T v B
[2016] NZHC 2266
•23 September 2016
NOTE: PURSUANT TO S 125 OF THE DOMESTIC VIOLENCE ACT 1995
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 US/ABOUT-THE-FAMILY-COURT/LEGISLATION/RESTRICTION-ON- PUBLISHING-JUDGMENTS.
IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY
CIV-2015-483-000031 [2016] NZHC 2266
IN THE MATTER OF an Appeal under the Care of Children Act
2004
BETWEEN
JANE T Appellant
AND
SARAH B Respondent
Hearing: 12 September 2016 Counsel:
S J Ross for Appellant
S E Little for Respondent
D Rimmer as lawyer for the childJudgment:
23 September 2016
RESERVED JUDGMENT OF CULL J
Introduction
[1] This is an appeal by Jane,1 the mother of a 12 year old boy, Michael,2 against a decision of the Family Court, declining to discharge the Court-appointed guardian, Sarah.3 Sarah was the former partner of Jane and is the additional guardian of
Michael. The Judge granted an application by Sarah for direct contact with Michael
1 Not her real name.
2 Not his real name.
3 Not her real name.
JANE T v SARAH B [2016] NZHC 2266 [23 September 2016]
for two hours every three weeks, under the supervision of the Open Home
Foundation.
Background
[2] The parties have been involved in proceedings prior to this decision under appeal. The parties were in a relationship from 2000 until 2005. Prior to their separation, Jane gave birth to Michael on 27 September 2004. Jane left the relationship leaving Michael with Sarah, who entered into a relationship with Anna.4
They raised Michael till mid 2012, when Michael was removed from Sarah’s care, because of care and protection concerns.
[3] Proceedings seeking a protection order and a final parenting order for Jane, and a restraining order sought by the Ministry of Social Development against Sarah, came before Family Court Judge Matheson in November 2013. The history of the issues between the parties in relation to Michael is helpfully described in the Judge’s decision of 14 November 2013, which is set out below:
[7] [Jane] and [Sarah] were involved in a same sex relationship from
2000 until 2005. During that time [Michael] was born.
[8] Following their separation [Sarah] cared for the child, with the assistance of her partner … . On 7 November 2007, by consent, a parenting order was made in favour of [Sarah], with contact reserved to [Jane]. [Sarah] was also appointed an additional guardian of the child.
[9] [Michael’s] behaviour subsequently raised considerable concerns. Following a number of notifications concerning relationship violence, and interviews with the children in the relationship, the child was uplifted from [Sarah’s] care in mid 2012, and placed in Auckland.
[10] In mid 2012 two charges of assault against a child were laid against the Respondent, to which she pleaded guilty. On 31 July 2012, she was sentenced to six months supervision, with the requirement that she attend such counselling, and undertake such programmes as directed by her probation officer. As a result of allegations of non-compliance with the sentence of supervision, the Probation Service made application to cancel the sentence of supervision in December 2012. That application was subsequently withdrawn on 29 January 2013.
[11] On 2 November 2012, a s 67 declaration was made, that the child was in need of care and protection on the grounds set out in ss 14(1)(a) and (b). A support order under s 91 was made, and the plan was approved for
4 Not her real name.
review three months later. The support order was subsequently continued on
12 February 2013, with the updated plan approved and with the review period being for 12 months.
[12] Following difficulties in Auckland the child was returned to the
mother’s care in December 2012.
[13] In late April 2013, the mother sought a parenting order as to day to day care in her favour, and also a protection order. She also sought to discharge the parenting order dated 17 November 2007.
[14] The Respondent consented to the discharge of the 2007 order, but defended the application for the parenting order and the application for protection order.
[15] These matters were tracking to hearing when the Ministry, because of concerns as to contact issues, sought on 29 August 2013, a final restraining order against the Respondent.”
[4] Following the 2013 defended hearing, the Judge made a final protection order in favour of Jane and directed that Sarah, having completed the Living Without Violence Programme in recent months, needed no direction for any further programme to be undertaken. By consent, a final restraining order in favour of the Ministry of Social Development and a final parenting order in favour of Jane were made.
[5] Sarah’s application for a parenting order as to contact was granted on a limited basis namely, that contact between Sarah and Michael was not granted on a face-to-face basis, but contact by way of card or gift was permissible by forwarding those items to the social worker to refer to Michael, if appropriate. The Judge directed a period of consolidation was to follow, with a review of the arrangements to be scheduled for February 2014. Judge Matheson directed that the social worker provide an updated report to the Court as to Michael’s situation for the purposes of the review.
