NOTE: PURSUANT TO S 169 OF THE FAMILY PROCEEDINGS ACT 1980, 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/	
NOTE: NAMES OF THE PARTIES IN THIS MATTER HAVE BEEN ANONYMISED.	
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE	
CIV-2023-404-000866
[2023] NZHC 2733	

BETWEEN	A PEELING
Appellant	
AND	J JACOBS
First Respondent

F GORDON
Second Respondent	

Hearing:	14 September 2023	
Appearances:	Appellant in Person (by VMR)
A Bell and J Warrington for the First Respondent No appearance by or for the Second Respondent A Ashmore as Lawyer for the Children	
Judgment:	29 September 2023	

JUDGMENT OF WALKER J

This judgment was delivered by me on 29 September 2023 at 3 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

[PEELING] v [JACOBS] [2023] NZHC 2733 [29 September 2023]

[1]	Ms Peeling is the maternal aunt of two children aged under 12 years old. Following Care of Children Act 2004 (COCA) proceedings spanning some seven years, the children are in the day-to-day care of their father pursuant to a final parenting order dated 12 April 2022. Both mother (the second respondent) and father (first respondent) are joint guardians of the children. While the children are in the primary care of their father in Auckland, they have contact with their mother who lives outside Auckland each second, fifth and eighth weekend of the school term and one week in each school term holiday.

[2]	Ms Peeling was not a party to the COCA proceedings. She lives in Christchurch. She has not seen the children since 2020 but explained to the Court that this is not due to any lack of effort on her part. She says that neither parent will facilitate contact and they continue to block her attempts to communicate with the children. Consequently, she does not currently have a relationship with them. She says that she wants to have the opportunity to impart to them her knowledge and awareness of their shared whakapapa and Samoan cultural identity. She fervently believes that the respondents do not have the strong cultural family knowledge and experience that she has.

[3]	In May 2022, after the conclusion of the parenting proceedings, Ms Peeling applied to the Family Court to be a Court-appointed additional guardian for a specific purpose.1 She seeks to have care of the children over a few days each year when she visits Auckland or in Christchurch. She also referred in the written material she has filed to a safety “vetting” role. It is not altogether clear what Ms Peeling means by this and it did not have any prominence in the hearing.2 I glean that through a background in social work roles, Ms Peeling considers that she is well placed to provide checks on the well-being of the children.

1	Section 27, Care of Children Act 2004.
2	The Judge noted that Ms Peeling also wishes to do “background screening” to ensure the children are safe as she is concerned that in future, they may go through similar issues to their parents which she witnessed them experience as they grew up.

[4]	The Family Court struck out Ms Peeling’s application for additional guardianship on the basis of written submissions from the parties.3 This was initiated by the Judge at a directions conference. There was no substantive hearing.

[5]	Ms Peeling now appeals that decision. The essential issue on the appeal is whether the Family Court erred in striking out her guardianship application. While that much is inherent in any appeal, the actual grounds of appeal are not well particularised in the notice of appeal, or in any other document. This is notwithstanding various invitations by the Court and multiple extensions of time to enable Ms Peeling to identify the grounds she relies on.

[6]	Faced with this difficulty, the first respondent applied to strike out the appeal. He did so under r 15.1 of the High Court Rules 2016 (the Rules) and alternatively in reliance on the inherent jurisdiction. He seeks indemnity costs. The primary grounds are the lack of particularised points of appeal and lack of utility. The utility ground is so interwoven with the argument on appeal that all parties agreed to proceed with the hearing of the substantive appeal. Nonetheless, the strike out application remained on foot.

