FRYE v CHIEF EXECUTIVE OF ORANGA TAMARIKI [2022] NZHC 2976

FRYE v CHIEF EXECUTIVE OF ORANGA TAMARIKI [2022] NZHC 2976 [14 November 2022]NOTE: PURSUANT TO S 437A OF THE ORANGA TAMARIKI ACT 1989,ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11CAND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHERINFORMATION, PLEASE SEEhttps://www.justice.govt.nz/family/about/restriction-on-publishing-judgments/IN THE HIGH COURT OF NEW ZEALANDPALMERSTON NORTH REGISTRYI TE KŌTI MATUA O AOTEAROATE PAPAIOEA ROHECIV-2021-454-67[2022] NZHC 2976UNDER the Oranga Tamariki Act 1989, s 341(2)BETWEEN KENDRA FRYEAppellantAND CHIEF EXECUTIVE OF ORANGATAMARIKI – MINISTRY FORCHILDRENRespondentHearing: 25 October 2022Appearances: Appellant in person, with "McKenzie friend"L Jackson and A Lyne for the RespondentR Fuata'i Lawyer for the ChildJudgment: 14 November 2022Reissued: 28 November 2022JUDGMENT OF GWYN JIntroduction[1] In August 2020 the Family Court made substantive orders determining custodyand guardianship arrangements for Jordan, who is the son of Ms Frye, the appellant.11 Chief Executive of Oranga Tamariki v Frye [2020] NZFC 6519 [2020 decision].In June 2022 the Family Court dismissed Ms Frye's application to discharge thoseorders.2[2] Ms Frye appeals that dismissal.3Background[3] Jordan, the child at the centre of this proceeding, was born in 2012. Theapplicant (Ms Frye) is Jordan's mother.[4] Jordan is the eldest of Ms Frye's children. His younger brothers are Damian,Brett and Ed, born between 2015 and 2018.[5] Jordan and Damian are half-brothers. Jordan's father died in 2014. Damian'sfather is largely estranged, but Damian lived with his paternal grandparents from whenhe was six months old until he was returned to his mother's care after the 2020decision. Jordan lives with a caregiver in City A, where he was placed when he wasfour years old.[6] Brett is a full brother of Damian. Brett and Ed are both in their mother's care.[7] On 23 September 2014 Jordan was removed from Ms Frye's care pursuant toa temporary care agreement entered into under s 139 of the Oranga Tamariki Act 1989(Act). This followed seven reports to Oranga Tamariki, between June 2013 andSeptember 2014, relating to Jordan's safety and wellbeing in Ms Frye's care. Thereports related to Ms Frye's mental health, her smacking of Jordan, bruising found onJordan, and Ms Frye not complying with a safety plan.[8] Jordan was initially placed with a caregiver (Pat) and remained in her care foreight months pursuant to the temporary care agreement and then an extended careagreement. Jordan was cared for by Pat from September 2014 to August 2017 whenhe was transitioned into the care of Caroline on the basis that that placement would be2 Chief Executive of Oranga Tamariki v Frye [2022] NZFC 5108 [2022 decision].3 The Court has granted Ms Frye leave to appeal the 2020 decision out of time, insofar as it isnecessary to consider the 2020 decision in order to consider the 2022 decision.permanent. Caroline had previously been Jordan's kindergarten teacher. Jordanremains in Caroline's care with Pat providing after-school and respite care.[9] In March 2015 Jordan began overnight access visits with Ms Frye and her then-partner, Damian's father. During an overnight visit in April 2015, Jordan wasseriously injured. In April 2015 a report of concern was made by a doctor whoexamined Jordan. Jordan's injuries were assessed by the Child Protection Team at thehospital and found to be "concerning for inflicted injury".[10] On 7 May 2015 Oranga Tamariki applied without notice, and was granted, atemporary custody order and a declaration that Jordan was a child in need of care andprotection. Jordan has remained in the custody of the Chief Executive of OrangaTamariki (Chief Executive) since then. On 3 September 2015 a custody and additionalguardianship order were made by consent.[11] On 7 August 2015 Ms Frye was charged with assault on Jordan and wasconvicted of that charge in May 2016. Ms Frye appealed the conviction which wasquashed in August 2016. Although it was not determined who caused the injuries toJordan, the Family Court accepted that Ms Frye did not cause the injuries.4[12] During this period, Ms Frye gave birth to Damian and Brett. Damian wasremoved from Ms Frye's care five days after he was born and placed in the care of hispaternal grandparents. Brett has remained in Ms Frye's care since birth, initially undera support order, which was discharged on 28 August 2018.[13] On 14 March 2017 Ms Frye applied to discharge the custody and additionalguardianship orders with respect to both Jordan and Damian. She sought their returnto her care following the work she had undertaken to address the care and protectionconcerns.