[6] Following the decision of 14 November 2013, Jane filed an application to remove the guardianship of Sarah on 28 March 2014. It was this application that came before Judge Matheson in 2015 at the review hearing and it is his oral decision, which is now under appeal.
The decision under appeal
[7] The review hearing did not take place until 4 September 2015. This was a longer period of time than had initially been anticipated. From 14 November 2013 to the review hearing in September 2015, there had been no face-to-face contact between Michael and Sarah.
[8] At the hearing, there were two matters before the Court:
(a) The application by Jane to discharge Sarah’s guardianship order; and
(b) The application by Sarah for contact on a face-to-face basis.
[9] Following the 2013 decision, the Court requested a specialist report under s 133 of the Care of Children Act 2004 (the Act). The report dated 9 September
2014 was undertaken by Ms Chapman, a registered psychologist. Ms Chapman completed the report, without the opportunity to interview Sarah or observe Sarah with Michael. As the Judge observes in his review decision, that arose because Sarah spoke with Ms Chapman in such a way that the interviewer did not feel safe. Nevertheless, Ms Chapman identified that Michael has a primary attachment with both Jane and Sarah and identified that the current care arrangement was working for Michael but that he wanted to have supervised safe contact with Sarah.
[10] Importantly, Ms Chapman was of the opinion that, given an assurance of physical and psychological safety, it would be in the best interests of Michael to have face-to-face contact with Sarah. The report also noted that preventing face-to-face contact runs the risk of psychologically causing Michael to lose a primary attachment figure, which may impact on his ability to feel well connected and loved, as well as disturbing his sense of identity. Ms Chapman felt Michael needed the opportunity to have contact with Sarah, observing that Michael stated on several occasions that he missed Sarah and that he loved her.
[11] In his decision, the Judge noted that the Gateway Assessment completed by Dr Bates, the consultant paediatrician at Whanganui DHB, supplements the conclusions of the psychologist.
[12] The Judge then considered ss 4, 5 and 6 of the Act and concluded that although Sarah remains volatile and abusive, with a lack of insight into her behaviour, her love for Michael is genuine and strong. Noting that Sarah is a primary attachment figure, the Judge found that that relationship should now be allowed to develop further and ordered that there be contact for two hours every three weeks between Michael and Sarah, under the supervision of the Open Home Foundation.
[13] The Judge considered the factors under s 29 of the Act and found that it is not in Michael’s best interests that Sarah is removed as a guardian. He declined Jane’s application to remove Sarah as an additional guardian. Jane appeals the Judge’s refusal to remove Sarah as a guardian of Michael.
The law
[14] The starting point for removal of a guardian is s 29 of the Act. Section 29 provides:
(1) On an application for the purpose by an eligible person, the court may make—
(a) an order depriving a parent of the guardianship of his or her child;
or
(b) an order removing from office a testamentary guardian or court- appointed guardian; or
(c) an order revoking an appointment of an additional guardian made under section 23.
(2) In this section, eligible person, in relation to a child, means any of the following persons:
(a) a parent of the child; (b) a guardian of the child;
(c) a grandparent or an aunt or an uncle of the child; (d) a sibling (including a half-sibling) of the child; (e) a spouse or partner of a parent of the child; or
(f) any other person granted leave to apply by the court.
(3) An order under subsection (1)(a) (that is, an order depriving a parent of the guardianship of his or her child) must not be made unless the court is satisfied—
(a) that the parent is unwilling to perform or exercise the duties, powers, rights, and responsibilities of a guardian, or that the parent is for some grave reason unfit to be a guardian of the child; and
(b) that the order will serve the welfare and best interests of the child. (4) An order under subsection (1)(b) or (c) must not be made unless the
court is satisfied that the order will serve the welfare and best interests
of the child.
(5) On making an order under subsection (1), the court may also make on its own initiative an order under section 27.
[15] Sarah was appointed an additional guardian of Michael by Court Order under s 23 of the Act. For that reason, the Judge focused on ss 29(1)(b) and 29(4) of the Act. An order cannot be made removing a Court-appointed guardian “unless the Court is satisfied that the order will serve the welfare and best interests of the child.”
[16] The provisions which guide the assessment of a child’s welfare and best interests are ss 4 and 5 of the Act.
