Vickers v Chief Executive of Oranga Tamariki Ministry for Children
[2023] NZHC 2695
•27 September 2023
NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION,
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IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY
I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE
CIV-2023-442-25
[2023] NZHC 2695
UNDER the Care of Children Act 2004, ss 143(1)(a), (1)(b) and (1)(c) BETWEEN
VICKERS
Appellant
AND
CHIEF EXECUTIVE OF ORANGA TAMARIKI–MINISTRY FOR CHILDREN
First Respondent
AND
YORK
Second Respondent
AND
MILLS
Third Respondent
Hearing: 25 September 2023 Counsel:
Appellant in Person
A R Lyne for First Respondent
J C S Sandston for Second Respondent No appearance Third Respondent
N J Vallance, Lawyer for the Child
Judgment:
27 September 2023
JUDGMENT OF ISAC J
VICKERS v CHIEF EXECUTIVE OF ORANGA TAMARIKI–MINISTRY FOR CHILDREN & ORS [2023]
NZHC 2695 [27 September 2023]
Introduction
[1] On 20 June 2023, Mr Vickers filed a without notice application seeking to discharge custody and guardianship orders placing his daughter, Olivia, in the care of her maternal aunt and the Chief Executive of Oranga Tamariki.1 He also sought a parenting order placing Olivia in the joint care of he and his former partner.
[2] Judge Duggan struck out the application the same day on the basis that there was no evidence justifying a without notice urgent application, and that the application was an abuse of process because it duplicated an on-notice application Mr Vickers had already made a few months earlier.2
[3] Mr Vickers now appeals that decision. In essence, he says the Judge failed to consider evidence that Olivia has and is being subjected to psychological and emotional abuse, and failed to consider the paramount consideration: Olivia’s well-being and best interests.
[4] The appeal is opposed by Oranga Tamariki, Ms York (Olivia’s mother who is represented in these proceedings by a litigation guardian), and Ms Vallance, the lawyer for the child. The Court has also received affidavit evidence from Olivia’s caregivers opposing Mr Vickers’ applications to the Family Court.
Background
[5] Olivia was born on 8 January 2022. Almost immediately, concerns were raised by hospital staff and Ms York’s whānau about her mental health and ability to provide safe care to Olivia. These concerns were shared by other health professionals and members from Oranga Tamariki who subsequently met with her, and on 13 January Ms York was admitted to a mental health unit with a diagnosis of postpartum psychosis. It appears her mental health symptoms are connected with a serious brain injury she suffered in the United States in 2005.
1 The names in this judgment are not the parties’ real names but instead pseudonyms for the purpose of complying with ss 11B–11D of the Family Court Act 1980.
2 Vickers v York FC Nelson FAM-2023-042-44, 20 June 2023.
[6] The same day Judge de Jong granted an application by Oranga Tamariki for a s 78 interim custody order placing Olivia into the care of the Chief Executive. Shortly thereafter, Olivia was placed into the care of her maternal aunts and uncle, who have since cared for her in a whāngai arrangement.
[7] On 26 January 2022, Judge Walsh found Ms York met the criteria for an incapacitated person in terms of r 8 of the Family Court Rules 2002 and determined that it was appropriate to appoint a litigation guardian to represent her in these proceedings.3
[8] Fast forward to 22 December 2022, and Judge Russell discharged the s 78 interim custody order and made a range of orders and directions. In particular, the Court:
(a)made a custody order under s 101 of the Oranga Tamariki Act 1989 in favour of the Chief Executive;
(b)appointed the Chief Executive and Ms Mills (Ms York’s older sister) as additional guardians under s 110(2)(b) of the Oranga Tamariki Act;
(c)declared Mr Vickers, as a biological father, to be a guardian of Olivia under s 17 of the Care of Children Act 2004;
(d)approved the s 128 plan dated 21 November 2022 and directed a review after six months; and
(e)reserved leave for Mr Vickers to file applications in respect of the custody and additional guardianship orders, or in relation to additional access or parenting orders.
3 Mr Michael Vesty was appointed in that role on 13 April 2022: Chief Executive of Oranga Tamariki – Ministry for Children v York and others [2022] NZFC 3435 at [9(c)].
[9] On 16 February 2023, Mr Vickers applied on notice for a parenting order. Then, on 7 March, he applied on notice to discharge the custody order.
[10] On 6 June 2023, Judge Duggan conducted a review in relation to Olivia. Her Honour continued the custody and guardianship orders in favour of the Chief Executive, approved an updated plan dated 22 May 2023, and directed that further review documents be filed by 20 November.4 Importantly for current purposes, the Judge then made directions to advance Mr Vickers’ applications under the Care of Children Act for a parenting order, and to discharge the custody orders under the Oranga Tamariki Act. The directions included the allocation of a three-day hearing.
[11] On 20 June 20223, Mr Vickers and his former partner again applied to discharge the custody and additional guardianship orders and sought a parenting order in their favour, but they did so on a without notice basis. The grounds advanced were that:
(a)Oranga Tamariki has been violating Olivia’s rights under s 5 of the Care of Children Act (in relation to her access to and relationship with her parents); and
(b)Olivia is “in immediate danger of mental distress and harm to her mental well-being” while in Oranga Tamariki’s custody.
