M v THE CHIEF EXECUTIVE OF ORANGA TAMARIKI [2019] NZHC 717

M v THE CHIEF EXECUTIVE OF ORANGA TAMARIKI [2019] NZHC 717 [5 April 2019]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-judgmentsIN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECIV 2018-409-743[2019] NZHC 717BETWEEN MAppellantAND THE CHIEF EXECUTIVE OF ORANGATAMARIKIRespondentHearing: 19 March 2019Counsel: A J McKenzie for AppellantR Bowe and R Williams for RespondentJ E Graham for the childJudgment: 5 April 2019JUDGMENT OF ELLIS J[1] Mr M appeals a Family Court decision restricting his access to his seven yearold biological daughter (K) to a single three and a half hour visit, once a month. Untilrelatively recently, he had been seeing her weekly and for longer on the schoolholidays.Background[2] Mr M is 52 years old. His father is Cook Island Māori and his mother isPākehā. He has, however, acknowledged that he is not particularly conversant withhis Cook Island roots and has little contact with his father. Mr M has several historicconvictions, including for assault with intent to commit sexual violation.[3] Prior to K's birth Mr M formed a relationship with Ms S, who was a teenager.1Ms S gave birth to K in June 2011.[4] K was removed from the home of Mr M and Ms S when she was nine monthsold and, on 9 April 2013, the Family Court made a declaration that she was in need ofcare and protection. Domestic violence directed at Ms S by Mr M was the principalcause of these events.[5] Custody and additional guardianship orders were made in favour of the ChiefExecutive of (what is now) Oranga Tamariki in July that year. K was placed in thecare of Ms B.2[6] In October 2013, Judge McMeeken in the Family Court made an access ordergranting Mr M supervised weekly access of three hours a week. In her comprehensivedecision she precisely articulated the competing principles that continue to dominatethis case today.3 She said:[17] In relation to [K], while all of the objects and principles have someapplication, I find the most important principles to be these:4(a) Section 5(b), the principle that wherever possible therelationship between the child and her parents should bemaintained and strengthened.(b) Section 13(b), the principle that the primary role in caring forand protecting a child lies with the child's family and thataccordingly the child's family should be supported, assistedand protected as much as possible, and intervention intofamily life should be the minimum necessary to ensure achild's safety and protection.(c) Section 13(f) and in particular s 13(f)(iii), which states:Where a child is removed from her family the principles thatwhere the child cannot be returned to her family the childshould live in an appropriate family-like setting in which shecan develop a sense of belonging and in which a sense ofcontinuity and her personal and cultural identity aremaintained.1 Ms S was young enough to require a litigation guardian at earlier stages of these proceedings.2 At some point Ms S also gave birth to another child, J, the paternity of whom is a matter of dispute.J is also now in the care of foster parents.3 The Chief Executive of the Ministry of Social Development v J M [2013] NZFC 9013.4 The statutory references here are all to the Children, Young Persons and Their Families Act 1989(which was renamed the Oranga Tamariki Act 1989 in 2017).(d) Section 13(h) where a child cannot remain with or be returnedto her family, the principle that the child should be given anopportunity to develop a significant psychological attachmentto the person in whose care the child is placed.[18] The overarching principle, however, is the one I stated firstly, whichis that the paramount consideration of the welfare and interests of [K].[7] The Judge then referred to the decision of this Court in A v Ministry of SocialDevelopment where Asher J spoke of the tension between the desirability of nurturinga biological parent's relationship with a child, on the one hand, and, on the other thedesirability of minimising disruption for a child who has been placed in a settledfamily environment.5 Judge McMeeken went on:[20] His Honour commented that the biological tie does not give a naturalparent a right to access but it is important. He said that when a child has apermanent placement with another family it is important that the child hascontact with their biological parents so that the child can properly understandher background and identity. He also said that with a child in a permanentplacement, access is not given for the purpose of allowing a biological parenta relationship in a way which will ultimately leave the child to being returnedto that biological parent. Asher J said that is in the young child's interests thatshe have a predominant connection with the permanent placement familywhere she now loves, and to allow developments which lead to a disruptionof that new family setting could damage that sense of belonging.[21] A's case involved a child uplifted from his mother at birth who hadnever had any attachment to his mother, and as at the date of hearing did nothave a relationship with her. That child was now with a new family being ahusband, wife, four sisters and a brother. At the time of the hearing the motherwho was applying for access had not had any contact for about a year and haddeclined some opportunities to have contact. Asher J confirmed the FamilyCourt decision that that mother should have access four times a year. Thatfact situation contrasts markedly with this case where the father was with [K]after her birth and for the last year or so has had contact for three hours a weekwith the supervision paid by him. There is clearly a bond and an attachmentbetween him and [K] and a further difference is that [K]'s now permanentplacement is with a single woman.[22] Asher J commented that the issue must be considered on a case bycase basis and that there is no set formula as to the desired frequency of accessfor a biological parent to a young child permanently placed with anotherfamily. He said that four times a year should not be regarded as a rule.