[17] Section 4(1)(a) of the Act stipulates that the welfare and best interests of a child in his or her particular circumstances must be the first and paramount consideration in proceedings under the Act. Section 4(2) provides that any person considering the welfare and best interests of a child in his or her particular circumstances must take into account the principle that decisions affecting the child should be made and implemented within a timeframe that is appropriate to the child’s sense of time and most relevantly, the principles in s 5. In addition, the conduct of the person who is seeking to have a role in the upbringing of the child to the extent that that conduct is relevant to the child’s welfare and best interests may also be taken into account as set out in s 4(2)(b) of the Act.
[18] Section 5 of the Act specifies the six principles relating to a child’s welfare
and best interests as follows:
5 Principles relating to child’s welfare and best interests
(a) a child’s safety must be protected and, in particular, a child must be protected from all forms of violence (as defined in section 3(2) to (5) of the Domestic Violence Act 1995) from all persons, including members of the child’s family, family group, whānau, hapū, and iwi;
(b) a child’s care, development, and upbringing should be primarily the
responsibility of his or her parents and guardians;
(c) a child’s care, development, and upbringing should be facilitated by ongoing consultation and co-operation between his or her parents, guardians, and any other person having a role in his or her care under a parenting or guardianship order;
(d) a child should have continuity in his or her care, development, and upbringing;
(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; and
(f) a child’s identity (including, without limitation, his or her culture, language, and religious denomination and practice) should be preserved and strengthened.
[19] Section 5, as set out above, came into force on 31 March 2014, with amendments enacted to reorder and simplify the six principles from the previous enactment. The Supreme Court in Kacem v Bashir had held that the order in which the six principles in s 5 appeared did not affect the weight to be given to each
principle.5 However, Kacem was decided on the basis of the former enactment of
s 5, which had differently worded and a differently ordered set of principles. The changes enacted to s 5 promoted “the child’s safety and protection from all forms of violence” to the top of the list, which became the current s 5(a).
[20] The other relevant consideration in guardianship proceedings is s 6 of the
Act, which provides:
6 Child’s views
(1) This subsection applies to proceedings involving:
(a) the guardianship of, or the role of providing day-to-day care for, or contact with, a child; or
…
(2) In proceedings to which subsection (1) applies:
5 Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1.
(a) a child must be given reasonable opportunities to express views on matters affecting the child; and
(b) any views the child expresses (either directly or through a representative) must be taken into account.
[21] There are a number of authorities which stress the serious consequences of the removal of a guardian from the lives of children. In BLB v RSC, Judge Callinicos described the removal of a guardian under s 29 of the Act as a removal of legal rights which “is a serious intrusion into the natural order of things”.6 For that reason, he observed that the legislation has properly set a high threshold test, which is reflected in the words “an order … must not be made unless the Court is satisfied
...”. He observed that there are few more emphatic legislative restrictions on the exercise of a judicial power than where an enactment states “must not be made” unless certain prerequisites are made out.
[22] Similarly, in IMB v BMA, Judge Murfitt said of the legislative wording in s 29 of the Act:7
Section 29 of the Care of Children Act 2004 empowers the Court to make an order depriving a parent of the guardianship of his child. The restraints contained in s 29 confirm Parliaments intention that this should be a power exercised rarely, and only when strict criteria have been established. S 29(3) directs that such an order must not be made unless the Court is satisfied (as to the matters in s 29(3)(a) and (b).
[23] The same wording and mandatory restriction on removal in the words “an order … must not be made unless the Court is satisfied …” applies to s 29(4). The observations of the Family Court judges in BLB v RSC8 and IMB v BMA9 apply equally to a consideration of removal under s 29(4).
[24] However, there is a distinction between s 29(3)(a) and (b) involving the removal of a parent of a child as guardian and s 29(4) dealing with court-appointed or testamentary guardians. The matters specified in s 29(3)(a) and (b) are twofold,
namely:
6 BLB v RSC [2012] NZFC 7162, [2013] NZFLR 25.
7 IMB v BMA (2007) 26 FRNZ 484 FCat [20] (emphasis added).
8 BLB v RSC, above n 6.
9 IMB v BMA, above n 7.
(a) That the parent is unwilling or unfit to perform or exercise the duties, powers, rights and responsibilities as a guardian; and
(b) That the order will serve the welfare and best interests of the child.