[14] In late 2018 Ms Frye had another child, Ed. Ed has remained in Ms Frye's caresince birth.4 2020 decision, above n 1 at [8].Current arrangements[15] The following court orders are in place in relation to Jordan. Both orders arein favour of the Chief Executive, under the Act:(a) Section 101 custody order, dated 3 September 2015; and(b) Section 110(1)(a) & (2)(b) additional guardianship order, dated28 March 2017.(the orders)[16] The current access arrangements are:(a) Ms Frye has supervised access in the second week of the schoolholidays; access is over two days for 2.5 hours per day; that time canincrease for up to four hours if the supervisor has capacity to do so.(b) Supervision is provided by the Open Home Foundation and accessreports are provided at the end of each session. Caroline travels toCity B with Jordan for the visits. Alternative arrangements are made ifshe is not available.The decisions under appeal[17] As noted, there are two relevant decisions.The 2020 decision[18] Ms Frye's application to discharge the orders was heard during an eight-daydefended hearing in the Family Court, from 6 to 17 July 2020. Judge Moss dismissedthe application with respect to Jordan, who has remained in the care of Caroline, butgranted the application with respect to Damian. Damian returned to Ms Frye's care inDecember 2020.55 2020 decision, above n 1.[19] Judge Moss concluded:6On balance, bearing in mind that the Court's role is to discharge the care andprotection orders if care and protection concerns no longer exist and thereforethat the child's wellbeing and interests are promoted, I consider that thedischarge of the Oranga Tamariki orders will expose [Jordan] to a care andprotection risk, because the risk that his mother cannot cope with parentinghim fulltime, whether as one of three or as one of four, is tangible, welldefined, based in some of the mother's history and rendered more visiblebecause if [Jordan] returned to his mother's care, his loss in terms of arelationship with his foster mother would be profound. In this way, the Courtplaces significant value on the quality of [Jordan]'s placement, and the realitythat he carries with him the vulnerability which arises from adverse childhoodexperience summarised above.[20] Having come to that conclusion, the Judge declined to discharge the orders inrelation to Jordan.[21] In relation to access, under a s 128 plan, Jordan was to have contact with hismother and brothers (who live in City B) every third weekend, for one week everyschool holiday, and three weeks during the Christmas holidays.7The 2022 decision[22] The contact regime referred to at [21] above was in place for several months,but on 12 March 2021 Oranga Tamariki received a report of concern from Ms Frye'spsychologist, Ms V. Ms V reported emotional harm being caused to Jordan by Ms Fryeduring contact. As a result of this and of Jordan's individual counselling treatment,Ms Frye's access with Jordan was limited to the supervised access detailed at [16]above.[23] On 8 October 2021 Ms Frye filed an application for access. On 20 December2021 Ms Frye also filed a notice of intention to appear, opposing the s 128 plan thatOranga Tamariki sought to be approved for Jordan. Ms Frye considered the planshould provide for Jordan to return to her care, when, in her view, the plan was madeon the basis that there was no realistic prospect of Jordan's return home.6 At [198].7 At [188]-[190].[24] On 12 October 2021 Ms Frye also filed a notice of appeal in this Courtappealing the 2020 decision. Judge Moss heard Ms Frye's applications on 24 May2022 in the Family Court. On the morning of the hearing Ms Frye made an oralapplication to discharge all orders under the Act. In her judgment of 20 June 2022,Judge Moss dismissed that application.8 The Judge stated, "[t]here is no new evidencewhich would lead to a different conclusion".9Approach on appeal[25] This is an appeal under s 341 of the Act. It is a general appeal by way ofrehearing.10 This Court must make its own assessment of the merits.11 That meansI must come to my own conclusion, based on the evidence heard by the Family Court(and any further evidence admitted on appeal).[26] It is for Ms Frye, as the appellant, to persuade this Court to reach a differentconclusion than the Family Court.12 This Court can take into account any particularadvantages enjoyed by the trial court,13 including the court's assessment ofwitnesses,14 and any specialist expertise held by that court.15Further evidence[27] At the hearing before me Ms Frye sought to introduce further evidence, in theform of two "access reports" and a text exchange. The access reports relate toMs Frye's access to Jordan on 12 October and 13 October 2022 and were prepared byher friend, Ms T, who was present during the access. Ms Frye says the evidence isrelevant because the access reports, taken together with evidence about the three-weekperiod over the Christmas holidays 2020/2021 when Ms Frye had all four of her boyswith her, shows her ability to cope with all of her children. Ms Frye says the reportsand the texts also demonstrate that her social worker did not supervise the access on8 2022 decision, above n 2.9 At [26].10 Oranga Tamariki Act 1989, s 346; High Court Rules 2016, r 20.18.11 Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [31]-[32].12 M v Chief Executive of Oranga Tamariki [2019] NZHC 717 at [47].13 At [48].14 Green v Green [2016] NZCA 648 at [31].15 D v S [2003] NZLFR 83 at [19]; SLB v Ministry for Children, Oranga Tamariki [2020] NZHC1129 at [29]; MC v Chief Executive of Oranga Tamariki [2020] NZHC 50 at [16].12 and 13 October, from which the Court can infer that the social worker did not thinksupervision was required.