[23] Although the facts differ between A's case and this case, Asher J hadto deal with a similar specific issue. He set that out in paragraph 19 of hisdecision in this way: he said the issue was 'is the mother's claim that it is inthe child's interests that she had frequent access to him as her biologicalmother stronger than the Chief Executive's claim that the child's5 A v Ministry of Social Development [2009] NZFLR 625 (HC) at 625.psychological attachment to his new family must be nurtured and would beseriously impaired if access was too frequent?'[24] In this present case, I frame the issue I must determine in this way: thefather claims that [K] has a right to an ongoing relationship with one of herbiological parents to whom she is already attached, as opposed to theMinistry's claim that [K]'s attachment to and placement with her caregiver,who is now to be her permanent caregiver, would be impaired of contact withher biological father was too frequent.[8] The Judge recorded that there was no evidence filed in support of theMinistry's position, which was that (as in A's case) Mr M's contact with K should belimited to four times a year. After noting the positive evidence about Mr M's accessvisits, she said:[29] In my view, there would have to be demonstrable reasons for [K] tohave her time with her father severely reduced. The Ministry says that thejustification for reducing the father's contact is so that [K] does not get falsehope that she could return to live with him, and so it does not compromise therelationship between [K] and Ms [B]. The Court is therefore being asked topresume that those two things will occur - that [K] may get false hopes shecould return to live with her father, or that her relationship with Ms [B]couldbe compromised. There is no evidence to suggest that [K] having contact withher father will give her false hope that she could return to live with him. Thereis no evidence that the father is encouraging [K] to return to his care or is inany way suggesting to her that may occur. There is no evidence that he hasever done anything like that during an access visit, and Mr Loveday was askedabout that.[30] The social worker gave evidence that Ms [B] had complained that[K] was upset and/or unsettled after access. It was unhelpful that directevidence could not have been given in respect of that. When comments madeby the social worker about the extent of [K]'s upset were put to Mr Loveday,he expressed surprise about the reported distress. He said, "It greatly surprisesme", to hear that. His evidence was that he had not been alerted to anyconcerns about [K] being upset after access. I do not know the extent of herupset after access and I do not know why that occurs. I do not know whetherthat will compromise her relationship with Ms [B] and, given the paucity ofevidence, they are not matters the Court can make a finding of.[33] For the past year, however, [K] has spent three hours every week withher father. I conclude from the evidence of the access supervisor that [K] hasan attachment to her father, that she knows him as her father and that shespends good quality time with him. It is clear she has a bond with him. As Ihave said, it is also clear from the evidence of the access supervisor that [K]has an attachment to Ms [B] which seems to be a healthy one.[34] The father appears to appreciate his present situation which he hasplaced himself in. He has some very significant, albeit historical, criminalconvictions. He has had, as he described it, "an ongoing and toxic relationshipwith [K]'s mother." His actions over many years led to a declaration beingmade which means in large part he has lost the ability to make decisions abouthis daughter. ·[35] In respect of his current position however, being that of a father whoonly seeks to have ongoing supervised access with his daughter, I find thatlittle real criticism can be made of him. He has paid for the costs of supervisionand he proposes to keep doing that. His contact for the past year or thereaboutshas been closely and, in my view, expertly supervised. There is no evidencethat he has done anything to confuse [K]about her loyalties. There is noevidence that he has done anything at all to place [K]at risk. The accesssupervisor has heard and seen nothing at all untoward by the father at access.He has seen [K] enjoy and benefit from the safe time she has had with herfather.[9] The Judge concluded:[39] When I consider the evidence before me and the principles that I mustapply, I conclude that at this time it is certainly in [K]'s best interests that shebe given an opportunity to develop the significant psychological attachmentto Ms [B] who has been assessed to be her long term caregiver. From theevidence I have, I think that is occurring, and again I refer to Mr Loveday'scomments about what occurred at access changeover. But I think from theevidence I have and applying the principles I must, that it is also importantthat [K]'s relationship with her father be maintained. I am of that viewbecause there is no evidence that suggests [K]'s relationship with her father isimpeding her relationship with Ms [B]. Given that the access being proposedis supervised access, I find there is no risk to [K]. Given also that the newfamily unit [K] is in is just her and Ms [B] – that is, there is no father figure,it may be of value for [K] that she maintain contact with her father.[40] I can see no benefit to [K] at this time in reducing the time she spendswith her father. Her new family unit is a small one so it should not be toodifficult for Ms [B] to arrange for weekly contact without compromising [K]'sother activities. [K] is young, she is not yet two and a half, and as she growsher needs will change, but at this time applying the principles I have earlierreferred to, to the evidence that I have heard, I consider that [K] can continuedeveloping the psychological attachment she clearly already has with Ms [B]while also maintaining contact with the father she knows and enjoys. I do notfind how her proposed permanent placement with Ms [B] should mean thather relationship with her father must be basically extinguished, and I fear thatmay well be the case if she is only able to see him for four times a year at heryoung age.[41] For those reasons, I grant the father's application. I make an accessorder in his favour which provides that he may have access with [K] for threehours per week, such access to be supervised by a supervisor approved by theMinistry and the costs of that supervision are to be met by the father.