[25] Because the criteria for removal in s 29(3)(a) and (b) have been viewed as “conjunctive in nature” it is only where one of those grounds is made out that the Court is required to turn to the issue of the welfare and best interests of the children under ss 5 and 6 of the Act.10
[26] Section 29(4) however, engages only the second of those considerations, namely that the order will serve the welfare and best interests of the child. Thus, an assessment of the principles under ss 5 and 6 is required.11
[27] In this case, because Sarah was a Court-appointed guardian, the Judge correctly observed that under s 29(4), a s 5 analysis was appropriate. It is the Court’s analysis of the s 5 principles and s 6 application, which this appeal challenges.
Grounds on Appeal
[28] In the points on appeal and at the hearing, Jane contended that the Judge had erred in fact and in law, in failing to remove Sarah as an additional guardian. The principal focus of Jane’s appeal was the insufficient weight given to Sarah’s past violence and volatility in the Judges’ consideration of the s 5 principles and s 6 of the Act.
[29] At the hearing, Mr Ross for Jane clarified that no issue was taken with the Judge’s factual findings or the orders in respect of Sarah’s face-to-face Contact Order or the Support Order. He also accepted that the onus was on Jane to satisfy the Court
that it should differ from the decision of the Family Court.
10 BLB v RSC, above n 6, at [42].
11 Compare BLB v RSC, above n 6, at [8]–[41], where Judge Callinicos canvasses the criteria for removal under ss 29(3)(a) and (b).
Appellate Jurisdiction
[30] This is an appeal by way of re-hearing. Rule 20.18 of the High Court Rules applies and the Supreme Court’s principles in Austin, Nichols & Co Inc v Stichting Lodestar reinforces that an appellate Court when dealing with general rights of appeal has “the responsibility of arriving at its own assessment of the merits of the case.”12
[31] Elias CJ, at [16], summarised the position of the appellate Court:
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.
[32] Thus, if the appellate Court reaches a different view on the merits and is, therefore, of the opinion the decision under appeal is wrong, the appellate Court must act on its own view. This is amplified at [19], where the Court reinforces that wrong means no more than the appellate Court taking a different view on the merits:13
[26] … 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. …
[33] In this case, Counsel were agreed that the Austin, Nichols principles applied to this appeal and that this was an appeal by way of re-hearing. The focus of the appeal was on the Judges consideration of the six principles under s 5 and his application of s 6. Counsel for Michael, Mr Rimmer also addressed the Court on the s 6 considerations of the Act and provided the Court with further updating reports on
the previous months’ face-to-face contact with Sarah and Michael.
12 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] NZLR 141 at [5].
13 B v B HC Auckland CIV-2007-404-5016, 9 May 2008.
[34] I will deal with each of the parties’ submissions in relation to the Family Court judgment by reference to the six principles under s 5 and the considerations under s 6 of the Act, by addressing the Judge’s assessment, followed by each of the appellant’s submissions, under each section.
Submissions
Section 5(a) – a child’s safety must be protected and, in particular, a child must be protected from all forms of violence (as defined in section 3(2) to (5) of the Domestic Violence Act 1995) from all persons, including members of the child’s family, family group, whanau, hapu, and iwi
[35] The Judge took into account that safety is a significant issue under s 5(a) of the Act and that Sarah’s conviction of assault on Michael and her ongoing volatility identified “a considerable deficit”, weighing against her. He noted that nothing much had changed in that regard between the 2013 hearing and the review. Despite that, the Judge determined that it was in Michael’s best interests that face-to-face contact occur, provided it be supervised and that Michael was kept safe.
[36] Jane contends that although the Judge concluded that safety was a significant issue under s 5(a), the Judge concluded that nothing much had changed for Sarah and that she continued to be violent and volatile, lacking insight into her behaviour and its effect on Michael and Jane. The effects on Michael were summarised in the Whanganui District Health Board Gateway Assessment report, which recorded that Michael shows features in his behaviour, in keeping with his past emotional trauma, stemming from the emotional and physical abuse in part from Sarah. Michael’s behaviour has severely impacted his progress at school. Jane submits that significant weight should have been given to these safety issues, as it was clear that Sarah, through her volatility and lack of insight remained a risk to Jane and Michael.
[37] In response, Sarah submits that the Court has been careful to place restrictions around her contact to ensure that Michael’s safety is not compromised and that the s 133 report confirms that there is a primary attachment between Michael and Sarah and her removal as guardian would affect her ability to contribute to Michael’s personal development and important matters affecting him. Sarah
submits that the risk of Michael being exposed to abusive behaviour between the parties is minimal for the following reasons:
(a) Jane has the benefit of continuing final protection and restraining orders against Sarah.
