W v Chief Executive of the Ministry of Social Development
[2016] NZHC 1282
•15 June 2016
NOTE: PURSUANT TO S 437A OF THE CHILDREN, YOUNG PERSONS, AND THEIR FAMILIES ACT 1989, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO 11D OF THE FAMILY COURTS ACT
1980. FOR FURTHER INFORMATION, PLEASE SEE COURT/LEGISLATION/RESTRICTIONS-ON-PUBLICATIONS.
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2016-404-56 [2016] NZHC 1282
IN THE MATTER of the Children, Young Persons and Their
Families Act 1989
BETWEEN
W Appellant
AND
THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT
First Respondent
H
Second Respondent
Hearing: 18 May 2016 Appearances:
Appellant in person
R Bowe for First Respondent
A Cooke for ChildrenJudgment:
15 June 2016
JUDGMENT OF BREWER J
This judgment was delivered by me on 15 June 2016 at 3:30 pm pursuant to Rule 11.5 High Court Rules.
Registrar/Deputy Registrar
Solicitors: Ministry of Social Development (Wellington) for First Respondent
Counsel: Dr Allan Cooke (Auckland) for Children
Copy to: Appellant in person
W v THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT [2016] NZHC 1282 [15
June 2016]
Introduction
[1] The appellant appeals the declaration of Judge RH Riddell made on
10 December 2015 that her children are in need of care and protection.1
[2] The appellant is the mother of six year old Kalinda2 and three year old Fortune.3 On 7 March 2014, shortly before Kalinda’s fourth birthday and when Fortune was nine months old, the Family Court, on a without notice application by the first respondent, ordered that the first respondent have custody of the children
under s 78 of the Children, Young Persons, and Their Families Act 1989 (“the Act”). The children have been in the first respondent’s custody ever since. For some two years they were in the care of a Barnardo’s caregiver. In the last month or so they have been in the care of whanau.
[3] At the time of seeking the custody of the children, the first respondent filed an application on notice for a declaration that the children are in need of care or protection.4 The appellant opposed the application. As I have said, Judge Riddell granted the application and made the declaration. Having made the declaration, Judge Riddell adjourned the proceedings for the filing of a plan.5 The intended purpose of the plan is to provide for the future care of the children. The finalising of the plan is on hold pending the outcome of this appeal. If I allow the appeal and set aside the declaration, then the practical effect will be that the children will be returned to the custody and care of the appellant.
Background
[4] The appellant comes from an abusive background. She was frank about that in her submissions to me. No-one should have had the experiences in childhood that the appellant endured. Unfortunately, those experiences have impacted on her
relationship with the children’s father and her parenting of the children.
1 Chief Executive of the Ministry of Social Development v [H] & W [2015] NZFC 10422.
2 Born 15 March 2010.
3 I am unsure of Fortune’s date of birth. Counsel for the plaintiff puts it as 30 May 2012, counsel
for the first respondent as 31 May 2012, and Judge Riddell as 13 May 2013. In an affidavit dated
20 November 2014, the appellant gives Fortune’s date of birth as 31 May 2013. Since the appellant is in the best position to know, I will take 31 May 2013 as Fortune’s date of birth.
4 Section 67.
5 Section 128.
[5] The appellant and the children’s father met in 2007. As at March 2014, Police had responded to 49 family violence occurrences associated with the appellant and 34 occurrences relating to the children’s father. The appellant obtained a protection order against the father in 2008 and he was arrested on a number of occasions for breach of that order. He was imprisoned for breaches of the protection order and for violence against the appellant. However, upon his release he continued to have contact with the appellant and the children. When further violence occurred, or the father refused to leave, the appellant would invoke the protection order and call the Police. To me, the appellant said this was her way of beginning to deal with the inter-generational violence which shaped her.
[6] The births of the children brought intensified involvement of support services. Child, Youth & Family (CYFS), social workers, Police, Maternal Mental Health, CADS, Plunket and the Family Safety Team were all involved.
[7] The children were taken into the custody of the first respondent on 7 March
2014 because Judge Riddell was satisfied that they were in need of care or protection at that time.