[28] Ms Jackson for the Chief Executive and Ms Fuata'i, lawyer for the child,opposed the introduction of further evidence. They say the issue of further evidenceon appeal was previously considered by Cooke J, in the context of an application bythe Chief Executive to adduce further evidence, which was opposed by Ms Frye.Ultimately, the Chief Executive did not pursue the application.[29] The respondent and the lawyer for the child submit that, if this Court were touphold Ms Frye's appeal, then the appropriate course would be to remit the matterback to the Family Court for rehearing. At that point, the Family Court could receiveany further, updating evidence, from all parties.[30] I indicated to Ms Frye my preliminary view that it was not appropriate tointroduce further evidence at this stage. Having considered the evidence put forward,I now confirm that view. The evidence post-dates the decisions appealed from. Tothat extent it is not directly relevant to the issues I have to consider. Nor have therespondent and the lawyer for the child had an opportunity to respond to it, as theymight have done if Ms Frye had made her application earlier. In the absence of anyresponse to the proposed evidence, the Court cannot adequately assess the weight tobe placed on it.[31] I agree with counsel that the material may be relevant if the case was to beremitted back to the Family Court. It might also be relevant to the preparation of thenext s 128 plan, currently scheduled for November 2022.Discharge of orders under the Act[32] An application to discharge an order is made under s 125 of the Act and theCourt has the powers provided in s 127.[33] Section 127 provides that the Court has a broad jurisdiction to vary or dischargeorders or conditions, substitute new ones and make new orders and conditions inaddition to the existing order, whether or not it varies the existing order or varies ordischarges any existing conditions.[34] Any exercise of the powers under s 127 must be consistent with the statutorypurposes and scheme,16 and the paramountcy principle in s 4A(10) of the Act, that thewellbeing and best interests of the child are to be the first and paramount consideration.[35] Those factors that constitute "child wellbeing" are specified in ss 5 and 13 ofthe Act.[36] In an application to discharge orders, the applicant has the onus of establishingthat circumstances have changed such that, if the orders are discharged, the child willnot be in need of care and protection.17[37] Section 127 itself does not provide any guidance for the Court as to factors thatmay be relevant to the exercise of the discretion and there is no appellate levelauthority on the correct approach to the discharge of orders under ss 125 and 127 ofthe Act. The principal authority on discharge of orders under s 127 is MEM v SBN.18[38] In MEM, Judge M A MacKenzie reviewed the cases where a discharge oforders had been sought and noted a consistency of approach to the exercise of thediscretion. Judge MacKenzie formulated a three-tier approach:19(a) consider the original care and protection concerns;(b) consider the child's current situation, including the presence or absenceof care and protection concerns; and(c) assess the consequences for the child if protective orders are no longerin place.16 Director-General of Social Welfare v L [1989] 2 NZLR 314 (CA) at 318.17 PT, Re [2012] NZFC 8516 at [103] and [125].18 MEM v SBN FC Rotorua FAM-2001-019-000230, 22 June 2009 at [18].19 At [18].[39] Other Family Court decisions have emphasised that the fundamental questionfor the Court is whether care and protection concerns would remain if the order wasdischarged;20 and any decision to discharge an order must comply with theparamountcy principle.21Points on appeal[40] Ms Frye's written submissions set out seven grounds of appeal. At the hearingMs Frye made oral submissions on some supplementary matters. Each of the groundsof appeal is discussed below. Because there is a degree of overlap in the grounds someof them are discussed together.Were all facts relevant to these proceedings examined by the Family Court?[41] Ms Frye's written submissions did not particularise what facts she believeswere not taken into account by the Family Court.