this decision, I consider whether, in making those decisions, the Judge erred as has been alleged.
The essential facts2
[4] Violet’s parents separated in April 2019, when she was seven years old. In the same month, Ms Smith applied for parenting orders and for a protection order. While, ultimately, the protection order application was discontinued, allegations by Ms Smith of family violence by Mr Smith towards her, her son John (to a previous relationship), and to Violet continued. They included allegations that Mr Smith had sexually abused Violet.3
[5] Following the separation, Violet remained in her mother’s care. Contact visits with Mr Smith were challenging because of resistance to the visits displayed by Violet from the outset.
[6] In an October 2019 decision of Judge Hunt, it was concluded that there was no foundation for a finding of sexual abuse or of sexually inappropriate behaviour on the part of Mr Smith and that there were no grounds for a protective response from the Court as a result.4 Interim orders for supervised contact were made at that time and were continued through further supervised contact orders in September 2020. Mr Smith’s visits with Violet were supervised over the next four years or so.
2 The background to this proceedings is summarised in detail in the Family Court decision, above n 1, at [4]–[21].
3 As observed by Judge McMeeken in a 4 September 2019 minute in the Family Court.
4 [Smith] v [Smith] 2019 NZFC 8682 at [58].
[7] An evidential video interview was conducted with Violet in November 2021 in which Violet disclosed sexual touching and abuse by Mr Smith post-2019. Mr Smith continued to deny the allegations. Police decided not to prosecute Mr Smith.
[8] In January 2023, an application was made by Mr Smith for Violet to be placed under the guardianship of the Family Court for the purpose of determining alternative care arrangements5 and for the provision of further counselling for Violet to address her relationship with him. He sought, also, care or protection orders under pt 2 of the Oranga Tamariki Act. His concern – based upon information including the terms of a s 133 psychological report and a s 132 social work report – was that Violet’s views on him were being impacted negatively by the views and behaviour of her mother and that this, in turn, was harming Violet’s relationship with him. Those concerns remain for Mr Smith. He is of the view that Violet is suffering emotional and psychological harm from what she is hearing from Ms Smith.
Family Court decision
[9] Judge Hunt’s reasons are considered further on in this decision, when considering the various applications that were before him. But, by way of summary for present purposes, the Judge’s findings included the following:
(a)He was of the view that Ms Smith has not accepted the findings made in the October 2019 decision, including a finding that there was no foundation for a finding of sexually inappropriate behaviour on Mr Smith’s part. As a result, those issues would be “unlikely to be resolved by any court decision”, given the parties’ “opposing views and profound mistrust of each other”.6
(b)He concluded that continued court involvement or management carries risks for Violet’s wellbeing. He was of the view that the solutions proposed were not sufficiently detailed to enable any confidence of positive outcomes of a type that might justify taking the risks. That was
5 Under s 31 of the Care of Children Act 2004.
6 Family Court decision, above n 1, at [22].
particularly so in light of the history of attempted solutions and court involvement, which had resulted in Violet demonstrating concerning signs of trauma.7
[10]The Judge made the following decisions:
(a)Violet would remain in the day-to-day care of her mother, Ms Smith. Removing Violet from her mother’s care, it was found, was not a viable option in the short or long term given Violet’s extreme reactions to any notion of contact with Mr Smith. Placing Violet with an approved caregiver would not, it was found, provide a viable solution.
(b)Mr Smith’s contact with Violet would be limited to the provision of a card and presents at Christmas time and for her birthday on strictly prescribed terms about the way in which the gifts will be selected, about the card to accompany the gifts, and about the transfer of gifts to Violet
– which was not to be in person. There may be, the Judge ordered, such other contact as is agreed between the parties on terms in writing.
(c)Mr Smith’s applications for wardship under s 31 of the Care of Children Act and for the appointment of the Chief Executive of Oranga Tamariki as the Court’s agent were declined. The Judge found that the point had been reached where all of the presently available options had been tried and where none had been able to achieve a settled or appropriate outcome. There was, it was found, no plan for what might happen if the orders sought were made and insufficient evidence to enable any confidence that an order under this head would be a helpful course of action to take.