The case on appeal
[8] The appellant is self-represented. Her submissions are to the effect that the Judge made findings of fact which were not available to her on the evidence. Essentially, the appellant told me that the Judge “got it wrong” by accepting uncritically the evidence called by the first respondent.
Approach on appeal
[9] Pursuant to s 341 of the Act this is an appeal by way of rehearing. That means that I must make my own assessment of the merits of the case. The appellant has the onus of satisfying me that I should disagree with the outcome reached by Judge Riddell. That is to say, the onus is on the appellant to persuade me on the balance of probabilities that the Judge made material errors upon which I should conclude that the declaration should not have been made.
The arguments
[10] The sole issue for Judge Riddell was whether the Court should make a declaration that the children are in need of care and protection in terms of s 14(1) of the Act. That section relevantly provides:
14 Definition of child or young person in need of care or protection
(1) A child or young person is in need of care or protection within the meaning of this Part if—
(a) the child or young person is being, or is likely to be, harmed (whether physically or emotionally or sexually), ill-treated, abused, or seriously deprived; or
(b) the child’s or young person’s development or physical or mental or emotional well-being is being, or is likely to be, impaired or neglected, and that impairment or neglect is, or is likely to be, serious and avoidable;
…
[11] The Judge discussed the issue under the headings of: (a) Domestic violence;
(b) Alcohol abuse; (c) Poor parenting;
(d) Lack of engagement with professionals; and
(e) Mental health.
[12] After traversing the evidence under each of these headings, the Judge was satisfied that Kalinda and Fortune were in need of care and protection. She placed particular emphasis on the appellant’s poor parenting and mental health:
[134] In the meantime this mother’s personality disorder prevents her from being able to safely parent these two young children in the here and now. If the children were returned to their mother’s care, I have no doubt that she would be overwhelmed by the demands of parenthood and, although domestic violence and alcohol may not feature in her presentation, she would still be unable to safely parent both children. Locking the children’s
doors, allegedly giving Kalinda, then aged two, alcohol to help her sleep, her conflicted relationships with other adults and her inability to take advice all combine to suggest that over the years to come, this mother would not be able to parent her children again.
[13] The appellant’s ultimate point on appeal is that the evidence, on a critical reading, does not show the children to be in need of care and protection. I now discuss the appellant’s case in greater depth and with reference to the Judge’s factual findings under each of these headings.
Domestic violence
[14] Judge Riddell discussed the long history of violence between the appellant and her former partner, the children’s father. The Judge recorded that the appellant acknowledged the extent of the domestic violence and agreed that she had been recommended by various professionals to leave her former partner. She found that difficult to do and acknowledged that at times she let him return to her home. But the Judge did observe that the pattern of violence between the appellant and her former partner is unlikely to be repeated now that the relationship is over.
[15] The appellant makes three key points in respect of the Judge’s factual
findings in respect of violence:
(a) That she has been marked by the same brush as the father and therefore prejudiced by his violence.
(b)That she has been unfairly judged for the way she used a protection order she obtained against the father.
(c) That there were safety plans in place to protect her and the children.
[16] The appellant objects to a number of passages in the judgment that, she says, show her to be tarnished by the violence of her partner. First, the appellant “objects in the extreme” to the following paragraph:
[126] The social workers and police have been engaged with this family since Kalinda was born in 2010. The Family Safety Team, managed by police, only takes cases involving serious threats to safety from family
violence and where there is non engagement with support agencies by the family at risk. Kalinda and Fortune’s parents met this criteria, yet despite the high level of support, police described their involvement as “ineffective”. They put that down to the appellant’s apparent inability to rationally engage over the years.
[17] The appellant says that their support was based on a mother that willingly engaged with the Police, particularly the Family Safety Team. The appellant argues that this is an example of professionals marking her with the same brush as her former partner.
[18] The appellant objects to her family being referred to in the judgment as being in the top ten in New Zealand for domestic violence.6 She argues that her former partner is to blame for this and that she should not be prejudiced as a result.
