NOTE: PURSUANT TO S 437A OF THE ORANGA TAMARIKI ACT 1989, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER
INFORMATION, PLEASE SEE
https://www.justice.govt.nz/family/about/restriction-on-publishing-judgments/	
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE	
CIV-2018-404-2102
[2019] NZHC 833	

UNDER	the Oranga Tamariki Act 1989, section 341	
IN THE MATTER	of a reserved decision of a Family Court Judge	
BETWEEN	MC
Appellant	
AND	THE CHIEF EXECUTIVE, ORANGA TAMARIKI
Respondent	

Hearing:	11 April 2019	
Appearances:	Appellant on own behalf with Mr Saleh as McKenzie Friend R Bowe for the Respondent
M Muller – lawyer for children	
Judgment:	16 April 2019	

JUDGMENT OF GORDON J

This judgment was delivered by me on 16 April 2019 at 12 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors:	Oranga Tamariki Legal Services, Wellington Counsel:	M Muller, Manukau, Auckland
Copy To:	The appellant

MC v CHIEF EXECUTIVE, ORANGA TAMARIKI [2019] NZHC 833 [16 April 2019]

[1]	This is a preliminary hearing of interlocutory matters that need to be resolved before the appeal, brought by the appellant, MC, against a decision of a Family Court Judge sitting at Manukau, dated 30 August 2018,1 can be set down for a hearing.

[2]	MC is the mother of five children who were removed from her care and the care of TP by Oranga Tamariki – Ministry of Children (OT). Mr O2 is the biological father of the four eldest children, S (a boy), A (a girl), N (a boy) and R (a girl), who were aged 17, 10, 9 and 8 years respectively at the time of the hearing in the Family Court.

[3]	TP is the biological father of the youngest child, K (a girl), aged 3 years at the time of the hearing in the Family Court.

[4]	On 24 May 2016 the Family Court made an order placing all five children in the custody of the Chief Executive of Oranga Tamariki – Ministry for Children (the Chief Executive), pursuant to s 78 of the Oranga Tamariki Act 1989 (the Act). That order remained in place at the time of the Family Court hearing. At that hearing, MC and TP were seeking that the five children be returned to their care.

[5]	In her decision, the Family Court Judge made the following orders: an order discharging the s 78 interim custody order; a declaration that MC’s five children are in need of care and protection;3 a s 101 custody order in favour of the Chief Executive in relation to four of the children;4 an order under s 110(2)(b) appointing the Chief Executive as additional guardian of all the children; and a determination pursuant to s 18B(2)(c) that there was no realistic possibility of the return of any of the children to the care of either MC or TP.

1	Chief Executive of Oranga Tamariki v MC [2018] NZFC 4705.
2	Mr O took no steps in the proceedings in the Family Court and the judgment records that his whereabouts are unknown.
3	Pursuant to s 14(1)(a) and (b) of the Oranga Tamaraki Act 1989.
4	Excluding the 17 year old son, S.

Procedural background

[6]	MC represented herself in the Family Court.5 The Judge declined leave for MC to have a McKenzie friend because of the manner in which the proposed McKenzie friend had conducted himself in court. MC was given the option of having a different McKenzie friend (a Mr Saleh who had sought appointment as amicus curiae) but MC declined that option on the basis that Mr Saleh did not know her case well enough.

[7]	MC has continued to represent herself in this court. At a conference before Hinton J on 5 February 2019, the Court directed a hearing to address the following preliminary issues:

(a)	To identify the actual points on appeal;

(b)	To determine whether leave should be granted for MC to file affidavits in support of her appeal. (Several affidavits were currently on the Court file);

(c)	Whether MC’s application for a stay should be granted pending the hearing of the appeal; and

(d)	Whether a new McKenzie Friend or other assistance can be appointed for MC.

[8]	The fourth matter above was resolved prior to a follow up conference on     26 February 2019. The minute for that conference records that MC advised the Court that Mr Saleh had agreed to assist her and that she was comfortable with that. The minute also records that counsel confirmed they had no objection to Mr Saleh assisting MC as a McKenzie Friend. I therefore confine myself to addressing the remaining three issues. I note that Mr Saleh assisted MC at the hearing before me.

5	The Judge noted that this was despite having had at least four different lawyers in the past, Chief Executive of Oranga Tamariki v MC, above n 1, at [13].

Points on appeal

[9]	MC’s notice of appeal dated 27 September 2018, runs to nine pages. In its present form it is expressed in language not acceptable to this Court. I endorse the statements made by Toogood J in his minute of 18 January 2019 commenting on the language used by MC in documents filed to that date. The Judge’s comments were that the documents contain grossly offensive and derogatory remarks about the Family Court Judge and other persons involved in the case. The Judge continued:

Many of the allegations made in the notices of appeal and application for leave to appeal, and in [MC’s] affidavit, are liable to be struck out on the grounds that they are scandalous, an abuse of the Court’s process and irrelevant. Moreover a number of the allegations against the Family Court Judge may be considered a contempt of court.