(d)For reasons that overlap to some extent, it was found that no orders would be made under s 68 of the Oranga Tamariki Act to the effect that Violet was a child in need of care or protection. The Judge found that, in circumstances in which an application for a care or protection order
7 See discussion at [26]–[32].
needs to be made by the Chief Executive of Oranga Tamariki (or a constable or any other person only with the leave of the Court), in which there had been no agreed outcomes from a family group conference convened under the Act, and in which there was a lack of clarity about what could be done if orders were made, orders were not appropriate.
Principles
Approach to appeal
[11] An appeal under s 143 of the Care of Children Act, such as this, proceeds by way of rehearing on the basis that the appellant bears the onus of satisfying the Court that it should differ from the Family Court’s decision. This Court is only justified in interfering with that decision if it considers the decision is wrong; in other words, that the Judge erred. If an error is found, this Court will come to its own assessment of the merits of the case afresh. The Court can rely on the Family Court’s reasons in reaching its own conclusions, but the weight to be given to those reasons is a matter for the Court.8
[12] In considering the weight to be given to the decision of the Family Court, relevant factors include whether it had a particular advantage such as relevant expertise or the opportunity to assess the credibility of witnesses, where an assessment of that kind is important.9
Care of Children Act
[13] Section 3 of the Care of Children Act provides that the purpose of the Act is to promote children’s welfare and best interests, and to facilitate their development, by helping to ensure that appropriate arrangements are in place for their guardianship and care and to recognise certain rights of children.
8 Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [31], per Blanchard, Tipping and McGrath JJ.
9 Austin, Nicholls & Co Inc v Stitching Lodestar [2007] NZSC 103, [2008] 2 NZLR 141; and Green v Green [2016] NZCA 486, [2017] 2 NZLR 321 at [30]–[32].
[14] Under s 4, the “welfare and best interests of a child in his or her particular circumstances must be the first and paramount consideration”. To that end, the Court must take into account the principle that decisions affecting a child should be made and implemented within a timeframe that is appropriate to the child’s sense of time.10 And it must take into account the principles in s 5,11 including the principle that a child’s safety must be protected, that a child should continue to have a relationship with both of his or her parents and that a child must be given reasonable opportunities to participate in any decisions affecting them.
[15] Under s 6, a child must be given reasonable opportunities to express views on matters affecting them and those views must be taken into account.
Violet’s welfare and her best interests in her particular circumstances
[16] In s 4 terms, this case must turn upon Violet’s welfare and best interests “in her particular circumstances”. Violet’s particular circumstances are definitive here. There are, as I see it, seven particular circumstances which, when considered, inform the conclusions on the points on appeal.
[17] First, the evidence is clear in showing Violet’s extreme reactions to any notion of contact with her father. Her views have become increasingly entrenched. Violet is clear in her own mind that she is the victim of abuse and has expressed unequivocally her emphatic unwillingness to have any contact with her father. Whether her views are right or wrong, they are subjectively genuine views. It may be that Violet’s views have been influenced by the views of Ms Smith, and no finding of sexual abuse by Mr Smith can be made, but the fact that Violet holds these views is the reality of the situation.
[18] Secondly, there is an intolerable risk of harm to Violet in the event, not only of contact with Mr Smith, but of any further interventions designed to open the door to possible contact. There is clear evidence from the various specialists with whom Violet has worked12 about the psychological harm that is caused to Violet when further
10 Care of Children Act, s 4(2)(a)(i).
11 Section 4(2)(a)(ii).
12 Including support workers, youth workers, social workers, psychologists and contact supervisors.
interventions are attempted. In particular, a psychologist and special report writer involved with Violet identified a real risk of significant self-harm on Violet’s part. In giving evidence in the Family Court, she said:
A. Yes my concern is that if she doesn’t perceive that she is believed, and well, she has perceived that she is not believed, that could include her suicide risk and I do state that with concern, that if she is holds in this constant state of fear, and she perceives that she is not believed and therefore going to be forced, using her language, to see her dad, that the only way out that she knows how to sort this problem is by not being present in terms of killing herself. So she, at, you know, she has, she has reported to me and, that she does have a plan of using a knife to cut her wrists and she does have a plan, of being, and she has attempted to try and obtain medication from [Lucy’s], that was left over from [Lucy’s] cancer treatment. So [Lucy] has responded appropriately and with responsibility, and maintained a safety plan and removed anything that could be, that [Violet] could use. [Violet’s] risk has reduced significantly and she reports no recent suicidal ideation in that state, however if she’s not believed and she’s perceived she’s going to be forced because she believes that she has been sexually abused, then it could increase the risk that she will, for want of a better way of saying it, sort the problem herself. And in my experience and in working the suicide prevention with youth, children and youth, for 10 years, it is a risk.