[10] Contrary to expectation, K's placement by with Ms B did not prove successful.She was removed form Ms B's care and, in November 2014, was placed with hercurrent caregivers (the Gs). Theirs is regarded by Oranga Tamariki as a "foreverhome". The access arrangement involving Mr M continued until 2016 with nosignificant difficulties. It was not until K started school (in June 2016) that the ChiefExecutive's position changed.[11] On 8 August 2016, Judge McMeeken issued a minute recording Mr M'sconcerns the Chief Executive might seek to reduce access but noting that apsychologist's report was awaited and counsel were unavailable. She adjourned thematter off until October but changed the times of Mr M's weekly access (but not theduration) to accommodate school hours.[12] The next involvement by the Family Court appears to have been a review planhearing on 7 November 2016. Judge Ellis issued a minute on that day in which henoted:[1] Starting school has, clearly, made a difference in [K]'s life.[2] The primary issue in front of me is the form of contact that [K] haswith her dad. Currently, that is supervised and on a regular basis. It has beenindicated by the Ministry that they are now seeking a reduction of that contact.Any such reduction will be opposed by [K]'s father and so that needs to bedetermined promptly.[3] The Ministry needs to put before the Court and before Mr [M] and hiscounsel the detail of their assessment and their proposals and the reasonstherefore and I will direct therefore that that information be put before theCourt by way of plan and report and supporting affidavit evidence not laterthan 15 November. Mr [M], clearly, has the right to consider and respond tothat. No doubt, he will want to do so promptly. I will direct therefore that heis to file anything in response not more than 14 days thereafter. The mattershould then come back to another Judge for a final directions conference byway of pre-hearing.[4] Ideally, in my view that should come back before Her Honour JudgeMcMeeken. I accept the submission of Mr MacKenzie, as counsel for Mr [M],that Her Honour Judge McMeeken has presided over days of previoushearings, will have had her own opportunity to hear and assess the parties andhas a detailed knowledge of the background, all of which will, no doubt, comeback to her when she reads the file and any further papers filed.[13] For reasons that are not entirely clear, on 16 November 2016, the ChiefExecutive applied urgently to reduce Mr M's access to two and a half hours perfortnight during the school term and five hours per week during the school holidays.On 17 November 2016 variation orders were made ex parte, but only to the extent ofshortening Mr M's access from three to two and a half hours on a different day and ata different time from the original orders (the new times taking account of schoolhours).[14] In making those orders Judge Harrison noted that the application had beenmade urgently "despite Judge Ellis clearly set[ting] out the way forward and despitethere being no clear evidence as to what has changed since 7 November when thosedirections were made". She said, "I am left questioning the path taken by theMinistry". Judge Harrison also expressed concern about the quality of supervisionthat had been occurring and directed that the Ministry take responsibility foremploying the supervisor. She allocated a further hearing date of 19 December 2016before Judge McMeeken.[15] It seems that there was some form of case management hearing before JudgeMcMeeken on that day. The Judge issued a minute in which she noted that theMinistry's application of 16 November appeared to have been made ex parte, but thatthe Ministry had advised that was a mistake. She expressed concern that this mistakehad caused the matter to be put on the eDuty platform and referred to a New PlymouthJudge (Judge Harrison) who did, in fact, deal with it on a without notice basis.Judge McMeeken observed that this was "unfortunate". Then, she recorded:[8] I have just had brief discussion with Ms Paget who is [K]'s socialworker. During the coming summer holiday period, [K]'s caregivers willunderstandably be going away for a holiday for a week or two so there will bea period of time when [K] will not have contact with her father.[9] Ms Paget acknowledged that the Ministry will attempt to providemake-up days but also it seems sensible to me and I think Ms Paget agreedthat during the school holidays there should be an opportunity for [K] to spendlonger than two and a half hours with her father so that they can have realoutings and make plans. Ms Paget said that she will liaise with father's counselto arrange for those longer periods and to explain when contact will not occur.[16] On 17 February 2017 Judge McMeeken directed that a firm two day fixture beallocated for the hearing of the Chief Executive's application to have Mr M's accesshalved, to fortnightly. She also said:[2] I note that when this matter was before me on 19 December there werediscussions about the father's ongoing contact with [K]. It was certainly myunderstanding that because the caregivers would be going away for a holidayand, therefore, a period of time when [K] would miss out on the contact withher father that there would be an opportunity for the father's contact, given itwas the school holidays, to be extended. I recorded as much in paragraphs 8and 9 of my minute of 19 December.[3] The father is concerned because he says that he had one visit, as Iunderstand it, which was half an hour longer. That certainly was not myunderstanding of the discussions that we had in Court so I can understand thefather feeling somewhat dissatisfied with the Ministry's response in respect ofour discussion.[17] On 30 June 2017 there was a fixture callover before Judge Moran, who notedthat Mr M continued to have access on a weekly basis but, the day before the callover,the Ministry had filed a memorandum seeking that this be reduced to monthly. Hesaid:[2] I have endeavoured to look at options for resolution but these arenot readily apparent. It may be that further consideration can be given to thereduction from weekly access to reflect the fact that [K] is living permanentlywithin a home with caregivers and that they find continuation of weekly accesstoo difficult to maintain for a plethora of reasons, which is quite common insuch situations. There may be a compromise to be had which would stillreflect [K]'s welfare and best interests and that, of course, is what this is about.