[10]	MC endeavoured to address those criticisms by filing a statement of claim dated 4 April 2019. That document does not identify points on appeal.

[11]	It is, however, possible to discern what would be considered proper grounds amongst the irrelevant and scandalous material in the original notice of appeal. At the hearing I discussed with MC the points that I considered might be distilled from her material. Taking into account MC’s oral submissions proposing amendments to my suggestions and her additions to the points I raised, the following are the points for MC’s appeal:

(a)	The Family Court Judge failed to follow due process at the hearing. The hearing was therefore unfair;

 Particulars:

(i)	The Judge erred in refusing to adjourn the hearing to allow MC to obtain legal representation;

(ii)	The Judge erred in proceeding without a McKenzie friend to assist MC;

(iii)	MC’s affidavit sworn 8 June 20186 should have been admitted as evidence in the hearing;

(iv)	The Court should not have accepted for filing the application by the Chief Executive for a s 18B determination;

(v)	The Judge erred in not giving MC an opportunity to respond to evidence (including plans and recommendations in relation to custody orders) filed on behalf of Oranga Tamariki;

(vi)	The Judge did not allow MC to complete her cross-examination of a social worker, Ms Mahe-Tupou.

(b)	The Judge erred by failing to take into account injuries sustained by MC’s children while in State care;

(c)	The Judge failed to give any weight to MC’s evidence;

(d)	The Judge misapplied the law in relation to s 101 orders;

(e)	The Judge misapplied the law in relation to s 18B orders;

(f)	The Judge gave inappropriate weight to the evidence of witnesses for Oranga Tamariki;

(g)	The Judge should not have admitted third party hearsay evidence; and

(h)	The Judge failed to take into account the views of the children as they were expressed to MC.

[12]	As the notice of appeal is currently drafted, certain witnesses are named and it is asserted that they used fabricated evidence to mislead the Court. The notice of

6	Three days before the Family Court hearing.

appeal also says that claims at the Family Court hearing by OT and the police that thorough investigations were undertaken, were untrue.

[13]	In order for any such ground of appeal to be advanced MC would need to lay a proper evidential foundation for any claim that a named witness deliberately misled or lied to the Family Court. Without any such foundation being before me, I do not include such a ground in the points of appeal.

Leave to file affidavits in support of appeal?

[14]	MC has sworn an affidavit dated 27 September 2018. There is an unsworn affidavit from MC dated 1 February 2019 and a further sworn affidavit of 4 April 2019. Additionally, there is a sworn affidavit of Stephen Evans dated 25 September 2018. Mr Evans was the person who sought to assist MC in the Family Court as a McKenzie friend.

[15]	Hinton J had this to say about the affidavits in her minute of 5 February 2019:

[6]    [MC]/her assistant should give very careful consideration to whether the affidavits filed are necessary or whether they should be significantly shortened and redrafted so that they are worded in much more appropriate language for Court proceedings. Otherwise, it is frankly unlikely that the affidavits will be allowed. It would be better for [MC] to be able to file such limited and appropriate information as is really necessary, than to press on trying to introduce the documents that I see on the file. [MC] did file some truncated documents on 1 February 2019, but these would appear to still need a lot of attention. [MC] really needs assistance in this regard.

[16]	MC has subsequently filed an affidavit dated 4 April 2019. It is shorter than the earlier affidavits, but really that is all that can be said about the new affidavit in its favour. In her oral submissions MC said she now sought to rely only on the 4 April 2019 affidavit. That was filed in an effort to address the comments made by Hinton J.

[17]	Rule 20.16 of the High Court Rules applies. A party to an appeal may adduce further evidence only with the leave of the Court.7 The Court may grant leave only if there are special reasons for hearing the evidence. An example of a special reason is

7	High Court Rules 2016, r 20.16(2).

that the evidence relates to matters that have arisen after the date of the decision appealed against and that are, or may be, relevant to the determination of the appeal.8

[18]	As is stated in McGechan on Procedure:9

In general an appeal proceeds on the evidence which was presented to the decision-maker, and the parties do not have an opportunity to bolster their case with new evidence on appeal. … It is well established that, apart from updating evidence concerning matters which have occurred since the hearing, the power to grant to leave is sparingly exercised.

[19]	Evidence of events that occurred prior to the hearing in the Family Court is mostly removed from the 4 April 2019 affidavit. To the extent that any such evidence remains, it does not relate to matters that have come to light following the Family Court hearing. I do not consider there is a special reason for that content to be introduced.