[19] As a further example, the appellant refers to a paragraph in the affidavit of
Rahmon Gude which reads:
On 15 May 2012 [Family Safety Team] members were undertaking a home visit to [the appellant’s] parents address in regards to [the father] being bailed there at that time. One of his conditions was not to associate with [the appellant]. However, [the father and the appellant] had not been strictly adhering to this condition.
The appellant argues that she is under no obligation to adhere to another person’s bail conditions. This is another example of her being unjustly prejudiced by the violence of her former partner.
[20] The appellant then refers to the protection order that she obtained against her former partner. That protection order allowed her former partner to associate with her provided she gave him express consent to do so. The appellant argues that given the protection order allowed her to maintain contact with her former partner, she should not be criticised for having done so.
[21] The appellant also strongly contended that there were safety plans in place agreed between her and CYFS. The Judge said:7
6 See the judgment at [13].
The appellant consistently referred to a Safety Plan of December 2013. Yet there is no record of any such Plan either in CYRUS notes or documentary evidence of a Plan. Her “proof” of such a Plan was reference to CYFS paying for child care which seemed illogical to me. If the payments were part of any Plan, there would be evidence of that.
[22] The appellant objects to this paragraph. She argues that it is unlikely CYFS would feel obligated to make the payment unless there was a plan of some kind attached to it. She says that it is also unlikely that CYFS would have formed a plan over the Christmas holidays so it must have been in place before that time.
[23] The appellant, in her affidavit, says that she attended a meeting with CYFS on 20 December 2013 where a safety plan was put in place. She sought a copy of the plan from Family Safety Team and CYFS. Neither could provide her with any copy. The appellant relies on a text message from Dr Leland Rushiu of CYFS:
[W] I spoke with appropriate staff and they said your lawyer could ask for all your info on our files by requesting a POI. The current supervisor of Suminatra Tano is following up on an information request, however the department and the Lawyer for child have indicated that your pursuit of a copy of the support plan will have little bearing on the orders forwarded to the court! Just letting you know that yes CYF might well have to account for the lost safety plan! But its relevance to orders around child care is minimal if that! Take care Dr Leland A Rushiu
[24] The appellant asks the Court to take into account this text message as evidence that there was a safety plan in place. She further argues that the fact CYFS has kept no evidence of this plan demonstrates that they have not taken the agreement seriously.
[25] Accordingly, in sum, the appellant disputes that the children were, at the time of the uplift, in need of care and protection because of violence concerns. The appellant’s ability to care for the children should not be questioned on the basis of her former partner’s violence and, in any event, there were measures in place to protect the children from that violence.
[26] In response, the Chief Executive of the Ministry of Social Development (MSD) stresses the impact of domestic violence on the children. MSD notes that Kalinda was associated with 13 family violence episodes and Fortune with six.
MSD submits that the appellant has demonstrated no understanding of the effect exposure to domestic violence has had on the children.
[27] In my view, the appellant has not been unfairly prejudiced by any evidence of domestic violence. I find it significant that in reaching her decision, Judge Riddell said “although domestic violence and alcohol may not feature in her presentation, [the appellant] would still be unable to safely parent both children”.8 The Judge also acknowledged that the appellant’s relationship with the father is over and that the pattern of violence was unlikely to be repeated.9 I am satisfied, therefore, that when making her decision, the Judge adopted a forward-looking approach and did not focus on the history of domestic violence. As a result, nothing in the Judge’s discussion of “domestic violence” gives me reason to intervene on appeal.
Alcohol
[28] The Judge discussed the appellant’s history of alcohol abuse including the fact that she drank alcohol while pregnant with Fortune. The appellant had rejected that she was intoxicated on many of the occasions chronicled in the judgment but the Judge found her explanations unconvincing. The Judge noted that the appellant claims to have been alcohol free since February 2014 when she was baptised as a Mormon.
[29] The appellant objects to any suggestion that she was abusing alcohol at the time of the uplift. She also objects to the Judge saying that the domestic violence was often fuelled by alcohol abuse.10
[30] The appellant takes issue with the following paragraph in the judgment:
[39] On another occasion the police attended an incident on 8 August
2013 involving the appellant and they described her as “highly intoxicated”.