[18] The Judge went on to note that it was K's social worker of some eight months'standing who "had adopted the current position but she has no evidence before theCourt at all." He also said:[4] Mr Williams, for the Ministry, seeks to file an affidavit fromMs Retallick [K's social worker] and obviously that is essential. Further, itseems that Ms Retallick is relying on much of what is reported to her by thecaregivers, and while I readily accept that they do not wish to be involved inproceedings of this type, if the Court is being asked to rely on thoseobservations then best evidence rule must be complied with and there must bean affidavit from at least one of the caregivers. Cross-examination can, ofcourse, be restricted to matters pertaining to these aspects only. That will be amatter for the hearing Judge.[19] The Judge then directed that "a two day fixture before Judge McMeeken is tobe allocated if at all possible".[20] On 17 July Judge McMeeken issued a minute saying that the matter did notneed to be heard by her and needed to be allocated a hearing. She also said:I am very concerned that the Ministry have changed their position after thematter was directed to be set down for a hearing. The matter was ready toproceed on 17 February.[21] The Judge noted that she had conflicting advice from the Ministry about whowas (or had been) K's social worker and expressed concern that this had caused furtherdelays.[22] On 26 October 2017 there was another fixture callover before Judge Moran.The Judge said:[1] The matter relates to Mr [M]'s access to [K] and, in particular,whether it should be monthly as the Ministry proposes or weekly or evenfortnightly as Mr [M] would suggest. It seems that the matter is simply notclose to resolution and attempts to bridge the gap have been unsuccessful.[23] The Judge noted that all the evidence had been filed and allocated a firm twoday fixture commencing on 7 May 2018.[24] Then, on Boxing Day 2017, K and the Gs were involved in a car accident. Krequired emergency surgery for a perforated bowel. As well as her physical injuries,she suffered longer term psychological effects, including anxiety, night terrors, andacute sensitivity to loud noises. The accident affected her schoolwork and schoolattendance. She has been receiving help from a psychologist for these things.[25] It seems clear that the aftermath of accident was also the cause of some frictionbetween Mr M and Oranga Tamariki. Mr M visited K often in hospital and seemed tobe reluctant to take advice about overtiring her. Oranga Tamariki formed the view thatMr M was placing his own desires above those of K, evidenced in particular by himinsisting on access after her discharge even when told that, due to the accident, Kfrightened of travelling by car.[26] The events leading up to the putative two day hearing in May 2018 were setout in detail by Judge McMeeken in a subsequent minute dated 19 July 2018. Withsome justification, the Judge described aspects of these events as "ridiculous". Sufficeit to say that the parties were seriously let down by the Family Court's administrativeprocesses. The short version is that, when they appeared for the hearing on 7 May,ready to proceed, neither a judge nor a courtroom was available. The matter had to beadjourned off, again.[27] In her July minute Judge McMeeken explained what happened next. Shebegan by noting:[14] What happened subsequently also causes me some concern. It haslong been clear to [K]'s Father that Oranga Tamariki, for a variety of reasons,wished to limit his contact with [K]. [K]'s Father has vehemently opposedthat limitation. For a long period of time, he paid for supervisors himselfbecause Oranga Tamariki were of the view that supervision was necessary.The Court had made it clear that there was an access order and if that was tobe varied it needed to be done by the Court, hence the application made inNovember 2016. It remains very clear that Oranga Tamariki wanted the fatherto have possibly only brief contact with his daughter monthly or even lessoften.[15] There have been reports written by a psychologist. There are reportsfrom lawyer for the child. As I have said, there are a number of files that takeup two boxes in respect of this little girl and much of it relates to herrelationship with her father. The whole purpose of the hearing scheduled for7 and 8 May was to determine whether the father's contact should be reduced.[28] Then, she went on:[16] On 9 May, Oranga Tamariki applied without notice to vary the accessorder that was the subject of the substantive hearing. A third social workerthat is not one of the first two social workers involved since theNovember 2016 application, swore an affidavit confirming that she was thesocial worker assigned to [K]. The social worker noted that there was an orderproviding that the father have weekly access from 3.30 pm until 6.00 pm oncea week, but the social worker said that there were concerns that neededaddressed in the interim.[17] The social worker referred to a road accident that [K] was in inDecember of last year and commented about the time she was in hospital. Thesocial worker exhibited almost four pages of text messages from 11 Januarylast year, and she submitted that access should be varied in the interim untilthe matter is dealt with and recommended that access is reduced to once amonth for two hours. That is an 80 percent reduction in the access that [K]and her father had been having.[18] That application was put on the e-Duty platform which means it wasultimately dealt with by a Judge in the North Island who had only theapplication before her. As I have said there are two boxes holding files for[K]. The e-Duty Judge had no idea of the background other than what wascontained in the social worker's affidavit.[19] It is my view that it is most unfortunate that the Judge who was askedto determine Oranga Tamariki's without notice application was not aChristchurch Judge who would have had access to the file which includedpsychologist reports, lawyer for the child reports and previous judicialfindings. [K] has had a lawyer involved with her for most of her life. Thatlawyer's views were not sought. The e-Duty Judge said that in her view, therewas a case for contact to be restricted, particularly as the Family Court hearingis now to be delayed. The e-Duty Judge granted the application and directedthat the father was to have access to [K] for two hours once a month.