The views of the children

[7]	At the heart of this appeal are contact and guardianship issues. The paramount consideration is therefore the welfare and best interests of the children.4

[8]	Lawyer for the children appeared at the hearing and filed written submissions in advance of the hearing. The Court expresses its gratitude for the assistance provided by Mr Ashmore. Mr Ashmore was only recently appointed following withdrawal of the prior lawyer for the children. Mr Ashmore considered that the children’s views were required to be put before the Court on this application. He therefore interviewed the children with the permission of the first respondent and in his absence (with consent). In a memorandum filed with the Court, he recorded:

7.	In terms of the application the children were strongly opposed to the same. [A] made the point that they had only met their aunty maybe

3	Reserved Judgment of Judge L M Morrison dated 28 March 2023.
4	Section 4, Care of Children Act 2004.

once or twice in their lives and [B] agreed. There was some discussion between [A] and [B] as to when the last time they had seen their aunty was with the consensus being over 3 years ago.

8.	We also discussed generally the concept of the matter being back before the Court. [A] made the point that she was “sick of Court” and
[B] agreed.

9.	I mentioned to the children that what the Court was thinking about on Thursday was saying that the Court application would have to stop. Both children were very supportive of this proposition, again reiterating that the family had been in Court for a very long time and they wanted it to end so they could “live a normal life”.

Approach to appeal

[9]	Mr Ashmore referred me to the decision of RAW v CAR.5 This decision discusses in careful terms whether staying or dismissing a proceeding under s 140 of COCA involves the exercise of a discretion because it is couched in permissive terms. I see s 140 as analogous to r 193 of the Family Court Rules 2002. I respectfully agree with Duffy J that an appeal against a decision striking out such proceedings necessarily involves considerations of the best interests of a child which is a matter of assessment and judgment, not discretion.

[10]	I am satisfied that this appeal is a general appeal in which the appellate court has the responsibility of arriving at its own assessment of the merits of the case, but the appellant has the onus of satisfying me that I should differ from the decision under appeal.6 This is consistent with the decision of the Supreme Court in Kacem v Bashir.7

The Family Court decision

[11]	After traversing the procedural history, the Judge noted the Court’s power to appoint a guardian in addition to any other guardian of the child, including for a specific purpose. She noted that the terms of any order should not be so broad as to undermine the powers of the child’s natural guardians. She identified the most relevant principles in ss 5 and 6 of the Care of Children Act 2004 for present purposes as:

5	RAW v CAR [2012] NZHC 1470.
6	Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [5].
7	Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1, at [32].

(a)	children’s care, development, and upbringing should be primarily the responsibility of their parents, and should be facilitated by ongoing consultation and co-operation between their parents, guardians and any other person having a role in their care under a parenting or guardianship order;8

(b)	children should have continuity in their care, development, and upbringing;9 and

(c)	a child should continue to have a relationship with both parents and their relationship with whanau, hapū and iwi should be preserved and strengthened;10

[12]	The Judge noted that the Court can decline to make an order where it does not serve the best interests and welfare of the child. This includes circumstances in which the appointment of an additional guardian would cause actual and/or potential conflict between the appointed person and the child’s other guardians.11

[13]	The Judge set out the requirements of r 193 of the Family Court Rules 2002 (FCR) pursuant to which the Court may order that all or part of an application is struck out.

[14]	The Judge then set out the positions of the respective parties. She recorded Ms Peeling’s position as her desire to impart her Samoan cultural knowledge on the children while they are still young so that they “have tools added to their kete of knowledge to be accessed if and when they feel the calling”. She referred to Ms Peeling’s affidavit in which she states that “there is a total disregard [shown] by both parents as to the importance of nurturing my role in the [children’s] lives”.12

[15]	The Judge notes that the second respondent did not consider the appointment necessary as she herself is exploring her Samoan culture; her mother, the children’s

8	Care of Children Act 2004, ss 5(b), 5(c).
9	Section 5(d).
10	Section 5(e).
11	At [8] citing JBT v BDT [2012] NZFC 842 at [51]–[53].
12	Affidavit of A Peeling dated 30 May 2022 at 3.

Samoan grandmother has contact with them daily; and the children do not have an established and ongoing relationship with Ms Peeling.

