TWA v HC
[2017] NZHC 1345
•19 June 2017
ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF THE PARTIES AND THE CHILD, S.
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2017-404-512 [2017] NZHC 1345
UNDER the parens patriae jurisdiction of the Court
exercised in respect of S
IN THE MATTER
of an application to declare that the present parens patriae directions are spent and appoint an agent to act on behalf of the Court under that jurisdiction
BETWEEN
TWA Applicant
AND
HC Respondent
Hearing: 13 June 2017 Appearances:
Applicant in person
J M Attfield for RespondentJudgment:
19 June 2017
JUDGMENT OF WOODHOUSE J
This judgment was delivered by me on 19 June 2017 at 11:30 a.m. pursuant to r 11.5 of the High Court Rules 1985.
Registrar/Deputy Registrar
……………………………………
Parties / Solicitors: The Applicant
Ms J M Attfield, Tagelagi & Attfield, Solicitors, Auckland
TWA v HC [2017] NZHC 1345 [19 June 2017]
[1] This proceeding concerns the welfare and best interests of a 10 year old child, S. The applicant, TWA, is S’s father. At the time of S’s birth her mother and father were both serving prison sentences. S was placed in the foster care of the respondent, HC, and has been in HC’s day-to-day care until today. TWA remains in prison. S’s mother died in July 2014.
[2] The primary issues are whether orders made by the Court of Appeal in an earlier proceeding brought by TWA,1 for the guardianship of, day-to-day care for, and contact with, S, are still in force, and are validly before, and can be reviewed by, the Family Court.
Factual background
[3] The factual background is conveniently taken from the Court of Appeal’s
decision.
[13] The relevant factual background is as follows. When S was born, her parents agreed that she should be placed under the parens patriae jurisdiction of the High Court from the date of her birth until more suitable arrangements could be made by the Family Court. Shortly thereafter, the Family Court made an interim custody order in favour of the Ministry of Social Development, which remained in force until September 2012 when a custody order was granted in favour of the Chief Executive under s 101 of the [Children, Young Persons, and Their Families Act 1989]. S’s parents remained her legal guardians until her mother died in mid-2014, at which point TWA became her sole legal guardian.
…
[15] The Chief Executive has placed S with HC who has cared for her, for all practical purposes, for all of S’s life. Although HC is not related to S, HC considers S to be her daughter and S is a much loved and cherished member of her family. In early 2014 HC filed an application to discharge the existing s 101 custody order which had given the Chief Executive custody of S. Under the Ministry’s Home for Life placement policy, HC sought parenting and guardianship orders in respect of S under the [Care of Children Act 2004]. The Ministry supported the applications and HC understood that the applications were also supported by TWA as well as S’s maternal grandparents.
[16] In late 2014 Judge Neal held a settlement conference in the Family Court about the applications, which TWA was able to join by audio-visual link. With the consent of all parties, Judge Neal discharged the existing s 101 order, and recorded the making of the following orders in a minute dated 21
October 2014:
1 TWA v HC [2016] NZCA 459, [2016] NZFLR 763.
(a) an order pursuant to ss 110(1) and 110(2)(b) of the CYPFA appointing the Chief Executive as an additional guardian of S for limited purposes broadly related to social work and financial assistance;
(b) discharging all other orders made under the CYPFA;
(c) a parenting order in favour of HC providing that she is to have the day-to-day care of S, and a further parenting order providing that TWA shall have supervised contact with S when S requests that. Both parenting orders were made under s 48 of the COCA; and
(d) an order under s 27 of the COCA appointing HC as an additional guardian of S.
The Court of Appeal decision
[4] The Court of Appeal decision was made on an appeal by TWA against a decision of this Court dismissing an application by TWA for a writ of habeas corpus in respect of S.2 TWA contended that S was unlawfully detained because the orders of the Family Court made in October 2014 were invalid. The Court of Appeal concluded that all of those orders were invalid.