[42] Ms Frye's oral submissions emphasised two main issues. First, that the Courtdid not have adequate regard to all of the steps that she has taken to address the variousconcerns about her parenting and, second, the Court did not adequately consider howwell she has in fact coped with all four of her boys on the occasions when she has hadthem in her care. These particular factors are considered at [75]-[84] below.[43] It is clear from the 2020 decision that the Court did consider:(a) the general historical context of the boys' care;22(b) Ms Frye's circumstances and capacity to parent;2320 Chief Executive of Oranga Tamariki-Ministry for Children v MQ [2021] NZFC 9089 at [44]; E v G[2008] NZFLR 337 (FC) at [31]; Chief Executive of the Ministry for Vulnerable Children v RW[2017] NZFC 7122 at [20]; and MEM v SBN, above n 18, at [17]-[18].21 Chief Executive of Oranga Tamariki v MQ, above n 20, at [42]; M v Chief Executive of OrangaTamariki, above n 12, at [38].22 2020 decision, above n 1, at [4]-[9].23 At [59]-[73].(c) the plans and social work undertaken by Oranga Tamariki, includingsupervision of contact and monitoring by Oranga Tamariki of Ms Frye'sparenting;24(d) the relevant legal principles.25 The Judge considered and, in substance,applied the framework set out in MEM.26 Judge Moss was mindful ofthe threshold for intervening in a family's private life,27 and of the needto consider mana tamaiti.28 The Judge also noted that the Court wasobliged to consider the children's situation in the context of theirwhakapapa;29(e) psychological assessments and recommendations;30(f) Jordan's views;31(g) determinations in relation to Jordan's care;32 and(h) next steps.33Is it appropriate in any manner for judicial interface to have influence on the contentsof the s 128 plan?[44] Section 128 of the Act requires the Court to obtain and consider a plan for achild or young person before making certain orders, including custody orders unders 101 and guardianship orders under s 110 of the Act.[45] In the 2022 decision the Family Court Judge recorded that Ms Frye opposedthe approval of the s 128 plan dated 9 December 2021, because she considered it24 At [74]-[131].25 At [32]-[58].26 At [45]-[48].27 At [31] and [49]-[50].28 At [37].29 At [37]-[40].30 At [132]-[193].31 At [196].32 At [194]-[200].33 At [202].provided for inadequate access.34 The Court considered that the plan was "adequate,now that the s 121 application is dismissed"35 and directed that a fresh plan be filedand served in December [2021], to meet the 12-month schedule.36[46] In this appeal Ms Frye questions whether it is appropriate for the Court to haveany influence on the contents of the s 128 plan.[47] The Court is required to obtain and consider a plan in respect of any child oryoung person before making an order under s 101 placing the child or young personin the custody of any person.37 The plan is prepared by the Chief Executive, as theapplicant for the s 101 custody order.38[48] The contents of the plan must be in accordance with s 130 of the Act whichspecifies the objectives to be achieved, the period within which they should beachieved, the details of services and assistance to be provided for a child, any parentor guardian, the responsibilities and objectives of the child and of any parent orguardian. It is the duty of the Court to consider and assess whether the contents of thes 128 plan are appropriate to address the wellbeing and best interests of the child.[49] These statutory requirements provide a complete answer to Ms Frye'ssubmission on this point.Was appropriate weight given to the evidence of Ms Frye's criminal conviction beingquashed?[50] The primary emphasis of Ms Frye's oral submissions before me was thatbecause the High Court had quashed her conviction for assaulting Jordan anddismissed the charges, there was no longer any basis for Jordan to remain the subjectof orders under the Act and he should have been returned to her care. This submissionis formulated in several ways – first, that the Family Court, although acknowledging34 2022 decision, above n 2, at [36].35 At [53].36 At [53(d)].37 Oranga Tamariki Act 1989 (Act), s 128(1) and (2).38 Section 129.the existence of the evidence about the quashing of the conviction, did not put any realweight on it. Second, that this amounts to a breach of natural justice.[51] It is clear that Judge Moss did acknowledge the setting aside of Ms Frye'sconviction. In the 2020 Decision, Judge Moss noted the fact of the conviction,39 andrecorded that in August 2016 Ms Frye had successfully appealed the conviction.40 TheJudge recorded that Ms Frye had presented fresh evidence and that the Crown hadaccepted the reliability of that evidence enough to both support her appeal and then todecline to pursue a retrial in the District Court. On that basis the proceedings weredismissed.