[20] I think it is most unfortunate that such an important decision was madeby a Judge who did not have access to have a huge file. It cannot be in theinterests of justice and it cannot be in the best interests of a child for a Judgeto be put in such a position. It also concerns me that the Ministry have nowobtained exactly what they want. They have restricted the father's contact by80 percent of what it was, to two hours a month which is what they have beenseeking to achieve.[21] It is difficult to understand what happened between 7 May and 9 Mayto lead the Ministry to make a without notice application. It is difficult tounderstand why lawyer for the child was not involved in or alerted to thatapplication, and it is difficult to accept that when the matter finally gets tohearing that there will not be someone on behalf of the Ministry givingevidence to say that this new regime is in [K]'s best interests and to giveevidence of how well it is working.[22] The father has spoken to me today. He advises that he did not see [K]in the school holidays, that he is completely and utterly disappointed in thelegal system and it is fair to say that he is deeply upset that whilst he waits fora hearing to determine is contact with his daughter, that the justice systemworks in such a way as to enable an order to be made which has done preciselywhat the hearing was supposed to determine.[29] The Judge went on to confirm that the on notice hearing would take place on30 and 31 July and that 1 August is available if a further day was required. She notedthat Megan Phillips, the psychologist for Oranga Tamariki, would be filing an updatedreport or affidavit in advance of that hearing.The judicial review application[30] As Judge McMeeken noted, the Chief Executive's without notice applicationhad been determined on 9 May 2018 by Judge Riddell, a North Island Judge. Hisdecision is brief (five sentences).66 I mean no criticism of the particular Judge concerned. As Judge McMeeken highlighted, there areclearly a number of systemic issues raised by what occurred here.[31] On 18 May 2018 Mr M filed an application for judicial review of that decision.An application for interim orders was made on 8 June 2018 but was declined byMander J on 11 July 2018.7 In the course of that decision the Judge addressed most,if not all, of Mr M's substantive points on review.8 But the principal reason fordeclining the application for interim relief was essentially jurisdictional; the horse hadbolted. In other words, because of the decision that had been made without notice tohim, Mr M no longer had a position to preserve. And the fact that the on noticeapplication had (by the time of the hearing before Mander J) been allocated a fixtureless than a month later was also at the forefront of the Judge's reasoning.The decision under appeal[32] The Chief Executive's on notice application was heard by JudgeBrandts-Giesen on 30 and 31 July 2018.9 The Judge heard oral evidence from Mr Mhimself and from the psychologist, Ms Phillips. There was also evidence from thethree social workers who had dealt with K between 2016 and 2018. But for reasonsthat are not clear, Mrs G, who had (in July 2017) sworn an affidavit in support of theChief Executive's application did not attend and could not be cross-examined.[33] The Judge did not interview K.10 Her interests were represented at the hearingby counsel for the child, Ms Graham.[34] By the time the Judge released his decision, on 1 October 2018, Mr M had beenhaving monthly access only for six months. There was, necessarily, a new status quo.[35] The Judge began his analysis by summarising the Chief Executive's position,as follows:[24] The Ministry emphasised the continued need for supervision but alsothe need to consider [K]'s best interests rather than the wishes or perceivedneeds of her parents to have a role in [K]'s life.7 JM v The District (Family) Court at Christchurch [2018] NZHC 1716.8 Although he expressly expressed no concluded view on them.9 Chief Executive of Oranga Tamariki-Ministry For Children v M [2018] NZFC 7384.10 The question of an interview was raised but was opposed by both Mr M and by Ms Graham, albeitfor different reasons.[25] Those interests, say the Ministry, are best served by [K] being in astable and permanent home with loving, caring, competent, and coping fosterparents.[26] Access by [K]'s biological parents should "not be disruptive to the[G] family unit which includes [K].[36] Next the Judge recorded the submissions made by Mr McKenzie for Mr M's:[29] Mr McKenzie highlights the differences in various social workers'compatibility with Mr [M], although all acknowledge Mr [M]'s commitmentto his daughter.[30] Mr McKenzie is highly critical of Ms Megan Phillips, the clinicalpsychologist, whose independence and interview practices he questioned.[31] The theme that runs through Mr [M]'s case was that whatever his pastmay have been like, Mr [M] was now a law-abiding citizen, prepared tocomply with reasonable supervision rules. Any difficult behaviour displayedby Mr [M] was in effect righteous anger in answer to unfair practices by theMinistry,[32] Mr McKenzie adopts the position that [K] needs to overcome herpost-traumatic stress (which Ms Phillips estimated would require monthsrather than years from which to recover). He suggests that the monthly accessremain until the beginning of 2019, and that it then revert to fortnightly.[37] Next, the Judge referred to the views expressed by counsel for the child,Ms Graham, namely that:(a) The Ministry had attempted to negotiate a change of access when K hadstarted school but Mr M had become difficult to deal with;(b) "[K] deserves a normal family life in a forever home";(c) K's needs had changed, particularly in light of the car accident;(d) Mr M's attitude presented a "dilemma" in that he considered that K's"primary attachment" was with him but did things which made accessmore difficult for her;(e) Mr M had no insight into his conduct, he was not supportive towardsthe Gs and had an unrealistic expectation to be part of their family unit;(f) access should be reduced (inferentially because of an increase in thecompeting demands on K as she got older);(g) K "seems to have responded well to the reduced access" and "was[content] with access being monthly.