[5] The Court’s conclusion, without more, would have meant that the only person with any form of legal authority in respect of S would be TWA, as S’s sole guardian, but he was in prison and there was no person with legal authority to provide day-to- day care for S. To address these difficulties, the Court made two orders of relevance. The orders, taken from the statement of the formal orders at the commencement of the judgment, are:
CThe application for the writ of habeas corpus is transferred to the Family Court for determination under s 13(2) of the Habeas Corpus Act 2001.
DUnder the High Court’s parens patriae jurisdiction, the arrangements for the care and custody of S will continue as set out in [16(b)]- [16(d)] until any further orders are made in the Family Court for the care and guardianship of S.
[6] I will refer to the orders recorded in D as “the substantive orders”. As may be
seen from [16] of the Court of Appeal’s decision, there are three substantive orders, as follows:
2 TWA v HC [2016] NZHC 1765.
(1) A parenting order under s 48 of the Care of Children Act 2004 (the
Act) which provides that HC is to have the day-to-day care of S.
(2) A further parenting order under s 48 of the Act which provides that
TWA shall have supervised access with S when S requests it.
(3)An order under s 27 of the Act appointing HC as an additional guardian of S.3
[7] TWA did apply for leave to appeal to the Supreme Court, but his application was refused.4 The orders of the Court of Appeal are binding on the parties according to their terms. Whether the substantive orders are still in force is, as earlier noted, one of the matters requiring consideration.
[8] The reasons of the Court leading to the substantive orders, to be considered in light of the factual background, are as follows:
[43] S’s present care arrangements provide for her guardianship and day- to-day care. If they are removed without some alternative orders in place, protection issues arise for S because TWA remains in prison. This case is clearly one in which the substantive issue in the application is the welfare of a young person under 16. Transfer of this application is the best way of ensuring that orders, which must be made to replace the impugned orders providing for S’s ongoing care, are made in her best interests. In light of the provisions of s 14(3), we are not required to issue the writ notwithstanding our finding that the existing orders are invalid. The issue by this Court of a writ of habeas corpus is plainly not the appropriate disposition of this application.
[44] In light of our finding that the existing orders are invalid, it is necessary to make orders providing for S’s ongoing care until the Family Court can consider and determine the application. We accept the Chief Executive's submission that this interim period is best addressed through the exercise of the parens patriae jurisdiction, expressly preserved by s 13(2) of the COCA in matters not provided for in that Act.
[45] Although the Family Court orders were invalidly made, the Court was undoubtedly satisfied that the care arrangements reflected in them were in S’s best interests. The Chief Executive submits that pursuant to the High Court’s parens patriae jurisdiction, we should direct that those arrangements for care and custody continue (without the s 110 CYPFA order) pending further orders of the Family Court providing for S’s care and custody. We agree that those are appropriate orders to make in circumstances where there
3 This order made HC a guardian in addition to TWA.
4 TWA v HC [2016] NZSC 136, [2017] NZAR 298.
is no evidence that the existing day-to-day care arrangements for S are in any way inadequate or inappropriate. Those orders will provide that HC should continue to provide care and custody for S as if the parenting orders were still in place, that HC should continue to be an additional guardian for S and that TWA should continue to have supervised contact with S when she requests that.
[46] Just before this judgment was to be released, TWA filed an additional memorandum advising that he had notified Child Youth and Family Services (CYFS) of concerns regarding parental alienation and a lack of support from HC for TWA’s supervised contact with S. The Chief Executive confirms that CYFS have commenced a child and family assessment. However, he also confirms that this does not indicate any concern for the safety of S. Rather, more information is needed to address the concerns raised by TWA and this is the method by which CYFS gathers that information.
[47] TWA’s concerns regarding parental alienation are best addressed by the Family Court. The additional matters raised by TWA do not cause us to take a different view of what is in the best interests of S as to care and custody arrangements in the interim period before the Family Court has the opportunity to consider TWA’s application for a writ.
The present applications
[9] There are two applications by TWA before the Court: an originating application and, in that proceeding, an interlocutory application for an order that HC answer interrogatories. Whether there is need to consider the interrogatories application will depend on my decision on the relevant issues now before the Court on the originating application.