[12] The application was accompanied by an affirmation by Mr Vickers and his former partner. Amongst other things the affirmation recorded that:
(a)there had been “significant changes in circumstance” in terms of Olivia’s wellbeing after Mr Vickers’ parenting order application had been filed in February 2023;
(b)during contact visits, Olivia had been showing signs of distress and anxiety when Mr Vickers was out of her sight;
4 Oranga Tamariki v Vickers [2023] NZFC 6152 at [4]–[6].
(c)a number of contact visits had been cancelled;
(d)Mr Vickers and his former partner have “serious concerns that [Olivia] is already suffering distress and anxiety from the separation from her parents in Oranga Tamariki’s custody”.
[13] On 20 June 2023, Judge Duggan struck out the without notice application, noting that she had recently reviewed the matter and made directions to progress Mr Vickers’ on notice application for the same orders to a hearing. Her Honour said:
There is no evidence… in this new application that justifies this urgent application. The application is declined and struck out as it is a duplication of an application that is already before the Court (therefore is an abuse of process).
That is the decision Mr Vickers now appeals against.
[15] Subsequently, on 1 August 2023, Mr Vickers and his former partner filed another without notice application to discharge the custody order in favour of Oranga Tamariki and again sought a parenting order in their favour. Judge Russell declined to make an interim parenting order, instead placing the application on notice to be dealt with on the standard track, and consolidated all applications before the Family Court.5
Grounds of appeal
[16] Mr Vickers filed an amended notice of appeal dated 3 August 2023. The essence of the appeal is that new evidence which came to light following Judge Duggan’s judgment of 6 June 2023 indicated a serious risk to Olivia’s well-being and constituted a change of circumstances warranting an urgent without notice application. The Judge, Mr Vickers claims, failed to properly consider that new evidence along with a range of relevant mandatory considerations.
5 Vickers v York FC Nelson FAM-2023-042-44, 1 August 2023.
The amended notice of appeal raises the following grounds:
(a)the without notice application contains fresh and relevant information not before the Court at the time of the previous application, and is therefore not an abuse of process;
(b)the Judge failed to give appropriate weight to the evidence arising after 6 June 2023;
(c)it is in the interests of justice, and consistent with Olivia’s right to natural justice, for the Court to hear the application;
(d)the Judge failed to consider the mandatory considerations in ss 4 and 5 of the Care of Children Act;
(e)in doing so, the Court subjected Olivia to “further psychological and emotional abuse” under ss 9(2)(c), 10 and 11(1)(f) of the Family Violence Act 2018;
(f)the effect of striking out the proceeding was that Olivia’s safety could not be assessed;
(g)the Family Court has itself abused its own processes.
Consideration
[18] The appeal is brought under s 341 of the Oranga Tamariki Act and proceeds by way of rehearing. While this Court must reach its own view on the merits, the appellant bears the onus of persuading the Court that the lower court’s decision was wrong.6
[19] Mr Vickers’ application is governed by the Family Court Rules. Ordinarily, applications to the Family Court must be made on notice.7 The reason for this is that the principles of natural justice and fairness generally require that all sides have an
6 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
7 Family Court Rules 2002, s 218.
opportunity to be heard before a decision is made affecting their interests.8 However, those principles may carry less weight in certain situations, such as where there is an imminent risk of danger to a person. Accordingly, the Rules provide that applications under the Oranga Tamariki and Care of Children Acts may be brought without notice where the court is satisfied that the delay in making them on notice would or might entail serious injury, undue hardship, or risk to the personal safety of the applicant or any child of the applicant’s family, or both.9
[20] In Martin v Ryan, Fisher J observed that the making of an ex parte order is a “fundamental departure from the fundamental requirements of natural justice” that will only be countenanced “in special circumstances”. His Honour went on to identify five factors that will normally (though not invariably) be present before an ex parte order is justified. Those factors are:10
(a)There is a clear case on the merits.
(b)Irreparable injury will be occasioned if the application proceeds on notice.
(c)There has been no delay by applicant in bringing the application.
(d)The effect of order will be only brief and provisional.
(e)There are strong grounds for overriding conventional requirements of natural justice.
[21] The issue is whether the Judge was wrong to conclude that there is no evidence to justify bringing the application on an urgent without notice basis. For the reasons that follow, I am satisfied that her decision was correct.
8 Hawthorne v Cox [2008] 1 NZLR 409 (HC) at [40]; E v Chief Executive of the Ministry of Social Development [2007] NZCA 453, [2008] NZFLR 85 at [20]; and CLM v Chief Executive of the Ministry of Social Development [2011] NZFLR 11 (HC) at [31]–[32].
9 Family Court Rules, ss 220(1) and (2)(a)(i) and (ii); and 416H(b).
10 Martin v Ryan [1990] 2 NZLR 209 (HC) at 226–227.
[22] In support of the appeal and his contention that the application should be dealt with on a without notice basis because Olivia is being harmed, Mr Vickers pointed to three pieces of evidence.