(b)The conditions of contact between Michael and Sarah do not allow exposure of Michael to interactions between Sarah and Jane.
(c) Sarah’s involvement, consultation and discussion regarding guardianship decisions can be accomplished through email, texting or a third party without the need to specifically occur face-to-face with Jane.
(d)Sarah has no history of unreasonably or vexatiously involving herself in guardianship matters.
Section 5(b) – a child’s care, development, and upbringing should be primarily the
responsibility of his or her parents or guardians
[38] In his consideration of parental and guardianship responsibility, the Judge had regard to the following factors:
(a) Jane wants to be free of Sarah’s control.
(b) Jane has also had “some frailties in her life, even though she has
turned the corner.”
(c) Retaining Sarah as a guardian will have the effect of “a robust audit process” which is important.
(d) Sarah has maintained a "sincere interest in Michael. She is able to
add value to his life.”
[39] The Judge concluded that the relevant issue is the guardian interest which
Sarah is seeking to achieve, not “a controlling of Jane.”
[40] Jane submits that the Court was wrong in principle to suggest that Jane or Michael required Sarah as an “auditor”, when the Court failed to give weight to its own findings that Sarah was unable, through her own failings, to provide any meaningful assistance to Michael’s care and development, other than two hours supervised contact every three weeks. It is submitted that the Court failed to take into account also that Jane had a final parenting order and had been caring successfully for Michael for some years, with the support of the Child Youth and Family Service through the support order.
[41] Jane contends that removing Sarah as a guardian does not diminish the ability for her to add value to Michael’s life, although she doubted that Sarah was going to make a significant contribution when she had not managed to address her own issues, which are manifesting themselves in Michael’s behaviour.
[42] Sarah rejects the submission that the “robust audit process” involves a control of Jane but submits that the guardianship regime in the Act envisages that a child should have two guardians and imposes on those guardians an obligation to consult and communicate and act jointly in terms of making guardianship decisions for the child. Guardians should not monitor or supervise each other but add their own value to the child’s life and discharge of their duties and responsibilities. Sarah reminds the Court that she was the parent figure for Michael for the first eight years of his life and she knows and understands him. There is nothing in the evidence to indicate that the removal of Sarah as a guardian would serve Michael’s welfare or best interests in any positive way.
Section 5(c) - a child’s care, development, and upbringing should be facilitated by ongoing consultation and co-operation between his or her parents, guardians, and any other person having a role in his or her case under a parenting or guardianship order
[43] The Judge conceded that it would be easier for Jane if Sarah was “not on the board of directors” as the protection and restraining orders demonstrate. However, with the protection and restraining orders in place, the Judge believed that “the consolidation and co-operation” issue can be addressed, and he approved the s 133 reports which focus on Michael being the “hub” and his attachment figures and
others important to him feeding into that hub. The Judge concluded that the support order should continue and this would provide an ability for both of the significant attachment figures to take part in the major decision-making that needs to be done for Michael.
[44] For Jane, it is submitted that the Judge’s conclusion ignores the reality that Jane has a final parenting order as to day-to-day care and that a “board of directors” approach is not appropriate in this case, because Jane should not feel under pressure to communicate and consult with the person who is intimidating, violent and volatile. Further, s 5(c) and the support order do not require or support a “board of directors” approach to decision-making.
[45] Sarah submits that the “board of directors” approach reinforces the affirmative obligation imposed on guardians by s 16(5) of the Act to act jointly and enables Sarah to have input into guardianship matters for Michael that requires her input to be acknowledged. The fact of a final parenting order in favour of Jane for day-to-day care does not detract from the parties’ obligations and duties as guardians and nor do the protection and restraining orders preclude Sarah from remaining as an additional guardian of Michael. Sarah referred to passages of the evidence where breaches of the protection order have occurred as a result of miscommunication, but there have been times when the parties have had appropriate and “good quality conversations” about Michael. With the support order and mechanisms in place, there is sufficient support for the parties to enable appropriate consultation and co- operation.
Section 5(d) – a child should have continuity in his or her care, development, and upbringing
[46] The Judge concluded that continuity dictates that the current decision-makers should remain in place, particularly when Michael is expressing his wish to maintain contact with Sarah and has questions about his identity in relation to her. His wish arises after a period of consolidation in his care by Jane.