[10] In the originating application TWA seeks the following:
AN ORDER or declaration that the existing directions under the parens patriae jurisdiction of this Court in respect of [S] are spent and no longer subsisting AND AN ORDER appointing the Chief Executive of the Ministry of Social Development as the Court’s agent under that jurisdiction should be made as sought at paragraph 41 of the memorandum [of TWA] dated 20
March 2017.5
[11] The “existing directions” referred to in the application are the substantive orders. The factual foundation for the contention that the substantive orders are no in force is that on 8 December 2016, shortly after HC filed applications for
permanent parenting and guardianship orders in the Family Court, TWA applied to
5 Paragraph 41 of TWA’s memorandum is discussed below at [20].
discontinue his application for the writ of habeas corpus. Leave to discontinue was granted by order of the Family Court made on 1 February 2017.
[12] TWA contends that the substantive orders came to an end on discontinuance of the application for the writ. TWA submitted that the Court of Appeal’s decision makes clear that the substantive orders were to remain in force only until the application for the writ had been determined, and this occurred when it was discontinued. TWA placed particular emphasis on one sentence in the Court of Appeal’s decision at [45] when it said, following reference to the orders proposed by the Chief Executive:
We agree that those are appropriate orders to make in circumstances where there is no evidence that the existing day-to-day care arrangements for S are in any way inadequate or inappropriate.
I have emphasised the words given emphasis by TWA.
Are the substantive orders still in force?
[13] I do not agree with TWA’s argument that the substantive orders are at an end. In coming to this conclusion I have taken account of TWA’s submissions in addition to the point given emphasis from [45] of the Court of Appeal’s decision.
[14] In formally recording the substantive orders in D (set out above at [5]), the Court of Appeal expressly ordered that the substantive orders “will continue … until any further orders are made in the Family Court for the care and guardianship of S”. The Court of Appeal no doubt anticipated that, if there were issues in respect of the substantive orders, the proceeding in which they might be addressed was the application for the writ of habeas corpus. But the Court did not direct that the substantive orders could only be subject to review in the course of the final disposition of the application for the writ. Nor did the Court direct that the substantive orders were to come to an end when the application for the writ of habeas corpus was finally determined, or otherwise disposed of. The application for the writ was simply a procedural vehicle which would enable any issues concerning the care and guardianship of S to be determined. And implicit in that, it was a
vehicle to enable any matters to be determined if one or both of the parties chose to raise issues in that context.
[15] The duration of the substantive orders is plainly independent of the way in which the application for the writ of habeas corpus was brought to an end. The substance of the Court’s order is that the substantive orders are to remain in force unless and until they are varied or revoked by the Family Court.
[16] That conclusion, based on the plain meaning of order D, is consistent with the Court’s reasons for making the orders now under consideration. The reasons must, of course, be considered in their entirety, not by reference to a single sentence, or parts only of the reasoning.
[17] There are further considerations supporting the conclusion that the substantive orders remain in force. In making orders C and D the Court accepted a submission for the Chief Executive as to the appropriate orders and rejected a submission of TWA in that regard. TWA’s submission was that the Court should quash the High Court order refusing to issue a writ, issue the writ, and then invoke the parens patriae jurisdiction of the High Court and appoint the Chief Executive the Court’s agent. TWA submitted that, with those orders in place, the parties could then apply to the Family Court for further orders.
[18] The further orders TWA now seeks, assuming he is correct in his argument that the substantive orders are spent, are in large measure the orders that the Court of Appeal has already concluded are inappropriate. If TWA’s primary argument was correct, further orders would have to be made to avoid what may be called a legal vacuum in relation to day-to-day care of S. An outcome rejected by the Court of Appeal cannot result unless there is material uncertainty in relation to the effect of the substantive orders. There is no material uncertainty.
[19] This difficulty in respect of the further orders sought by TWA is not altered by his additional argument that circumstances have changed since the Court of Appeal made its decision. The Court of Appeal plainly intended, in its substantive orders, that the Family Court was the appropriate forum to address all relevant
issues, including whether circumstances had changed and, if so, whether those changes require any modification of the substantive orders.