[19] Thirdly, there are no plausible plans available that might change things from Violet’s perspective. Multiple approaches have been tried. The prospects of positive progress through different interventions is, in any event, so small as to be well-outweighed by the risks.
[20] Fourthly, predictability and stability are crucial for Violet after five years of uncertainty and ongoing attempts at intervention.
[21] Fifthly, the prospect – advanced by Mr Smith – that Violet’s time with Ms Smith will continue to embed a false narrative against him is not borne out sufficiently by the evidence. Unfortunately, any risk of further embedding or alienation (which would certainly be regrettable) is well outweighed by the risks to Violet.
[22] Sixthly, Violet’s clear views must, in terms of s 6, be taken into account. Her views, in support of current arrangements, could not be clearer. As the lawyer for the child says, her reaction to contact with her father or further interventions to that end
was confirmed again shortly before this appeal hearing and “was extreme and as strong as it has been throughout the proceedings”.
[23] The lawyer for the child talked with Violet about how her life has been since the decision was made in the Family Court and since there has been no contact. Violet has said in response that the current arrangements make her feel better and that she is doing better in life and school.
[24] Seventhly, Violet is doing well now. She is achieving at school and sees herself in a positive light. She is, as the Judge said, a high achiever in a variety of sporting, social and cultural endeavours.13
[25] As the lawyer for the child advised, Violet has been thriving since the conclusion of the Family Court proceedings. Just to take a few examples, she is a school leader and a school committee member, is in the third year of studies at the Children’s University, is a radio journalist, plays a musical instrument, has been taking part in theatre and drama, and is a volunteer in school-based activities.
[26] With these particular circumstances in mind, I turn to consider the orders and potential orders that are the subject of this appeal.
Parenting order
[27] Under s 48 of the Care of Children Act, the Court may make a parenting order determining who will have the role of providing day-to-day care for a child and/or the way in which a person may have contact with a child and the ways in which that contact will occur.
[28] It is said for Mr Smith that the Judge has endorsed what is described as “abusive behaviour” on the part of Ms Smith in making a parenting order in her favour. That, it is said, is at odds with s 5(a) of the Care of Children Act in the sense that it involves, in Mr Smith’s view, psychological violence. It is said for Mr Smith that, in
13 Family Court decision, above n 1, at [62].
making the orders, the Court is effectively saying to Oranga Tamariki and to other external organisations and professionals that Ms Smith is safe, while he is not.
[29] However, the terms and effect of the Judge’s decision are not as binary as that. The Judge stressed that the decision to make a parenting order was “not an unconditional endorsement of [Ms Smith]’ and that it was “not a ringing endorsement of [her] parenting”.14 Rather, against the range of background factors – gathered in this decision at [17]–[26] – the outcome was seen as being consistent with, and most likely to promote, Violet’s best interests.15
[30] It seems abundantly clear to me that maintaining predictability for Violet at this particular point in her life, in the context of the views that she holds, is essential if she is to continue to be safe and to thrive. I see no error on the Judge’s part under this head.
Wardship order
[31] Under s 31 of the Care of Children Act, an application may be made for an order placing a child under the guardianship of the Court and an order appointing a person to be the Court’s agent.
[32] The provision has been described as a flexible and resourceful remedy that can be used to protect vulnerable children16 but it must be regarded as an “extreme step”.17 It is to be “invoked cautiously”.18 It is a “jurisdiction of last resort”.19
[33] It is said for the appellant that the Judge focused unduly on there being a lack of a clear plan in the event of an order under this section. The Judge put it on the basis that there simply was no evidence, at least to the level required, that would enable any confidence that an order under this provision could be a successful course of action.20
14 At [165] and [166].
15 At [166].
16 Hawthorne v Cox [2008] 1 NZLR 409, [2008] NZFLR 1 at [75].
17 Fletcher v Blackburn [2009] NZFLR 354 at [31].
18 Hawthorne v Cox, above n 16, at [75].
19 SG v DSG [2019] NZHC 218 at [28].
20 Family Court decision, above n 1, at [149].
[34] Moreover, it is said for the appellant that, for Violet to remain in the day-to-day care of her mother presents risks of further harm which would be mitigated by s 31 orders.