[52] In relation to Ms Frye's evidence, Judge Moss said unequivocally: "I acceptthis evidence. I consider that the mother did not cause the injuries to [Jordan]."41[53] Judge Moss said:42I accept, as did Ms [O], that the evidence [before the High Court] provides acredible account of the circumstances of [Jordan]'s injury, and that the motheracted to ensure his injury was attended to I accept the mother's evidencethat she was terrified to leave [Damian's father], that she was constantlymonitored by [Damian]'s father when interacting with the Courts, lawyers andOranga Tamariki, and that he threatened to kill her if she talked honestly aboutthe violence and abuse both she and [Jordan] sustained.[54] The Family Court accepted that Ms Frye had started the relationship withDamian's father at a time when she was distressed at the death of her husband (Jordan'sfather) and was vulnerable. The Judge also noted that this very poor choice hadprofound adverse consequences for Jordan.43[55] The Court did refer to Jordan being injured as a toddler, when considering thepsychological evidence and assessing the benefits and disadvantages of returningJordan to Ms Frye's care, or leaving him with his current caregiver.44 However, inview of the Court's clear acknowledgement of Ms Frye's acquittal and acceptance of39 2020 decision, above n 1, at [6].40 At [7].41 At [8].42 At [62].43 At [8].44 At [174].her evidence about the assault on Jordan, it is a necessary inference that the Court hadregard to the fact that Ms Frye had successfully appealed the criminal charges.[56] As Judge Moss recorded in the 2022 decision:45 this is the first time that the mother has significantly relied on the assaultconviction as the index event causing [Jordan]'s removal. This appears tohave occurred because the judgment in August 2020 opens with a descriptionof this event. The assault charge was not the reason for removal. [Jordan]already was not living with his mother. At the time of the assault, [Jordan]was having an overnight contact with his mother and [Damian]'s father, herthen partner.[57] It is clear that the Family Court did have appropriate regard to the fact that theconviction had been discharged. The question the Court had to answer on Ms Frye'sapplication could not have been answered simply on the basis that Ms Frye's pastconviction had been quashed.[58] First, as Judge Moss observed in the passage quoted above (at [56]), the eventsthat led to Jordan being placed in care pre-dated the April 2015 incident for whichMs Frye was convicted. Jordan had been out of Ms Frye's care for seven monthsbefore that time.[59] The relevant events that pre-dated the April 2015 incident included:46(a) On 9 June 2013 a nurse from the hospital made a report of concern dueto concerns about the stress Ms Frye was under. Ms Frye had disclosedto hospital staff that she had a diagnosis of borderline personalitydisorder and had not slept for three nights. Ms Frye was referred toFamily Works for support, but was not able to engage with theirservices.(b) On 10 June 2014 a staff member from Jordan's day-care made a reportof concern following Jordan's father's death. The day-care staff45 At [16].46 These events were detailed in the affidavit of the social worker then assigned to Jordan, in supportof a without notice application for an order placing Jordan in the custody of the Chief Executive,under s 78(1) of the Act, on May 2015.disclosed concerns about Ms Frye's parenting, mental stability andovermedicating Jordan. Ms Frye was referred to Family Start forsupport and the day care staff were to monitor the situation.(c) On 10 August 2014 the Police and the Mental Health Line made a reportof concern following a phone call from Ms Frye saying that she washearing voices and wanted to end her life. Mental Health Line alsoreported that Ms Frye said she was losing patience with Jordan, hadthrown a bottle of milk and felt she was unable to care for him. A socialworker visited Ms Frye and Ms Frye self-referred to a communitymental health support centre who put supports in place for her.(d) On 14 August 2014, the day care staff made another report of concernas they had seen Ms Frye smacking Jordan. The day care staff reportedthey had talked to Ms Frye about this and, afterward, did not see hersmack him again.(e) On 16 September 2014, a report of concern was made by day care staffafter noticing a big bruise on Jordan's left ear and observing thatMs Frye appeared angry with Jordan that morning and had removed hisblanket and favourite toy.(f) On 22 September 2014, day care staff made a further report of concernafter noticing bruises on Jordan's left and right cheek, forehead, and ahandprint mark on his buttocks. Ms Frye reported that this was fromJordan running into the wall but accepted the handprint mark was fromher smacking Jordan. A safety plan was put in place, including ongoingclose monitoring by the day care.