[47] Jane submits that there is nothing in the evidence that suggests Michael’s
development would be enhanced by Sarah remaining in a guardianship role and that
the evidence and findings of the Judge indicate the opposite. She points to the protection orders and the restraining order obtained by Child Youth and Family Service to demonstrate that there are considerable risks for Michael’s continuity of care, noting there has been no consultation between Sarah and Jane since 2012, when Michael returned to Jane’s care.
[48] In response, Sarah points to the following three factors:
(a) Section 16(1)(b) places affirmative obligations on guardians in terms of contributing to the child’s development, so it is not correct to suggest that continuity of care under s 5(d), does not contemplate continuity in terms of decision-makers.
(b)The s 133 report writer gave evidence that Sarah is a primary attachment figure for Michael, that she is an important figure in his life and that from Michael’s perspective it is important that Sarah is involved in his life. The report writer observed that Sarah’s continued involved in Michael’s life is important for his sense of identity.
(c) The retention of Sarah as an additional guardian will help to ensure continuity in Michael’s development and upbringing and provide accountability in respect of critical decisions, such as a change in Michael’s schooling.
Section 5(e) – a child should continue to have a relationship with both of his parents, and a child’s relationship with his or her family group, whanau, hapu, or iwi should be preserved and strengthened
[49] The Judge considered that retention of Sarah as a guardian would mean a ratification of her as a primary attachment figure, which the s 133 report writer confirmed. The Judge concluded that Michael will benefit from an ongoing relationship and that that relationship will be strengthened by the guardianship of Sarah being retained.
[50] Jane submits that Sarah does not need legal status as a guardian to develop a strong and enduring relationship with Michael and any relationship between Michael and Sarah at present is unrelated to her legal status as a guardian. Any ratification of Sarah’s guardianship status would be meaningless to Michael, in terms of his relationship with Sarah. Sarah replies that the continuation of her guardianship role will legitimise and enforce her involvement in Michael’s life. Her removal as guardian would be likely to dilute her legitimacy as a parent and undermine her position as an attachment figure for Michael.
Section 5(f) – a child’s identity (including, without limitation, his or her culture, language, and religious denomination and practice) should be preserved and strengthened
[51] The Judge concluded that Michael’s identity, as a “whole package”, will be consolidated with his primary attachment figures being seen as equals at the decision-making table.
[52] Jane submits there was no evidential basis for the Court to conclude that the parties could ever get to the stage of being around the “decision-making table” together and Michael’s identity does not depend on Sarah remaining as guardian.
[53] Sarah points to the factual basis for the Court to conclude that Michael’s identity would be consolidated by his primary attachment figures being seen as equals at the decision-making table, by reference to the s 133 report writer’s evidence. Ms Chapman not only confirmed that Sarah was a primary attachment figure, but developmentally Michael’s “brain is wired to have a relationship with her” as a result of spending his first eight years with Sarah. The likely effect of removal of Sarah, she submits, is that Michael’s sense of identity would be impacted negatively.
Section 6 – the Child’s Views
[54] The Judge acknowledged that while the concept of guardianship is beyond the understanding of Michael, Michael’s view is that Sarah is a significant person in his life. In considering all of the factors and Michael’s views, the Judge concluded
that it was not in Michael’s best interests that Sarah be removed as a guardian and he declined to make such an order.
[55] Jane submits that although Michael has a clear wish to have contact with Sarah, the Court failed to give sufficient weight to the fact that Jane had a protection order, that Jane remains vulnerable to Sarah’s ongoing violence and volatility and that maintaining the status quo causes stress and uncertainty for Jane, who is the most important person in Michael’s life at the present time.
[56] Sarah responds that Michael clearly told the professionals assisting the Court, including the social worker, the psychologist and the Counsel for the child, that he wishes to continue to have face-to-face contact with Sarah and an ongoing relationship with her.
[57] At this appeal hearing, Counsel for the child, Mr Rimmer produced two reports from the Open Home Foundation, which supervises contact between Michael and Sarah. Those reports dated 24 May and 5 September 2016, record that the relationship between Sarah and Michael is “very warm and loving”. Michael responds very well to Sarah and enjoys their time together in whatever activities they engage in and the supervisor specifically observed that Sarah is very caring to Michael and that his needs are her priority during access. The contact between Michael and Sarah posed no concerns to the supervisor, but the unresolved historical issues between Sarah and Jane has produced difficulties in the timing of delivery of Michael to the contact visit. Alternative arrangements are proposed for the pickup and drop off of Michael to avoid any heated exchange between the parties.