[38] The Judge then noted that the variation application was made under s 125 ofthe Oranga Tamariki Act 1989 (the 1989 Act). He said that while there are no specificstatutory criteria governing the exercise of the Court's discretion, the power must beexercised in accordance with the principles in ss 5 and 13 and the paramountcyprinciple in s 6.[39] After observing that Mr M's apparent reluctance to accept that he would neverbe K's caregiver or have unsupervised access was manifested in his conflict withOranga Tamariki, he noted that there were a number of competing and potentiallydisruptive forces at work in K's case:(a) Because K was growing up, she was moving from total dependence ona small number of caregivers to the introduction of playmates, extendedfamily and then to friendships with other children and their families.(b) As K approaches adolescence it could be expected that she will beallowed some independence under the guidance of her carers, whoshould act in a consistent and supportive way. In turn, the Gs wouldneed to be supported in that endeavour and to be treated in a consistentand respectful way.(c) K is a child in need of care and protection. Rather than focussing ontheir own personal or professional needs, those involved with herneeded to focus on her welfare in both the short and long-term.(d) The Gs' household had its own challenges which give it strength. But allfostering relationships are fragile.(e) Mr M and Ms S had important roles to fill, but their roles could not belike that of parents with day-to-day care of the child; their roles must.be "contained so that the caregivers' responsibilities (andcorresponding rights) are not shackled".(f) The time reasonably available to spend with K must be shared betweenthe birth parents, the carers, and the emerging social demands of school,friends, and recreational pursuits.(g) There are, nonetheless, cultural concerns arising (in particular) from thefact that K is part Cook Island Māori and has been placed in a Pākehāfamily. It is vitally important for K to become familiar with the culturalbackground of both her parents.(h) Finally, the serious car accident after Christmas in 2017 involvedlasting physical and psychological effects for the whole G family. Kwas seriously injured and the G family as a whole will take time torecover back to equilibrium.[40] Judge Brandts-Giesen then highlighted the "unfortunate" fact that the Gs hadbeen unable to give evidence or be cross-examined, noting any evidence he had heardabout their concerns was necessarily hearsay. He noted that while the Court's concernwas with the best interests of K, it also needed to focus on the G family as a whole.The Judge considered that too much access by Mr M could be disruptive to the Gs'overall life and activities.[41] He discussed at some length the cultural effects of K's placement, as a CookIsland Māori child, with a Pākehā family but concluded that with the Gs' help, shewould be able to learn about Cook Island and Māori culture as she grows older. Healso noted that Mr M would, himself, need to first become interested in his personaland national ancestry, if he was to pass that culture onto his children. The Judgereiterated that K "knows who her father is and has a relationship with him".[42] Ultimately, the Judge was satisfied that a "weekly or fortnightly arrangementis not suitable because of the pressures in [K]'s life".11 He concluded:[73] The biological parents have a role, but that is time sensitive. Their roleis to assist the child with her parental and cultural identity, but should notinterfere adversely with the child's need to be brought up in a stableenvironment, where she is loved and nurtured by the [G] family and enabledto take advantage of social, sporting, educational, and recreationalopportunities that are presented to her.[74] This is to allow not only for [K] and the [G] family's post-accidentissues to be dealt with, but also for [K] to take part in normal life as much aspossible.[75] There is a need for there to be a respectful relationship between thebiological parents, the [G]s, and the Ministry. The biological parents' role is asecondary one and access (in frequency and time) may be reviewed in future,Much will depend on [K]'s ability to cope with access. That requirescooperation all around. Both Mr [M] and Ms [S] need to be treated withrespect, just as they need to respect what others, especially the [G]s, are doingfor their daughter.[76] I grant the Ministry's application to reduce the frequency of access, toone afternoon per month, for a minimum of three and a half hours. This shallhave the effect of a final order.[77] Contact may be varied by agreed between the Ministry and Mr [M].[78) After the pre-Christmas access, there should be four weeks of noaccess, with a January access towards the end of that month but before schoolresumes. Thereafter, the monthly access regime may resume.[79] The access should give an opportunity for [K] to maintain a specialrelationship with her biological parents and a knowledge of the variouscultures of her ancestors.The appeal[43] In his appeal, Mr M seeks "the modification of the access order to provide for(as a compromise) fortnightly access". The appeal was advanced on the grounds that,in limiting access as he did, the Judge failed to give any or sufficient weight to:(a) the "status quo" of weekly supervised access;(b) the unchallenged evidence that the status quo was enjoyed by K;11 Chief Executive of Oranga Tamariki-Ministry For Children v M, above n 9, at [62].(c) the absence of evidence from Mr and Mrs G; and(d) the concerns raised about the psychologist's independence.[44] Counsel for the child joined the Chief Executive in opposing the appeal.Approach on appeal[45] The appeal is brought under s 341 of the Oranga Tamariki Act 1989 (the Act).It is a general appeal, by way of rehearing.12 It is an appeal not from the exercise ofdiscretion but from an evaluative assessment of what is in the best interests of thechild, taking into account the applicable statutory principles in play.13[46] Under r 20.19(1) and (3) of the High Court Rules, this Court may make anydecision it considers should have been made by the Family Court, direct the FamilyCourt to rehear the proceedings or to consider any matters this Court direct or makeany other order it thinks just.