The affidavit noted the incident occurred at 10.14pm and:
An informant had called police and advised that [the appellant] had left Fortune on the informant’s property having asked the informant to take him. [The appellant] then left the address.
8 At [134].
9 At [122].
She later returned to the address while the police were there. Police were unable to get any explanation from [the appellant] – in regards to leaving Fortune with the neighbour, due to her high level of intoxication.
[31] The appellant says that she left the children with a responsible grandparent and this does not amount to evidence of neglect.
[32] In its submissions under this heading, MSD details a number of instances where the appellant has confirmed that she abused alcohol in the past and admitted that she consumed alcohol while pregnant.
[33] In my view, there is nothing in the evidence discussed under the heading of “alcohol” that has prejudiced the appellant’s case. It is common ground between the parties that the appellant abused alcohol in the past. Importantly, the Judge did not make a finding that the appellant was abusing alcohol at the time of the uplift, which seemed to be the main point advanced by the appellant on appeal under this heading.
[34] I repeat the comment the Judge made that “although domestic violence and alcohol may not feature in her presentation, [the appellant] would still be unable to safely parent both children”.11 It appears the Judge did not place much emphasis on the appellant’s previous alcohol abuse when making her ultimate decision.
Poor parenting
[35] The Judge went through a number of allegations that had been made against the appellant of poor parenting:12
(a) That the appellant padlocked the children in their bedroom. (b) That Fortune’s cot was unsafe and that he had fallen out of it.
(c) That the appellant had ignored professional advice and put an electric
blanket on Fortune’s bed.
(d)That on one occasion the appellant had offered to pay an eleven year old to babysit one year old Kalinda; left medication on the floor in her bedroom within easy access to either Kalinda or other children; stored soiled nappies in her clothing drawers in her room; and appeared unconcerned about the whereabouts of Kalinda.
[36] The appellant addresses the evidence about locking the children in their bedrooms. She says she misunderstood advice given to her by the police which was to lock herself and the children in a bedroom if a violent offender entered the house. The advice followed an incident where a male entered the appellant’s property and did not leave when asked to. The appellant bit the male on the hand. She says the incident gave rise to an intense desire to protect the children. She thought providing a padlock on the outside of their door was a good way to achieve that.
[37] It is significant that the appellant does not dispute that she padlocked the children in their bedroom. Her point is that she misunderstood a police suggestion. The appellant says that the misunderstanding came from ambiguous police advice. But the fact that the appellant construed the advice in this way does tend to show a lack of insight into what constitutes responsible parenting.
[38] The appellant did not directly challenge the remaining three examples that the Judge cited as instances of poor parenting. Instead, she pointed to other evidence showing her to be an attentive and caring parent.
[39] She refers to a tax invoice for education Fortune received at a pre-school. The tax invoice provides specific dates and times showing when Fortune attended the pre-school. The invoice discloses that the appellant was never late to drop off or pick up the children from pre-school.
[40] The appellant also provided in her evidence certificates showing that she has completed two parenting courses: the first is a parenting course entitled “The Early Years” and the second is a course run by the Auckland Kindergarten Association entitled “The Incredible Years Parent Programme: Preschool Basic”.13
[41] Finally, the appellant stressed to me at the hearing the importance of the maternal bond that exists between her and the children. She argued that there was no adequate substitute for the love of a mother and that proper weight must be given to this when assessing her fitness to look after the children.
[42] In response, MSD cites a number of further examples of poor parenting and questions whether the Court should place any weight on the parenting courses. In relation to the parenting courses, MSD argues that the appellant has not provided evidence showing what she was taught, what she learned, how that learning was tested and how the Court could be satisfied that any lessons learned would actually be used.