(g) On 23 September 2014, the day care made a report of concern afterMs Frye said she was withdrawing Jordan from the centre. That day,the Oranga Tamariki social worker met with Ms Frye and her partner,Damian's father, who were angry and abusive. At this meeting,Ms Frye agreed for Jordan to be placed with Oranga Tamarikicaregivers under a temporary care agreement. On 4 November 2014, aFamily Group Conference was held where it was agreed that Jordanwas in need of care and protection and an extended care agreement wassigned.[60] It is clear from this history that Ms Frye's conviction was not the precipitatingfactor in Jordan being taken from her care.[61] Second, further concerns had arisen in the meantime. Those new matters aredetailed in discussing the next ground of appeal below.[62] Ms Frye's appeal on this point cannot succeed. I conclude that the FamilyCourt did give sufficient weight to the fact that Ms Frye's conviction had beenquashed.Are there substantive grounds to support Jordan remaining in care subject to ordersin favour of the Chief Executive?[63] In the 2020 decision, the Family Court reached the view that the discharge ofthe orders would expose Jordan to a care and protection risk.47[64] In the 2022 decision, the Court referred to the 2020 decision and the reasonscontained in that decision, the access application and the 9 December 2021 s 128 plan.The application required the Court to consider whether the access arrangements setout in the 2020 decision, and the subsequent plan, were to resume or whether the morerecent plan, created in light of the therapist's assessment, was to continue.48[65] The Court recorded that there was no new evidence which would lead to adifferent conclusion. The Court said:49If anything, events over the last 20 months have reinforced the Court'sconclusion that [Jordan] is in need of stability which is best provided bycontinuing his close attachment to his caregiver.47 2020 decision, above n 1, at [198]. The relevant paragraph of the 2020 decision is set out in fullat [19] above.48 2022 decision, above n 2, at [37].49 At [26].[66] In reaching that view, the Court noted that the changes to contact imposed byOranga Tamariki resulted from some of the events which had occurred during Jordan'scontact with Ms Frye following the 2020 decision, which had destabilised hisplacement, distressed and disturbed him, and were contrary to his wellbeing.50[67] The various reports before the Court noted a deterioration in Jordan'sbehaviour following the 2020 decision. For example, Caroline reported that Jordanwould return from visits with his mother tense, agitated and anxious, when he hadpreviously been well-settled and secure in his placement.[68] The Court referred to the March 2021 "Report of Concern" by thepsychologist, Ms V, who was working with Ms Frye. Ms V reported that Ms Frye waspurposefully causing emotional harm to Jordan (coaching), with no intention ofstopping.[69] This was followed by a specialist assessment report by Oranga TamarikiClinical Services Ms G, where the assessor recommended that the contact between MsFrye and Jordan should be well-supervised for Jordan's emotional safety to beguaranteed.51[70] Following Ms Frye's application to discharge the orders, the Family Court hadcommissioned a psychological report under s 178 of the Act. The psychologistappointed was Ms O. In the course of 28 months, Ms O issued five reports relating toboth Jordan and Damian. The fifth of those reports, in November 2021, noted:[Jordan]'s psychological safety appears to have been seriously compromised by[Ms Frye]'s own needs to have him returned rather than her focusing on [Jordan]'sneeds to be independent, safe, with routines and boundaries and doing well in all areasof his life.[71] The Court had regard to Jordan's views, both as reported in counsel for thechild's memoranda, and through a judicial interview.52 His views were properly takeninto account.50 At [38] and [39].51 At [41]-[46].52 At [46].[72] The Court observed that Ms Frye had an "unshakeable belief" that Jordan'scontact should be returned to that set out in the plan in 2020, or something more.53But the Judge went on to note that Jordan is "significantly advantaged by the structureof contact which has been devised. I conclude that the mother has acted on her beliefthat [Jordan] will be coming to her care, and that she has tried to make sure that[Jordan] has expressed this wish".54[73] The Court considered that the discharge of the current orders would exposeJordan to a risk that his mother could not cope with parenting him full-time, whetheras one of three, or as one of four. That concern arose in part from some of Ms Frye'shistory, but also from the significant value the Court placed on the quality of Jordan'scurrent placement with Caroline. The Court concluded that if Jordan were to return tohis mother's care the risk of a loss of that relationship would have profound impact onhim. As the Court noted, Jordan carries with him the vulnerability which arises fromadverse childhood experiences.55 The Court concluded that the proposed structure ofcontact should remain.56[74] I am satisfied that there were substantive grounds for the Family Court toconclude that Jordan should remain subject to the current orders.Ms Frye's ability to parent all four of her children[75] Ms Frye says that the Court did not have adequate regard to the steps she hastaken to improve her parenting skills and to her ability to parent all four of the boys.She argued powerfully that it is best for all her sons that they be together, as a family.She submits that they will be damaged if that does not occur. She also says that she isfully capable of parenting all four of the boys, fulltime.