[23] The first is Mr Vickers’ affirmation of 20 June 2023 in support of the without notice application. The affirmation contains no more than broad and unparticularised concerns and allegations. Like the Judge I find that it does not contain any evidence that could justify a without notice application.
[24] The second piece of evidence was Mr Vickers’ affidavit of 22 August 2023, and an accompanying video on Olivia at a swimming pool. The clip, which is 1 minute and 16 seconds in duration, was filmed by Mr Vickers’ former partner during a supervised contact session at a swimming pool as she, Olivia and a care supervisor waited for Mr Vickers outside the pool changing rooms. Mr Vickers’ submission is that the video demonstrates Olivia’s distress and anxiety when separated from her father. His written submissions record that Olivia shows “signs of mental distress and anxiety from the separation from her father multiple times”, evidenced by how she calls out “Papa, Papa” when she sees him emerge from the changing room.
[25] I have watched the clip and am unable to discern any signs of distress or anxiety. On the contrary, in my view Olivia appears calm and content in the video, and is happy to see her father when he emerges from the changing rooms. Nor is there anything in the accompanying affidavit, even if admissible, that would suggest a credible concern about Olivia’s wellbeing serious enough to justify a without notice application.11
[26] The final piece of evidence Mr Vickers relies on is an affidavit of Ms York’s sister-in-law, who together with Ms York’s brother and sister provide day-to-day care for Olivia. The affidavit records that supervised contact visits between Ms York and Olivia proved to be difficult at the sister-in-law’s home, and she describes one occasion
11 Oranga Tamariki opposed admission of the affidavit on the basis that it did not meet the requirements for admission on an appeal under r 20.16 of the High Court Rules 2016. Rather than deal with the question of admissibility as a preliminary matter, I have proceeded to consider Mr Vickers’ appeal in its best light and on the basis of the material he wishes to rely on. In doing so I should not be taken to suggest that the affidavit is admissible; on the contrary, I would have ruled that it is not given that it is not cogent of the issue for determination.
where Ms York is said to have plucked Olivia from her cot and then struggled to hand her to her sister-in-law despite Olivia “crying and reaching out”. Mr Vickers says this is evidence that Olivia is unsafe and supports his without notice application.
[27] The affidavit is dated 29 June 2023 and could not have been available to the Family Court when the decision under appeal was made. More fundamentally, having read the affidavit it does nothing to support Mr Vickers’ claims that the existing care arrangements are unsafe or dangerous. On the contrary, it suggests that difficulties had arisen with Ms York’s access at the caregiver’s home, so the location of those visits had to change. In addition, the deponent also suggests that Mr Vickers has been encouraging Ms York’s unhappiness about Olivia’s care, which has in turn made contact sessions more difficult.
[28] It follows that Mr Vickers has not adduced any credible evidence of harm to Olivia. On the contrary, I am inclined to accept Ms Vallance’s observation of a home visit on 7 September 2023 that Olivia’s caregivers are providing “an easy, open, loving relationship and atmosphere which Olivia appears to be thriving in”. They are also supportive of Mr Vickers’ ongoing contact with his daughter.
[29] Given the lack of any evidence that Olivia is at risk, or any other qualifying reason, the Judge was correct to find that there is no justification for the urgent without notice application. None of the five factors identified in Martin have been made out. While the usual consequence of such a conclusion would be to make the application on notice to interested parties, as the Judge observed, there already exists an identical application. A second duplicative application serves no additional purpose and is therefore an abuse of process. Accordingly, the decision to strike it out was proper and the appeal must be dismissed.
[30] I appreciate this will be a frustrating result for Mr Vickers, who understandably wishes to obtain a greater level of custody and care of his daughter. However, it is important that the proper processes are followed, and that everyone who has an interest in Olivia’s care is heard. Mr Vickers’ application will proceed to a substantive hearing and be determined following evidence and submissions. The resulting delay, while unfortunate, is necessary to achieve the best outcome for Olivia.
[31] Mr Vickers may also be better served focussing his energies on the substantive hearing of his application rather than bringing often repetitive interlocutory applications which lack merit.12 As Ms Vallance noted, doing so is unlikely to be in Olivia’s best interests and may well result in avoidable upset and difficulties for Ms York. It also gives rise to a concern that the Court’s processes are being misused.
Result
[32]The appeal is dismissed.
[33] I do not understand costs to be in issue but if they are, the parties have leave to file memoranda. I will then deal with the issue on the papers.
Isac J
Solicitors:
Crown Law, Wellington for First Respondent
Resolution Chambers, Nelson for Second Respondent Albion Chambers, Nelson for Third Respondent Neroli Vallance, Blenheim, Lawyer for Child
12 For instance, Churchman J dismissed Mr Vickers’ application for his former partner to be appointed as his McKenzie friend in a judgment of 10 August 2023 (see Vickers v Oranga Tamariki [2023] NZHC 2117). Despite this, Mr Vickers applied again on 19 September 2023 for essentially the same orders. I record, for Mr Vickers’ benefit, that ignoring decisions of the Court or bringing multiple applications seeking essentially the same relief is likely to amount to a misuse of the Court’s procedures.
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