[43] Regrettably, I think the evidence does tend to show that the appellant will be severely challenged in meeting the needs of the children. Whilst the appellant’s commitment to her children cannot be denied, I find there to be several credible accounts of the appellant’s poor parenting. In addition to the incidents referred to above at [35]:
(a) On 15 May 2012, after members of the Family Safety Team advised the appellant that she could not stay at an address where the father was being bailed, the appellant woke a sleeping Kalinda, put her in a pushchair and announced an intention to walk her home (a distance of approximately four kilometres). The walk would have exposed Kalinda to cold and showery weather. It appeared to the Family Safety Team that the appellant was not able to enter into a rational discussion about putting the needs of her daughter above her own impulsive decision to leave with Kalinda, in spite of everyone’s
concerns of Kalinda being exposed to the cold and showery weather.14
(b)A neighbour stated that most Sundays she saw the children playing along outside the front of the house, which was not fenced off from the road. The neighbour did not know where the appellant was during
these times. On one occasion, the neighbour witnessed a vehicle stop to pick up Kalinda from the road and take her back to the house.15
(c) The appellant repeatedly over-fed her children during supervised access to the point they were physically ill. This was despite being told many times that the children could not handle the amount of food she was giving them.16
(d)Allowed a homeless person to live in her garage while the children were living with her. Subsequently the police discovered drug utensils and pills in the garage.17
[44] None of these incidents taken in isolation is sufficiently concerning to declare that the children are in need of care and protection. But the evidence does show a pattern. It tends to demonstrate that the appellant has, on occasions, a compromised insight into proper parenting practice. That being said, I acknowledge the efforts the appellant has made in improving her parenting skills and take these into account.
Lack of engagement with professionals
[45] Before Judge Riddell, CYFS alleged that the appellant consistently failed to engage with professionals who were trying to assist her in the care of the children between 2010 and March 2014. For example, CYFS alleges that the appellant:
(a) Disengaged from SHINE (Family Violence Service) and stopped attending her booked appointments when she was about to give birth to Kalinda.
(b) Did not follow a plan agreed to at a family group conference on
22 June 2010.
(c) Moved address on 8 June 2011 and provided different addresses to
CYFS and other agencies.
15 Affidavit of Rahmon Gude dated 7 August 2014 at [8.16].
16 See below paragraph [56].
17 Confirmed by the appellant in cross-examination: Notes of Evidence, 260-261.
[46] The appellant denied the allegations that she disengaged from professional services. She maintained that she had an excellent relationship with her Plunket nurse and had always continued involvement with various professional agencies.
[47] After considering the competing positions under this heading the Judge concluded:18
It may be difficult to be precise about whether this allegation had any foundation, given the mother’s strong denials. However, the professional records are specific as to the dates and times that the mother appeared to disengage. On balance I prefer the evidence of professionals.
[48] The appellant maintains on appeal that she did engage with professional advice. She willingly engaged with a Plunket nurse. She says the fact she chose to engage with the Plunket nurse and then did not follow her advice on certain occasions should not be used against her. Rather her interaction with Plunket is evidence that she was in fact actively engaging with professional advice.
[49] Further, the appellant says she was coerced into making the plan agreed to at the family group conference on 22 June and that is why she did not follow it. She said in cross-examination that she was coerced into making the plan by the offer of two hours access to the children every fortnight.19
[50] After reviewing the evidence, I am persuaded that the appellant has, at times, disengaged from professional services. That is not to say that the appellant has failed to seek and engage with professional advice and help. That is clearly not the case. I note, for example, a letter from the appellant’s midwife that shows the appellant to have diligently engaged with midwifery/obstetric care. Similarly, a Plunket report dated 14 April 2014 shows prolonged and consistent contact between the appellant and the Plunket nurse. But the evidence does tend to show that the appellant has been inconsistent in her engagement with professional advice and
selective in the advice she chooses to follow. By way of illustration, the appellant:
18 At [66].
19 Notes of Evidence, 304-305.
(a) On 2 August 2012 sent the Family Safety Team a text message advising them that they have ‘had their third strike and they are now out’; she said she will not be answering the door any more to the FST. She advised that the FST must stay away from her home or else she will issue a Trespass Order.20
(b)On 17 May 2013 failed to follow advice from a Plunket nurse to remove an electric blanket from Fortune’s bed.21
(c) As recently as 22 July 2014 advised the Family Safety Team that she would not report incidents of family violence or use her protection order because that is what has led to the children being taken into care.22
(d)Repeatedly ignored advice that she was over-feeding the children during supervised access.