[76] There is no doubt that Ms Frye is committed to parenting her children and thatshe has worked hard at addressing the concerns raised at various points in relation toher parenting. As Judge Moss noted in the 2020 decision:5753 At [48].54 At [47].55 2020 decision, above n 1, at [198].56 2022 decision, above n 2, at [47].57 2020 decision, above n 1, at [24]-[26].[24] The mother has assiduously gone about improving her position,accepting that some of her behaviour has been unacceptable for the children.The first time she perceived that was when [Jordan] left her care in September2014. She had been angry and aggressive. She said she immediately enrolledin an anger intervention course. Since then, she [has] undertaken about sixparenting courses, and two longer and home-based family developmentcourses. In addition she has done a number of self-esteem and personaldevelopment courses, including MAPPS, First Aid, Domestic ViolencePrevention, and courses about keeping herself and her babies safe. She hasengaged over 3 plus years with a community agency in [location B], [akaupapa Māori service], and also with [another iwi governed health and socialservice provider], which operate under the auspices of [a home-based socialwork, family and whānau support organisation].[26] In addition to all of these matters of personal development, the motherhas also achieved a certificate related to [redacted]. This is a field of work shehas been engaged in before, prior to [Jordan's] birth. She is eager to work inthis field.[77] Judge Moss also noted that the evidence focussed on Ms Frye's efforts toimplement the strategies from what she had learned at courses and within thetherapeutic self-improvement work.58 The Judge recorded Ms Frye's strong belief thatshe is well-placed to parent all of her boys together and believes it is important forthem that she does so.[78] Later in the judgment, Judge Moss recorded that Ms Frye:59 has been constant, persistent, reliable with contact, and focussed on herown goal. She has set about years of self-improvement, not only because theMinistry required it, but because she perceived the need for it.[79] What was also plain before this Court is that there is no concern aboutMs Frye's ability to physically parent the boys. That is clear from Ms O's reports. Itis also accepted that there were no concerns noted at the time of contact during theChristmas 2020/2021 period.[80] The successive reports provided by Ms O prior to the 2020 hearing in theFamily Court noted an improvement in Ms O's parenting skills over time, but Ms Oalso observed that Ms Frye tended to prioritise her own (emotional) needs in the58 At [30].59 At [60].moment, over Jordan's needs, and that there was a risk of Ms Frye "adultifying" Jordanand Damian. In her November 2021 report Ms O observed that she had no concernsabout Ms Frye being able to provide physically for her children, but was concernedabout potential psychological challenges in regard to Jordan.[81] Ms O also said: "Ms [Frye] needs to focus on supporting her children, notundermining them to meet her own needs which has been observed by professionals".She further noted: "Ms [Frye] is just managing three children and to add a fourth wouldlikely lead to the wellbeing of all five members of the household deteriorating". AsMs O had noted in her evidence to the Family Court in the 2020 hearing, 24/7 care365 days of the year is constant and consistent and raises concerns that are not presentin relation to overnight stays.[82] Ms G's report of 29 July 2021 said, "Continued contact would be advisable solong as the meetings are well supervised, boundaries are adhered to and there isguaranteed emotional safety for [Jordan]".[83] The Court concluded that the discharge of the orders would expose Jordan toa "tangible, well-defined risk". The Court's concerns were at a level that the ordersincluded a further s 178 report for Ms O to advise on the treatment programme,including combinations, duration of intervention, and therapists to report to eitherMs O or to the Court, with respect to interventions by way of counselling and therapyfor the children, Ms Frye and Jordan's caregivers.