[20]	Other content includes scandalous allegations against the Family Court Judge; allegations against social worker(s) without any apparent evidential basis; submissions on the law including statutes that have no apparent relevance to the issues in the hearing; and irrelevant content.

[21]	I refuse leave for MC’s affidavit of 4 April 2019 to be filed in the appeal. For completeness, I also refuse leave for the affidavit of 27 September 2018 and the unsworn affidavit of 1 February 2019 to be filed (although as noted, MC no longer seeks to have those two affidavits admitted).

[22]	In relation to Mr Evans’ affidavit he makes comments critical of TP’s representation; he disputes events that occurred in the Family Court prior to the Judge refusing him leave to assist as a McKenzie friend, and he makes scandalous comments about the Judge. I also refuse leave for this affidavit to be admitted at the hearing of the appeal (I understood that in any event MC did not pursue the admission of this affidavit).

8	Rule 20.16(3).
9	McGechan on Procedure (looseleaf ed, Thomson Reuters) at [HR20.16.01].

Application for a stay

[23]	MC should have filed her application for a stay in the Family Court. However, I accept the submission made by Mr Bowe, appearing on behalf of the Chief Executive, that this Court has concurrent jurisdiction to grant a stay. I agree with Palmer J who held, in SW v Chief Executive of the Ministry of Social Development:10
Counsel for the children noted that Harrison J in AZ v MZ suggested, provisionally, that the two alternatives of an application for a stay to the Family Court and an application to the High Court under a predecessor to the current rule might be mutually exclusive. I do not consider that is so in relation to r 20.10(2)(b). The schemes of the respective Acts and rules appear to suggest that  the jurisdictions, of the Family Court to grant  a stay under        s 341(3) and of the High Court to grant a stay under r 20.10(2)(b), are concurrent.

[24]	Mr Bowe and lawyer for the children, Ms Muller, (correctly) agreed on the test in this area of the law for whether a stay should be granted. The relevant principles are those set out in Crosby v Crosby,11 as approved with one reservation and one addition by the Court of Appeal in WAH v WTW as follows: 12

[20]	In Crosby v Crosby Priestley J adopted (with one exception) the following summary of principles stated by Judge David Mather in relation to applications for stay in cases in the Family Court:

[13]	From the above I extract the following principles as relevant in respect of applications for stay in cases such as the present:

[a]	The Family Court has power to entertain an application for stay of proceedings in respect of an appeal against its judgment.

[b]	The overriding consideration in such an application is the welfare of the children.

[c]	Whether or not the appeal will be rendered nugatory if a stay is refused will be a highly relevant consideration.

[d]	The arguments in favour of a stay will be stronger if the decision under appeal has the effect of significantly changing the status quo.

10	SW v Chief Executive of the Ministry of Social Development [2016] NZHC 461 at [19].
11	Crosby v Crosby HC Auckland AP124-SW01, 21 December 2001.
12	WAH v WTW [2010] NZCA 344.

[e]	The Court will have regard to any evidence of lack of bona fides in the filing of an appeal and an application for stay as a consequence.

[f]	The reluctance of the High Court on appeal to interfere with findings of credibility, and the disposal of an appeal largely or entirely on the evidence heard in the Family Court, decrease the prospects of successful appeal and hence weaken the arguments in favour of a stay.

[g]	Each case will turn on its own facts. The length of time before the appeal is likely to be heard, the current circumstances of the parties and children and the consequence of delay pending the hearing of the appeal will all be relevant.

[21]	The only reservation expressed by Priestley J was in relation to principle (f). The Judge thought it would be wrong if there was a perception that the prospects of success on appeal would be decreased or would be minimal in cases depending substantially on findings of credibility and the exercise of discretionary judgment. Priestley J pointed out that there may be other reasons such as developments since the initial hearing which could influence the outcome of the appeal and that appellate judges would, in any event, give anxious consideration afresh to all relevant factors.

[22]	We endorse the principles expressed by Judge Mather as applicable to a stay of execution on appeal subject to the important additional consideration of the merits of the appeal. Plainly, a stay will be more likely to be granted where there are strong grounds to support the appeal and vice versa. We also endorse Priestley J’s observations discussed in the preceding paragraph about the role of the High Court (on appeal from the Family Court) or the role of this Court (on appeal from the High Court where original jurisdiction has been exercised as it has been in this case).

[23]	Although Crosby was decided under the Guardianship Act 1968, we see no difference in approach to stay applications under the Care of Children Act 2004. The welfare and best interests of the child remain the first and paramount consideration.

[25]	The welfare and interests of the children are also the first and paramount consideration of the Act.13

[26]	As I understand MC’s argument on the stay application, it is that the children were not lawfully in the custody of the Chief Executive under s 78 of the Act (which was the order in effect  until the orders  were made by the Family Court  Judge on  30 August 2018). Therefore, she says granting her application would not only stay the effect of the Judge’s orders but would also recognise that the children had not been

13	Oranga Tamariki Act 1989, s 6.

subject to a lawful order under s 78. Thus a stay would mean that the children would be returned to her care pending the hearing of her appeal.