[20] The matters just addressed require some further comment in relation to the further orders sought by TWA in his originating application for the appointment of the Chief Executive as this Court’s agent. This is to enable the Chief Executive to assess matters relating to contact between TWA and S, whether counselling for S is appropriate (to help her deal with and counteract any parental alienation), and to consider whether S should remain in the day-to-day care of HC. These are the objectives referred to in paragraph 41 of TWA’s memorandum of 20 March 2017. In substance what TWA seeks is an order of this Court to empower the Chief Executive to make recommendations relating to the welfare and best interests of S, notwithstanding the Court of Appeal’s decision that it is the Family Court that should make all necessary assessments relating to the welfare and best interests of S. And it will be noted that the Court of Appeal’s decision was made with knowledge of TWA’s concerns about parental alienation. The Court turned its attention directly to TWA’s concerns in that regard at [46]-[47].
[21] In the course of a discussion with me, TWA expressly agreed that, if there is no legal impediment, the best outcome will be for all parenting and guardianship issues relating to S to be dealt with in the Family Court. This also is the objective of HC. TWA made clear that he considers that it will be highly desirable if any substantial issues are referred first to mediation. When I refer to matters being determined under the Act through the Family Court, that necessarily includes any statutory processes that are available and appropriately invoked, such as mediation.
[22] The remaining issue is, therefore, whether there is any jurisdictional impediment to the Family Court being seized of all relevant matters, including a power to review and, if appropriate, vary or revoke, any of the substantive orders. This is the issue to which I now turn.
The jurisdiction of the Family Court
[23] Section 125 of the Act contains provisions relating to the jurisdiction of the courts. In general, proceedings under the Act must be heard and determined in the
Family Court. TWA submitted that s 125(2) means that the Family Court has no jurisdiction. Section 125(2) is as follows:
The Family Court must not entertain an application in respect of a child
(except an application specified in subsection (3))—
(a) if an order of the High Court about the guardianship of, or about the role of providing day-to-day care for, or about contact with, the child (other than an order under section 46R) is in force, and has not been removed into the Family Court under section 127; or
(b) if the child is under the guardianship of the High Court.
[24] The exceptions specified in subsection (3) are not relevant. Paragraph (b) has no application. In developing his submission, TWA did refer to the fact that the substantive orders were made by the Court of Appeal in exercise of the High Court’s parens patriae jurisdiction. However, exercise of the jurisdiction did not mean that S is now under the guardianship of the High Court.
[25] The issue is whether paragraph (a) means the Family Court does not jurisdiction because the substantive orders have not been removed from the High Court into the Family Court under s 127 of the Act.
[26] Paragraph (a) and s 127 have to be read in light of s 13 of the Habeas Corpus Act 2001 which empowers the High Court to transfer orders about guardianship, day-to-day care, and contact into the Family Court. The relevant provisions of s 13 are as follows:
13 Powers if person detained is young person
…
(2) If the substantive issue in an application is the welfare of a person under the age of 16 years, the High Court may, on its own initiative or at the request of a party to the proceeding, transfer the application to the Family Court.
(3) An application referred under subsection (2) must be dealt with by the Family Court in all respects as if it were an application to that Court under the Care of Children Act 2004.
[27] As recorded in the Court of Appeal’s discussion and order C, s 13(2) of the
Habeas Corpus Act was expressly invoked to transfer the habeas corpus application
to the Family Court. In doing so, what the Court was also doing, as expressly empowered by the Habeas Corpus Act, was transferring the substantive orders to the Family Court as an essential step to enable the Family Court to adjudicate further on “the substantive issue” – the welfare of S – if such was required. A substantial part of the Court’s discussion in respect of these matters was to the effect that, although the application before it was one for issue of a writ of habeas corpus, the issues that had to be addressed were those concerned with the welfare and best interests of S.
[28] The conclusion, on this analysis of s 13 of the Habeas Corpus Act, is that the substantive orders have been transferred to the Family Court. And, for the reasons earlier recorded, the substantive orders remain in force and will remain in force unless and until an application is made to the Family Court which results in an order effecting a change to any of those substantive orders.