[35] I can only agree with the Judge. If an “extreme step” is to be taken, there must be a very clear basis for it and an equally clear plan as to what the wardship orders would entail. In the Family Court, it was suggested that orders might facilitate ongoing therapy or support for Violet aimed at the reinstatement of contact with Mr Smith and to manage what was described as Violet’s over-exposure to therapeutic interventions.
[36] However, in view of the particular circumstances that I have described it at [17]–[26], it seems sufficiently clear that any orders of the type suggested under this head would not be in Violet’s best interests and would not be appropriate in having regard to her welfare.
[37]The specialist s 133 report writer has agreed, as has the lawyer for the child.
[38] Furthermore, I see no risk that the orders that are currently in place are such that Violet would be over-exposed to professionals in a way that might be adverse to her view of Mr Smith. There is a case to say that Violet has in the past been over-exposed to therapeutic interventions from a range of professionals. However, I am satisfied that her world, as it is now, involves very little in the way of therapeutic intervention and that no orders are needed to adjust the current state of affairs. The Judge’s findings, to the same effect, are appropriate.
Care or protection orders
[39] Under pt 2 of the Oranga Tamariki Act, one or more care or protection orders may be made in relation to a child. A broad range of orders may be made. As relevant here, an order may be made discharging a parent or guardian from having care of a child,21 ordering a child to have counselling from someone specified by the Court,22 directing the Chief Executive of Oranga Tamariki to provide specified services and
21 Oranga Tamariki Act 1989, s 83.
22 Sections 74, 83(1)(c).
assistance,23 restraining any person from living with a child or using or threatening violence against a child,24 requiring specified support to be provided to a child,25 placing a child or young person in the custody or guardianship of the Chief Executive, or a social or support service or any other person.26
[40] An application for a care or protection order may be made by the Chief Executive, a constable or, with the leave of the Court, any other person.27 The principles to be applied in considering the possible exercise of powers under pt 2 are set out in s 13. The paramount consideration is the well-being and best interests of the child or young person. In determining the child or young person’s well-being and best interests, the Court is to have regard, in addition to the general principles in s 5,28 to the desirability of providing early support and services to improve the safety and well-being of a child or young person at risk of harm, to reducing the risk of future harm, to strengthening and supporting the child or young person’s family or whānau and to the principle that a power under pt 2 that can be exercised without the consent of the persons concerned is to be exercised only to the extent necessary to protect the child or young person from harm or likely harm.
[41] Section 14AA describes the circumstances in which a child or young person is suffering, or is likely to suffer, serious harm. The circumstances are where a child or young person is being, or is likely to be, abused (whether physically, emotionally or sexually), deprived, ill-treated or neglected or if parents or guardians are unwilling to care for the child or young person.
[42] Serious harm is defined in s 14AA and includes circumstances in which a child or young person’s development or physical or mental or emotional well-being is neglected.
23 Section 86.
24 Section 87.
25 Section 91.
26 Sections 101 and 110.
27 Section 68.
28 Which includes a child or young person being encouraged and assisted to participate and express their views about any proceeding and the need for the child to be “at the centre of decision making” that affects them.
[43] Under s 70, no application for a care or protection order may be made unless a family group conference has been held.