[58] Mr Rimmer confirmed that there was a strong and loving relationship between Michael and Sarah, which was burgeoning. More hours of contact were preferable provided that supervision is available. Mr Rimmer addressed the concerns expressed by Mr Ross for Jane that Sarah’s volatility and her inability to engage with professionals counted against her involvement as a guardian. Mr Rimmer reminded the Court that Sarah’s inability to engage with professionals may well have resulted from her deafness, which in turn causes frustration. He acknowledged that Sarah lacks insight into her volatility but reinforced that the
Judge’s “board of directors” approach was appropriate, with a number of people
having input into Michael’s life.
Analysis
[59] In viewing the Family Court judgment on appeal, this Court is also bound by s 29(4) of the Act, where an order removing a guardian must not be made unless the Court is satisfied that the order will serve the welfare and best interests of the child.
[60] The principal thrust of Jane’s appeal is that the Judge failed to give significant weight to Sarah’s volatility, violence and lack of insight. For reasons which follow, I am unable to uphold Jane’s appeal.
[61] The Judge has presided over a number of applications and two defended hearings involving these parties. He specifically addressed s 5(a) considerations fully in his decision of 14 November 2013, when he canvassed the background issues relating to the parties, including the violence and volatility of Sarah. He has made protection orders and a restraining order at the request of Child, Youth and Family.
[62] The Judge has also balanced the “frailties” of Jane, giving her a period of consolidation with Michael, before he allowed face-to-face contact between Michael and Sarah. This period of consolidation was longer than the Judge anticipated and at the time of the 2015 review hearing, Sarah had had no face-to-face contact with Michael for two years. Nevertheless, as the report writers confirm, Michael expressed a wish to retain his relationship with Sarah, to whom he has a “primary attachment”.
[63] Despite the fact that the psychologist did not interview Sarah or observe her interaction with Michael, she confirmed that Michael had a primary attachment with Sarah. Michael had expressed to her that Sarah was his other parent and that he missed his cousins and family on her side. He reported his feelings about the hitting and other forms of violence, but clearly stated several times that he wanted contact with Sarah in a supervised setting once a fortnight with another safe adult. The psychologist concluded that it was not in the best interests of Michael, for his longer
term sense of attachment to a significant adult in his life, not to have face-to-face contact with Sarah. For that reason, it was considered important that he be offered at least some contact with her. The s 133 report was available to the Court for the review hearing and Ms Chapman gave evidence at the hearing, confirming that Sarah was an important figure in Michael’s life.
[64] At the review hearing, the Judge had available to him two other professional opinions, which upheld the psychologist’s conclusions. They were the paediatrician’s assessment and two social work reviews under ss 99, 135 and 128 of the Children, Young Persons, and their Families Act 1989 (CYPF Act).
[65] Dr Bates provided a Gateway Assessment on Michael’s developmental issues and reported that Michael thinks of Sarah as being his “father”. Dr Bates reported that the biggest issue for Jane in caring for Michael, is that he is asking more and more questions about his father. He also observes that “on one hand Michael misses Sarah but on the other she was emotionally abusive”. Jane is reported as being happy for Michael to start having contact again with Sarah, but it was dependent on Sarah’s behaviour.
[66] A social work review of plan report was undertaken by Mr Caldwell, under ss 99 and 135 of the CYPF Act. He reports on Michael’s interviews, where Michael confirmed to Mr Caldwell that he would like to see Sarah, as it would “be fun” and that it has been hard to have not been able to see her for the last few years. In addition, Mr Caldwell provided a protection plan under s 128 of the CYPF Act, in which he observed that although there had been no contact between Sarah and Michael, gifts and cards had been dropped off by a family member from Sarah to Michael at Jane’s home.
[67] Having had regard to the independent professional opinions, the Judge balanced the domestic violence and child safety issues with Michael’s need to engage further with Sarah by referring to his orders in 2013, which restricted Sarah contact with Michael, “because of the desire to cement and support the child’s placement with his mum”.