[29] This conclusion is not contrary to the Act. To find otherwise would require a conclusion that, although the Court of Appeal, pursuant to its High Court parens patriae jurisdiction, could make the substantive orders, it could not then do what is plainly contemplated by s 13(2) and transfer those orders to the Family Court. Section 125 does not require that result. Section 125 of the Act and s 13 of the Habeas Corpus Act are complementary. This conclusion is also consistent with s 4(1) of the Act. Section 4(1) directs that the welfare and best interest of the child must be the first and paramount consideration not only in the administration and application of the Act, but also in any other proceedings involving the guardianship of, or the role of providing day-to-day care for, or contact with, a child. Those first and paramount considerations are to be applied to matters of a jurisdictional and procedural nature unless there is a clear statutory provision expressly directing a contrary result. There is none.
Conclusion on the primary issues
[30] In summary, my conclusions on the primary issues are:
(a) The following orders made by the Court of Appeal in TWA v HC
[2016] NZCA 459 remain in force and will remain in force unless and
until any one or more of them is varied or revoked by the Family
Court:
(1) A parenting order under s 48 of the Act which provides that
HC is to have the day-to-day care of S.
(2)A further parenting order under s 48 of the Act which provides that TWA shall have supervised access with S when S requests it.
(3)An order under s 27 of the Act appointing HC as an additional guardian of S. (That is to say, in addition to TWA.)
(b)The orders recorded in the preceding sub-paragraph have been transferred to the Family Court and are now subject to the jurisdiction of the Family Court notwithstanding any provisions contained in s 125 of the Care of Children Act 2004 and without need to exercise any power of transfer contained in s 127 of the Care of Children Act
2004.
Further orders, directions and observations
[31] Given the conclusions recorded at [30] above, the particular orders sought by
TWA in the originating application dated 20 March 2017 are dismissed.
[32] In further consequence the application by TWA for an order that HC answer interrogatories does not require consideration.
[33] I understand that matters already before the Family Court have been put on hold pending this decision. As will be apparent, there is now no impediment for the Family Court to proceed to deal with any matters that are before it, or which are brought before it.
[34] One particular issue in the Family Court apparently relates to applications more recently filed by HC in the Family Court. These are applications for a
parenting order in her favour; for a parenting order relating to TWA’s contact with S; for HC to be made an additional guardian of S; and for a change to the surname of S. TWA and Ms Attfield, for HC, advised that an issue has arisen under s 139A of the Act as to whether leave is required for HC to bring these applications. In respect of the first three applications (for the two parenting orders and for appointment of HC as an additional guardian), the question for leave, if HC wishes to proceed with the applications, and if leave is required for any one or more of them, will of course be a matter for the Family Court. I nevertheless observe that there now may be no need for HC to proceed with those applications. For the reasons discussed, the two parenting orders and the guardianship order are in force and are effectively permanent orders. They are subject to any application to revoke or vary the orders, but that would not seem to require a further application by HC.
[35] I sought comment from TWA and from Ms Attfield on any other matters that might be subject to directions. Because the proceeding before me is at an end there are no further directions required to be made in respect of the proceeding. Some of the matters referred to by TWA and Ms Attfield are matters for the Family Court and cannot be subject to directions from this Court. I nevertheless record some matters given emphasis:
(a) Both parties are concerned to proceed as expeditiously as possible to resolution of any outstanding matters relating to the guardianship of, the role of providing day-to-day care for, and contact with, S.
(b) TWA wishes to engage in mediation.
(c) TWA placed emphasis on s 52 of the Act:
If a Court proposes to make a parenting order that does not give a parent the role of providing day-to-day care for a child, the Court must consider whether and how the order can and should provide for that parent to have contact with the child.
(d)Towards the end of his submissions in reply TWA confirmed that his preference is that S stay in the day-to-day care of HC provided
possibilities of contact between S and TWA are optimised and TWA’s
guardianship rights are recognised.
[36] I make no order for costs.
Woodhouse J
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