[51] The evidence shows a pattern of conditional engagement. As Mr Gude puts it in an affidavit dated 7 August 2014:23
[M]eaningful engagement has generally been limited to the FST [Family Safety Team] either having to agree with [the appellant’s] perspective of events and activities, or else having [the appellant] almost immediately threaten to disengage, or actually disengage, from any future interactions (for a period of time) if the FST has challenged or disagreed with her on anything that she has said or done.
Accordingly, I do not think the Judge erred when she found that the appellant has, from time to time, disengaged from professional services. I do not overlook, however, the evidence showing the appellant to have made a concerted effort to
engage with professional services in an attempt to improve her parenting skills.
20 Affidavit of Rahmon Gude dated 7 March 2014.
21 Letter of Rose Clarke, Clinical Leader of Mangere East Plunket dated 14 April 2014.
Appellant’s mental health
[52] The appellant was diagnosed in March 2010 as having “a Personality Disorder Not Otherwise Specific with affect dysregulation”.24 In a report prepared for the Family Court in accordance with s 178 of the Act, registered psychologist, Kate Burke, describes a personality disorder in the following terms:25
Those diagnosed with a Personality Disorder are assessed for difficulties in cognition, emotiveness, interpersonal functioning and/or control of impulses that cannot be accounted for by another mental disorder; by effects of drugs or medication or by the effects of a medical condition such as head injury.
She explained the diagnosis of “Not Otherwise Specified” as follows:26
Not Otherwise Specified refers to the classification system used and denotes that [the appellant] does not meet the criteria used to make specific distinction around the traits present in the cluster of Personality Disorders. Specific presentations of symptoms are used to classify a type of personality disorder; for example, Obsessive Compulsive Personality Disorder or Narcissistic Personality Disorder.
[53] The appellant has responded to this diagnosis in various ways:
(a) In an affidavit dated 13 March 2014 the appellant stated that her doctor asked Maternal Mental Health to provide her with some assistance. It could not do so unless it diagnosed her with something. The appellant states that the diagnosis was “low grade for the purpose of paper work”.
(b)In an affidavit dated 20 November 2014 the appellant accepted that she has a personality disorder “which can make life difficult for others” and that her “communication can be overly persistent and can offend people”. She stated in the same affidavit, however, that she was “mentally well” and her ability to safely care for the children had
not been affected.
24 The appellant was assessed and diagnosed in March 2010 by a consultant psychiatrist to
Maternity Mental Health, Dr Helen Cooney.
25 At [6.25].
(c) In an affidavit dated 12 May 2015, the appellant claimed that her mental health had been assessed by a Dr Bunting and that there was nothing wrong with her.
[54] In making factual findings as to the appellant’s mental health, the Judge relied on evidence given by Ms Burke. Ms Burke expressed in cross-examination that she was adamant the original diagnosis still applied to the mother. Ms Burke also provided to the Court a comprehensive report running to 17 pages, which concluded that the appellant had “damaged capacities for parenting”. Ms Burke cites expertise in:
(a) the assessment of children, young persons and their families; (b) adults’ parenting skills and styles; and
(c) the impact of conflict and relationship dissolution on children. In preparing the report, she:
(d) conducted extensive interviews with the appellant; (e) witnessed the appellant interacting with the children;
(f) had regard to data gathered by CYFS, Maternal Mental Health
Services and Te Aho Tapu Trust; and
(g)had access to GP’s and Psychiatrist’s medical assessments of the appellant’s health.
[55] In the report, Ms Burke said “there is uncertainty about whether [the appellant’s] diagnosis of a Not Otherwise Specified Personality Disorder prevents her from being able to be a safe parent for the children”.27 She concluded, however, that her “brief assessment of the children’s needs indicated that [the appellant’s] damaged capacities for parenting could not support the best and achievable outcomes
for Kalinda and Fortune”.28 Ms Burke considered that the appellant would be
“severely challenged in meeting the needs of these two particular children”.29
[56] The Judge referred to a number of instances that she considered show the appellant’s mental disorder in action. The Judge noted that the appellant repeatedly over-fed her children when attending supervised visits of the children. The appellant was told repeatedly to reduce the amount and type of food given to the children at contact visits, because they were feeling sick and had complained to their supervisor of painful and swollen stomachs after the visits ended. The appellant did not seem to understand that her actions were inappropriate and that she had brought far too much food for such young children.