[44] As the Judge said, a family group conference was convened but there were no agreed outcomes.29 The Judge referred to s 68 of the Act (as mentioned above) requiring that an application is to be made for care or protection orders and went on to say that the “framework within which this case has been determined has not clearly been based on the Oranga Tamariki Act care or protection scheme” and that he was “not satisfied that there is a sound jurisdictional base for consideration of the care or protection jurisdiction”.30
[45] Later in the decision, the Judge referred back to these comments saying, in relation to the possibility of care or protection orders “as I have already concluded those are not options in the context of this case” and that accordingly “there is no jurisdiction but there is also a lack of clarity or certainty about what would be done, when and how”.31
[46] The appellant says that the Judge has “conflated whether orders should be made under [the Oranga Tamariki Act] with jurisdiction”. I do not see that to be the case. While I accept that “jurisdiction” is probably not the right word to use here, I do not see the Judge as saying that he did not have jurisdiction to consider the application of pt 2 at all. Rather, I see him saying that possible care or protection orders under pt 2 are made in circumstances in which a child or young person is suffering or is likely to suffer serious harm, that those circumstances are not present here – based upon the evidence and upon there being no outcome from the family group conference.
[47] Layered with that is the fact, as the Judge indicated, that there has been no application for an order by the Chief Executive. Certainly, an application may be made under s 68 by any other person with the leave of the Court. But, again, no such application has been made. The appellant says that, in lieu of an application, the parties have effectively been on notice that potential orders under pt 2 were
29 Family Court decision, above n 1, at [48].
30 At [48].
31 At [123].
contemplated because they were raised in a memorandum for Mr Smith and referred to in an affidavit given in the Family Court by an Oranga Tamariki social worker.
[48] However, that is not as I see it sufficient to trigger an application but, in any event, I agree with the Judge that, even if an application had been made, Violet’s circumstances are not circumstances in which a child or young person is suffering, or is likely to suffer, serious harm of the type described in s 14AA such as would warrant consideration of possible orders under pt 2 of the Oranga Tamariki Act. Those circumstances, and the overriding principles in s 13 of the Act, do not fit with the current state of affairs – in which interventions of the type that a care or protection order would involve would put Violet at considerable risk at a time at which her circumstances are positive and stable.
[49] Accordingly, I do not see it, and I do not believe the Judge saw it, as being a jurisdictional issue in the strict sense.32 Moreover, as Mr Williams, for Oranga Tamariki, said during the hearing of the appeal, while, in the event that there was a form of intervention under pt 2 of the Oranga Tamariki Act, it might be possible to develop a plan for Violet, the challenge comes in implementing it. Mr Williams said that there is nothing new or efficacious that Oranga Tamariki can do in circumstances in which, as he put it, there would be an intolerable risk in giving effect to any new plan. The Chief Executive of Oranga Tamariki does not want, it is said, to undermine the current stability that is in place for Violet. While the Chief Executive would be prepared to act as agent of the Court to manage therapeutic interventions if that was what the Court ordered, it does not favour any such approach. It considered its position at the end of the family group conference process late in 2023. It could have taken steps through s 68 at that point in time. It does not wish to do so.
[50] It is quite clear to me that any form of intervention under pt 2 of the Oranga Tamariki Act would not be in Violet’s best interests and would not be beneficial for her welfare in any way. Quite to the contrary.
32 The appellant has referred to the Judge’s reference to WAH v WTW [2010] NZCA 344 in [45] of his decision on the basis that case is not an authority for there being a lack of jurisdiction for the Court to apply the Oranga Tamariki Act in a Care of Children Act case. As discussed, I do not see that as being what the Judge was doing.
[51] For these reasons, there is no basis to disturb the Judge’s approach under this head.
Conclusion
[52] I can find no error in the Judge’s approach. I do recognise that it is a difficult outcome for Mr Smith. I understand entirely his wish for a different outcome. But it is in my clear view the right outcome. It promotes Violet’s welfare and her best interests. It mitigates the dire risks that would otherwise arise. It enables Violet to continue to walk, at this particular point in her life, down the pathway that is most stable for her. That pathway may at some future time merge again with Mr Smith’s pathway. But at this time, Violet’s pathway is best left undisturbed through the continuation of the Family Court’s orders.
[53]The appeal is dismissed.
[54] The parties are encouraged to find a practical costs outcome. If that cannot be achieved, then submissions may be filed for Ms Smith within 20 working days of the date of this decision and, for Mr Smith, within a further 15 working day period. Submissions should be limited to five pages in length (including any schedules). Any costs issues will be dealt with on the papers.
Radich J
Solicitors/Counsel:
Patient & Williams, Christchurch for Appellant Wynn Williams, Christchurch for Respondent
Alexandra Beaumont Barrister, Christchurch – lawyer for child
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