[68] In my view, the Judge has effectively balanced the tension between “the important principle of protecting a child’s safety and the need to ensure the welfare and best interests of Michael are not impacted negatively by the removal of Sarah as his guardian.” The Judge has also appropriately balanced the distinction between care of child issues and guardianship. By carefully analysing the independent professionals’ reports, the Judge was more than justified in reaching his conclusion that the relationship between Michael and Sarah should now be allowed to develop further, with Sarah’s involvement as a primary attachment figure for Michael. Significantly, the Judge records that “she is part of his identity. He wants to see her and needs to see her to feel whole. His voice needs to be heard. The contact has the support of the s 133 reporter and his lawyer”.
[69] The Judge’s approach also accords with the legal authorities, which have drawn a distinction between care of child issues and guardianship. Those cases confirm that questions of safety are more aptly addressed in relation to care and contact than guardianship. In MLM v Chief Executive Ministry of Social Development Miller J said: 14
When applying [the standard for removing guardians] the Court scrupulously distinguishes between care and guardianship, recognising both that guardianship is a special relationship and that parenting and contact orders can usually manage any risk to the child.
[70] The Courts have also addressed the issues of violence and criminality in relation to guardianship rights and have drawn distinctions between care and guardianship, noting that an abusive parent does not lose rights of guardianship on that basis alone.15
[71] In reaching his conclusion that Sarah should remain an additional guardian of Michael, the Judge appropriately had regard to the principles under ss 5(b)-(f) and 6 of the Act. The Judge’s view that retaining Sarah as guardian will have the effect of “a robust audit process of Michael’s care” does not involve a control of Jane, as she
submits, but recognises that the guardianship regime involves two guardians in the
14 MLM v Chief Executive Ministry of Social Development [2013] NZHC 1064 at [24].
15 IMB v BMA, above n 7 at [39]; MLM v Chief Executive Ministry of Social Development, above n
14, at [26].
decision-making required for Michael. The Judge viewed this appropriately as an advantage to Michael because Sarah is able to add value to his life.
[72] Similarly, the Judge’s reference to “the board of directors” reflected the s 133 report conclusion, that Michael should be the hub and his attachment figures and others important to him should feed into that hub. Although the Judge accepted that it would be easier for Jane if Sarah was not on the “board of directors”, the Judge made a support order that provided an ability for both of the parties, “the significant attachment figures”, to take part in the major decision-making that needs to be done for Michael. The Judge’s conclusion was supported by careful professional opinion and his own views, which had been reached after two defended hearings and his assessment of the witnesses at both. The Judge’s assessment of the principles under ss 5 and 6 were carefully considered and reasoned, against a background of a wealth of information available to him from 2013 to 2015.
[73] In a general appeal, the appellate Court must reach its own assessment of the merits of the case. Having reviewed the Judge’s assessment of the principles under ss 5 and 6 of the Act, I see no basis for overturning the Family Court Judge’s decision. In reaching that conclusion, I have had particular regard to s 5(a) and the past physical and emotional abuse of Michael by Sarah. I consider that the Judge has effectively balanced the protection and safety issues for Michael with his need to maintain his relationship with Sarah. The period of consolidation of Michael with his mother enabled the Judge to assess the welfare and best interests of Michael, addressing some of the concerns he expressed in his full decision in 2013.
[74] I have also had regard to the following matters, which I believe support the
Judge’s conclusion. They are:
(a) The consistent wish expressed by Michael to maintain his relationship with Sarah. He sees her as “his dad”.
(b)The face-to-face contact with Sarah has been supervised, so that all safety concerns are addressed. This contact has allowed the relationship between Michael and Sarah to flourish.
(c) Four independent professionals have verified that Michael wishes to maintain his contact with Sarah in an ongoing way and that Sarah’s continued involvement in Michael’s life is important for his sense of identity. In addition to the three professional opinions outlined above, Counsel for the child, in providing the Open Home Foundation reports on supervised contact, confirmed to this Court that there was a strong loving relationship between Michael and Sarah and their relationship was burgeoning.
[75] In reaching my conclusion on this appeal, I have also taken into account that the Judge, as a specialist Family Court Judge, has had the opportunity to hear and assess the evidence of the parties over several years, together with the evidence of the independent professionals.
Result
[76] The appeal is dismissed.
[77] The parties have leave to file memoranda as to costs, which should be filed within 21 days of the date of issue of this judgment.
Cull J
Solicitors:
Stephen Ross & Raukawa Simon, Whanganui for Appellant
Horsley Christie, Whanganui for Respondent
D N Rimmer, Whanganui, lawyer for child
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