[57] The Judge also chronicled a number of exchanges where the appellant behaved angrily and threateningly towards professionals after the children were uplifted. The Judge considered that the appellant’s inability to moderate her tone in dealing with professionals was further evidence of the personality disorder in action.30
[58] Finally, the Judge observed many examples of what she described as “exaggeration and inconsistent thinking in the appellant’s evidence which may or may not be explained by her personality disorder”.31
[59] The appellant’s argues on appeal that there is no evidence to support the conclusion that she has a personality disorder and that it was improper for the Judge to prefer Ms Burke’s evidence over a diagnosis from a Dr Basil Bunting, concluding that the children will be safe in her care. That evidence is in the form of a letter from a social worker at the Cottage Adult Mental Health Services in Otahuhu, Auckland. It reads:
To whom it may concern:
I am writing this letter to inform you that [the appellant] was assessed on the
03/03/15 by Dr Basil Bunting at the Cottage Community Mental Team.
28 At [6.35].
29 At [6.35].
30 The Judge details eight examples at [102].
31 At [93]-[101].
The following are conclusions:
Safety, risks and self-care:
There are no current safety concerns regarding her behaviour with her children, or concerns with self-care. She is safe to look after her children.
Plan/Recommendations:
· Refer to GP for follow-up
· No change to medication
·Arrange increased support for [the appellant] with her children and increase her visitation rights with her children.
Yours sincerely
[Social Worker]
[60] The appellant refers to an incident that she says calls into question the credibility of Ms Burke’s assessment. When giving evidence at the hearing, a social worker, Heather Lamb, described an incident occurring during an access hour where Ms Burke abruptly removed food that the appellant had brought for her children. Ms Lamb described the incident as embarrassing and said that she felt embarrassed for the appellant because it happened in front of the children.
[61] The appellant describes the incident as an act of “violence”. She considers it hypocritical that the Judge focussed on the violence in her life but did not place any weight on the “violent” behaviour of Ms Burke. She says this is a reason to prefer the evidence of Dr Bunting.
[62] While I acknowledge that Ms Burke may have acted in a high-handed manner, I do not think this incident provides a reason to prefer the evidence of Dr Bunting. Before the incident the appellant had been told repeatedly that she was over-feeding the children. Ms Burke told the appellant that the children’s stomachs were not big enough for the amount of food she was feeding them. She asked the appellant to pack the food away and finally intervened when the request was ignored. Intervention was needed and on the evidence of both Ms Burke and Ms Lamb the contact continued without further tension. The incident is not reason to doubt the reliability of her report.
[63] I do not overlook the appellant’s affidavit dated 27 November 2014 in which she objects to a number of passages in Ms Burke’s report and to Ms Burke’s general demeanour. I accept the appellant’s submission that the report needs to be weighed against her efforts to improve her parenting skills.
[64] In my view, the Judge was entitled to disagree with Dr Bunting’s conclusion that there were no safety concerns regarding the appellant’s behaviour with her children. As the Judge said, the letter makes no mention of the diagnosis of the personality disorder and it does not detail the extent of the assessment which was carried out, or whether other medical notes were available to Dr Bunting (who was
not called to give evidence).32 The lack of detail in the letter and the weight of
contrary evidence means the Judge was entitled to disagree with Dr Bunting’s
conclusion.
Decision
[65] The appellant has not satisfied me on the balance of probabilities that I should disagree with the outcome reached by Judge Riddell. I have looked at the evidence and considered the careful and detailed judgment of Judge Riddell. I find myself in agreement with the Judge. Looking at the appellant’s position overall, her children were in need of care or protection. A plan now has to be put in place to further their best interests and to provide for structured contact with the appellant (if that is feasible).
[66] The appeal is dismissed.
Brewer J
32 At [72].
0
0
1