[47] As the Court of Appeal noted in Green v Green, however, when applying theAustin Nichols approach, it remains axiomatic that the onus is on an appellant toidentify the respects in which the judgment under appeal is said to be in error, toconvince the appellate court to reach a different view.14 Absent the identification ofsuch an error, the appellate court will not intervene.[48] An appellate court will also take into account any particular advantagesenjoyed by the trial court.15Discussion[49] Before turning to consider the specific grounds of appeal, there are somepreliminary observations I would make at the outset.12 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.13 Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1.14 Green v Green [2016] NZCA 486, [2017] 2 NZLR 321 at [30].15 At [31].[50] First, the procedural history I have set out above makes it clear that there havebeen very unfortunate delays in progressing the proceedings in the Family Court.Those delays seem to have largely been caused by what appear to be seriousdeficiencies in aspects of the administrative processes in the Family Court, andchanges in position by the Chief Executive have not assisted. No blame for thosedeficiencies can be laid at the feet of the Judges.[51] Relatedly, I acknowledge that the administrative delays and deficiencies maybe seen by the Chief Executive as justifying her decision, on two occasions, to makeurgent, ex parte applications with a view to altering radically Mr M's existing accessarrangements. The Family Court was, in both instances, skeptical about the need forurgency – in my view with some justification. That has had a twofold, and regrettable,effect.[52] The first is that Mr M's access was drastically limited (and the status quochanged) without giving him the opportunity to be heard. The second and inevitableconsequence is that the relationship between the Ministry and Mr M – which is bothinherently difficult, and difficult in fact – has been put under quite unnecessaryadditional strain. In circumstances where it is clearly important (and in the child's bestinterests) that the Ministry does everything possible to engender support from thechild's biological parents for the proposed care arrangements, that is most unfortunate.Section 5(a) of the 1989 Act seems on point.[53] That said, however, the evidence given by the social workers (which is at leastin part corroborated by the content of text message exchanges with Mr M) also makesit clear that Mr M has not always assisted his own cause. There is, in my view, somebasis in reality for the Ministry's view that Mr M has, on occasion, placed his ownwants and needs over K's and has been unhelpfully inflexible in various positions hehas taken. In particular, his understandable view that he has, thus far, been the mostconsistent adult presence in K's life has, I think, made it difficult for him to appreciatethat K's future welfare depends on her becoming fully integrated into the G family.And, in turn, that may require him to take more of a back seat role than he would wish.[54] The fundamental importance of K fully becoming a member of the G familyis, of course, reflected in the reasoning of the decision under appeal. Although thedecision does not refer to any authority for that proposition, it is, of course, reflectedin the Act itself. In particular s 13(2)(h) makes it clear that, in circumstances where achild cannot remain with, or be returned to, his or her family or family group, the Courtmust, in determining the welfare and interests of that child, have regard to the principlethat the child should be given an opportunity to develop a significant psychologicalattachment to the person in whose care the child or young person is placed. In a casesuch as the present, that principle must, as a matter of logic, predominate over thoseother s 13 principles which are predicated on the possibility of the child being returnedto his or her family.16[55] The principle articulated in s 13(2)(h) is supported by experts in this area.Ms Graham referred me, in particular, to a relatively recent New Zealand academicarticle in which the author discusses (inter alia) the importance of stability for childrenin care and how "placement disruption" has particularly harmful consequences forchildren.17 The author notes that children who are disrupted from their foster homescan face serious mental health issues and feelings of rejection, resulting in badbehaviour, which perpetuates a cycle of more disruption. The author says this is "whyprotecting long-term and permanent placements from any disruption is so critical". Inshort, for children to flourish, to feel safe, secure and to acquire relational permanence,they need unconditional commitment by loving, permanent parents.18[56] So, it is with all those background points in mind that I turn to consider Mr M'sappeal.16 Those principles are predicated upon the proposition that the primary role in caring for andprotecting a child lies with the child's family. By definition, however, that proposition ceases toapply where (as here) there is no prospect of the child's return to the care of her family.17 Michael Tarren-Sweeney "The developmental case for adopting children from care" (2016) 21(4)Clinical Child Psychology and Psychiatry 497.18 See also Gillian Schofield "The Significance of a secure base: A psychological model of long-termfoster care" (2002) 7 Child & Family Social Work 259.Status quo[57] As Mr Bowe for the Chief Executive correctly stated, the status quo by the timeof the hearing was not weekly supervised access but monthly access. The reason forthat was, of course, the as yet unexplained without notice application made by theChief Executive in May 2018. As will be evident from my earlier comments, I echothe concern expressed by Judge McMeeken about that; in my view it unfairly andunjustifiably prejudiced Mr M's case by shifting the goalposts without giving him anopportunity to be heard.