[84] The evidence before the Family Court in 2020 and 2022 points clearly to aconclusion that Ms Frye is not yet in a position to parent all four children, on a full-time basis, without significant risk to Jordan's wellbeing.Has Oranga Tamariki stated any concerns for Jordan in Ms Frye's care?[85] This ground of appeal is in substance addressed under the previous ground ofappeal.[86] Plainly Oranga Tamariki did state concerns for Jordan in Ms Frye's care andthese were the concerns specifically considered by the Family Court in both the 2020and 2022 decisions.Breach of natural justice and Bill of Rights Act[87] Ms Frye did not particularise this ground of appeal. However, I note that shehas been able to fully participate in all of the processes leading up to the 2020 and2022 decisions, including attending Family Group Conferences, responding to thes 128 plans for Jordan, presenting evidence and cross-examining witnesses and, beforethis Court, appealing the Family Court decisions.[88] The only exception to that arose from the Chief Executive's without noticeapplication for custody and additional guardianship orders on 7 May 2015. A withoutnotice application is an exception to the usual rules of natural justice. For that reason,a high threshold must be met in the application.60 Judge Moran was clear that theapplication did reach the high standard required for a without notice order.61[89] As Ms Jackson submits, in relation to the allegations about breaches of theNew Zealand Bill of Rights Act 1990, this proceeding is a substantive appeal of the2020 and 2022 decisions. It is not a public law claim alleging breach of the Bill ofRights.Supplementary submissions[90] Ms Frye relies on Nikau v Nikau for its statement that psychological researchsuggests it is better to prioritise one solid attachment over two troubled attachments.62[91] I accept the submission from the Chief Executive that Nikau is not applicablein this case, for two reasons. First, because it related to different legislation (the Careof Children Act 2004). Second, the psychological evidence for Jordan was that he had60 Family Court Rules 2002, r 276(1)(b).61 Minute of Judge Moran, FAM-2015-092-000507, 7 May 2015, at [1].62 Nikau v Nikau [2018] NZHC 1862 at [37].two equivalent primary attachments, to his mother and to Caroline.63 Jordan did nothave two troubled attachments.[92] In relation to Jordan's own view, it is correct that he had expressed a view thathe wanted to live with Ms Frye. Judge Moss acknowledged this in the 2020 decision.64However, Jordan had also expressed the view that he was happy with Caroline. Jordandid express a view, immediately following the 2020 decision, that he wished to livewith Ms Frye, but I accept that there was expert evidence to suggest that his views hadbeen influenced.65 More recently, the view that Jordan has expressed is that he wantsto live with Caroline and that he wants his contact with Ms Frye to be supervised,because of her interactions with him. As the Family Court noted, Ms O concluded thatJordan "is in something of a loyalty bind, that he does not want to hurt anybody, andthat he is happy and satisfied in the relationships he has".66 In any event, while theCourt must take account of the views of the child when making a decision,67 the child'sview is one factor to be considered and is not determinative. As Judge Moss describedit, "[t]he social worker has seen [Jordan] with his caregiver, and in chorus witheverybody else, is confident that [Jordan]'s caregiver's contribution to his wellbeingis constant, mature and enormous".68 The Court concluded that if he were to return tohis mother's care the risk of a loss of that relationship would have profound impact onhim.Conclusion[93] In this case, the Court heard extensive evidence, over eight days. The 2020decision is considered and thorough. It was plainly open to the Court to conclude, onthe evidence before it, that care and protection concerns, particularly around Jordan'spsychological and emotional state, remained and that it would not be in his well-beingand best interests to discharge the orders.6963 2020 decision, above n 1, at [196]-[197].64 At [196].65 2022 decision, above n 2, at [10].66 2020 decision, above n 1, at [196].67 Act, s 5(1)(a).68 2020 decision, above n 1, at [74].69 2020 decision, above n 1, at [198].[94] As is clear from the 2022 decision, at that point there was no new evidencebefore the Family Court to justify a discharge of the orders. In fact, as the Courtobserved, the position was somewhat worse.Result[95] For the reasons set out above I dismiss Ms Frye's appeal.[96] The current orders remain in place.[97] The next step is preparation of the s 128 plan, scheduled for November 2022(although Ms Jackson advised the Court that Oranga Tamariki had put that process onhold pending the outcome of this appeal). The steps necessary for preparation of theplan should now occur.Gwyn JSolicitors:Rachel Dewar Law, WellingtonCopy to:The appellantMs Fuata'i, Manukau City