[27]	MC appeared to submit that an order under s 78 is only valid for a period of 90 days.

[28]	I do not accept that is correct. In any event, a challenge to the earlier order under s 78 should be brought in the Family Court.

[29]	Notwithstanding MC’s limited basis for her stay application, for completeness I apply each of the principles from WAH v WTW to the facts of this case save for (a). I have already addressed the concurrent jurisdiction of the Family Court and this Court.

(b)	Welfare of the children

[30]	The children have been in the care of the Chief Executive since May 2016 when the Chief Executive obtained the s 78 custody order.

[31]	Ms Muller advises the Court that once the oldest child, S, turned 18, he made a decision to travel overseas to spend time with his father. He remains there to date. All the other children remain with their current caregivers where they have been for a significant period of time.

[32]	The second son, N, who is developmentally delayed and is non-verbal, has been with CCS disability family caregivers since October 2016.

[33]	The three girls were moved to a whānau placement on 7 May 2017 where they continue to live.

[34]	The children’s views were presented to the Family Court Judge by the lawyer for the children. Those views were described by the Family Court Judge as follows:14

[87]	… Obviously [N] was not able to articulate any views to Ms Muller, but she did observe him in his class on 31 May 2018, and spoke to the School

14	Chief Executive of Oranga Tamariki v MC, above n 1.

Principal who had no concerns in respect of him. Indeed, it was reported that
[N] was making significant progress, including saying more words. He is very settled both at school and in his placement.

[88]	Ms Muller travelled to Whanganui on 2 June 2018. Although she was able to spend some time with [K] she did not specifically speak with her about these proceedings. It was apparent to Ms Muller however, that she looked happy and healthy. She moved between her caregivers, whom she referred to as Mum and Dad, with ease.

[89]	[R] was as articulate and engaging as ever. She told Ms Muller she wished to remain with her caregivers ‘forever’, and then went onto give a number of reasons why that was so, the most telling of which was that their house was ‘her safe place.’ She also talked about her mother and said she still loved her and missed her, but did not want to live with her anymore. She did not even want to see her without Social Workers being present. … She talked about being smacked by her mother and [TP], and said she did not feel safe with them.

[90]	[A] was described as a confident little girl, mature for her age and not afraid to speak her mind. She wishes to remain with her caregivers as well. She described them as good people who are special to her and her sisters. She does not want to return to her mother’s care. … She described [TP] as a ‘horrible man’ who smacked them hard and always gave them hidings.

[35]	While a stay of the Judge’s decision would not change the children’s living arrangements (as the s 78 order would remain in place), I agree with the Judge that the children cannot be expected to wait any longer and they are entitled to certainty and on-going security.15 It would therefore not be in the children’s welfare and interests for a stay to be granted.

(c)	Whether the appeal would be rendered nugatory if a stay is refused

[36]	As the children have not been in MC’s care since May 2016, the appeal will not be rendered nugatory if a stay is refused.

(d)	Does the decision under appeal significantly change the status quo?

[37]	The children (apart from S) remain in the custody of the Chief Executive and placed with their approved caregivers. The decision under appeal did not have the effect of changing the status quo (apart from giving certainty and on-going security to the children).

15	At [108].

(e)	Any lack of bona fides in the filing of an appeal

[38]	I accept that MC feels strongly about the decision of the Family Court Judge. To that extent it cannot be said there is lack of bona fides in the filing of her appeal.

(f)	Whether the appellant seeks to interfere with findings of credibility

[39]	Much of the basis of the original notice of appeal is that the witnesses for the Chief Executive acted with criminality and in bad faith. In other words, there is an attack on findings of credibility by the Family Court Judge (but as already noted, there is no evidential foundation (yet apparent) for these allegations).

(g)	Length of time before the appeal is likely to be heard and consequence of delay

[40]	If a stay is granted the children will remain in the custody of the Chief Executive.

(h)	Merits of the appeal

[41]	Even if MC seeks to proceed relying on the grounds of appeal as redrafted in this judgment, I do not consider she has a realistic prospect of success. The children were removed from the care of MC and TP as a result of concerns about domestic violence, alcohol abuse, parental neglect and assaults on the children. The judgment under appeal contains a comprehensive review of evidence supporting those allegations.

Result

[42]	MC may proceed with her appeal on the grounds as set out in [11] above.

[43]	MC’s application to adduce further evidence on appeal by way of her affidavits and the affidavit of Mr Evans already filed is refused.

[44]	MC’s application for a stay is refused.

Gordon J