[58] Be all that as it may, however, the consequences of that action cannot beignored. K's best interests and welfare will always trump the interests and rights ofMr M. And the present reality is that, for almost a year now, she has only been havingmonthly contact with Mr M. Thus the status quo at the time of the hearing beforeJudge Brandts-Giesen and at the date of his judgment has only become moreentrenched.[59] So even if I were inclined to the view that the status quo ante (ie the state ofaffairs up until May 2018) should have been given more weight in the Family Court itwould be impossible to give it much weight now. This ground of appeal cannotsucceed.K enjoyed weekly access[60] I accept that there was no evidence before the Court to suggest that K did notenjoy her weekly access with Mr M. The Judge did not, of course, suggest otherwise.The reality is, however, that K's enjoyment is not necessarily synonymous with herwelfare and best interests. The bottom line is that the Chief Executive believed (andthe Court accepted) that weekly access was an impediment to K's full integration intothe G family. The most telling piece of evidence in that respect came from the socialworker, Ms Retallick, who said (in her 2017 affidavit):At the current level of weekly access, [K] has 52 access visits with Mr [M]per year; 6 visit[s] with her mother, Ms [S]. The intent is for [K] to havemonthly sibling contact with her younger sister [J]. This equates to 70 accessvisits with biological whanau each calendar year.It is my belief that 70 access visits each year is too much for [K] or any childand their caregiver to maintain.Additional to this is 8 weekly visits19 to [K] by the Ministry social worker.This is another scheduled 7 visits per year and does not account for additionalvisits by the social worker.Therefore this would be at least 77 visits [K] would need to attend or bepresent at, which in total would be approximately every 1.5 weeks, [K] wouldhave a scheduled appointment [sic].20 This does not account forextra-curricular activities or learning supports or personal or her Fosterfamily's activities.The impact of this is that [K] does not have the opportunity or time to establishand maintain relationships with her caregivers and their extended whanau whoare the people who [K] rely on to meet her daily needs and provide the stabilityand security a child needs.[K]'s school has identified that she is behind the National average in eachsubject for her age. It is intended that the Ministry support [K] to seek theassistance she needs to progress her academic progress. This would require[K] to have sessions outside of school hours. Therefore, this is another weeklycommitment that [K] would have.[K] also needs the opportunity to engage in extracurricular activities to supporther social development and for enjoyment and learning. At this stage [K]would have access once a week, additional learning support once a week andan extra-curricular activity once a week, and on every 3rd to 4th week andadditional access with either Ms [S] or [J]. This level of commitment for a6 year old leaves limited time for [K] to spend with her caregivers and theirson or to have 'play dates' or spend with friends.[61] It seems to me that, on any analysis, K's commitments external to the G familyare too many and too frequent. The Ministry's position that the number of thesecommitments (almost 70 per cent of which consisted of Mr M's weekly access) wouldcut across her integration into the G family and, potentially make her less secure inthat placement is, in my view, right.Absence of evidence from the Gs[62] There is no dispute that the Gs did not give evidence. As noted earlier, Mrs Ghad sworn an affidavit over a year earlier but there is nothing to suggest that it wasread by the Judge or taken into account. He expressly recorded that the Gs had not19 By which is meant one visit every eight weeks.20 Ms Retallick's maths seems to be back to front. What she must, I think, mean is that K wouldhave 1.5 scheduled appointments or visits each week.attended and could not be cross-examined and that any reference to their views byother witnesses was hearsay.[63] While I think it is regrettable that at least one of the Gs did not attend thehearing,21 I consider the Judge had sufficient evidence before him to form the viewsthat he did. I have referred, in particular, to Ms Retallick's affidavit above. She wascross-examined on it. And if one thing is clear, it is that a further adjournment of thehearing of an already much delayed matter should not have been countenanced. Givenwhat I have said earlier about the "status quo" an adjournment would, most certainly,not have operated in Mr M's favour.[64] The absence of evidence from the Gs did not, in my view, constitute an errorof process or give rise to a substantive error by the Judge.Ms Phillips' independence[65] Mr M says that Ms Phillips (the psychologist) was not independent. He alsoquestioned her interview practices. Those were both matters explored byMr McKenzie in his cross-examination of Ms Phillips. The Judge also asked herquestions about it.[66] The difficulty with advancing this as a ground of appeal, however, is that apartfrom expressly recording Mr M's concerns, the Judge did not refer to Ms Phillips'evidence at all in his decision. As I have already noted there was other evidence whichsupported the position he took and the conclusions he reached. As well, he was nodoubt assisted by the views expressed by counsel for the child, Ms Graham. As ithappens, her views largely coincided with Ms Phillips'. But there is nothing to suggestthat the Judge gave Ms Phillips' views any particular independent weight. I discernno error here.21 I note that no point was taken about that at the time by Mr M's counsel.Conclusion[67] While, like Judge Brandts-Giesen, I have sympathy with Mr M's position, theconclusion that his position is not consistent with K's welfare and best interests wasclearly open to the Judge on the evidence. Moreover, it is a conclusion with which Iagree. While there are aspects of the procedural path which preceded the hearing inthe Family Court which are far from satisfactory, they do not alter that view. I have,nonetheless, placed them on record.[68] The appeal is dismissed.[69] If any issue of costs arises and cannot be resolved by counsel, memoranda maybe submitted.___________________________Rebecca Ellis J