[16]	The Judge recorded the first respondent’s position as opposed to Ms Peeling’s application as a result of, among other things, Ms Peeling’s persistent effort to contact the children. The respondent’s overall position was captured in his affidavit evidence as being focused on maintaining the settled and consistent new routine the children have to promote the secure attachments they have to both parents.

[17]	Lawyer for the children at that time provided a report to the Court identifying procedural issues with Ms Peeling’s application and her view that it was not supported by relevant or persuasive grounds and is ill-conceived. Notably, she had concluded that it was not appropriate to seek the children’s views due to the turmoil the children had faced over many years of conflict across the litigation.

[18]	A further report was provided by the children’s Auckland-based lawyer. She too considered that bringing the application to the attention of the children risked system abuse of them should they learn that another family member was engaging in Family Court litigation about them.

[19]	I pause to interpolate that counsel for the children were highly experienced. The decision not to re-interview the children was a considered one and no doubt informed by a body of academic thought which suggests that continued involvement in family court processes can amount to a form of system abuse of young children.

[20]	Other matters raised in the affidavit evidence of the parties were recorded in the judgment. None of those matters need to be recounted in this judgment as I do not consider they informed the Judge’s conclusion other than to illustrate the discord between Ms Peeling and the respondents. Suffice it to say, Ms Peeling and the respondents do not see eye to eye and her approach is certainly not welcomed by the respondents.

[21]	The Judge began her analysis by agreeing with counsel for the children that the guardianship application had to show a demonstrable benefit to the children and that

orders about them must be in their best interests and welfare. She noted that any additional guardian appointed needs to be able to cooperate and consult with existing guardians. She said:13
I fail to see how Ms Peeling can do this. She has a tentative relationship with Ms Gordon. She has a seemingly hostile relationship with Mr Jacobs. Her appointment as an additional guardian stands to bring more conflict into the children’s lives as a result.

[22]	She held:

[24]	I agree with Ms Corry that Ms Peeling’s application is ill-conceived. Ms Peeling presents as more concerned with her own desire to be recognised as an important and valued part of the children’s lives. Her words and actions show little to no insight into what is best for the children. She displays a complete lack of respect and value of the children’s parents who are the most significant adults in their lives and who are best placed to enhance and nurture their cultural understanding, learning and values. I note from the evidence that the children currently have other avenues of deepening their understanding and connection with Samoan culture. In essence, her application is based on her own needs, not those of the children.

[25]	The children do not need to be exposed to further conflict regarding their care arrangements. Given the history of proceedings between their parents, that is not in their best interests and welfare. I agree with the submissions of Ms Corry and Ms Green that the children do not need to be re-interviewed by Lawyer for Child, a psychologist or any other professional. They are entitled to be nurtured and to grow in the settled and loving care regime within which their parents are co-operating.

[23]	Consequently, the Judge considered there is no reasonable basis for the application to be brought and that to allow it to continue would unnecessarily expose the children to further litigation which would of itself be an abuse of process.

The legislative framework

[24]	Sections 4, 5 and 6 of COCA are key to understanding the legislative framework. Section 4(1) provides that the welfare and best interests of a child in his or her particular circumstances must be the first and paramount consideration. No gloss is needed on this provision. It means what it says.

13	At [23].

[25]	Section 4(2) requires that any person considering the welfare and best interests of a child in his or her particular circumstances must take into account. As relevant, it provides:

(a)	the principle that decisions affecting the child should be made and implemented within a time frame that is appropriate to the child’s sense of time; and

(b)	the principles in s 5;

[26]	Section 5 sets out the principles relating to a child’s welfare and best interests. It reads:

5	Principles relating to child’s welfare and best interests

The principles relating to a child’s welfare and best interests are that—

(a)	a child’s safety must be protected and, in particular, a child must be protected from all forms of violence (as defined in sections 9(2), 10, and 11 of the Family Violence Act 2018) from all persons, including members of the child’s family, family group, whānau, hapū, and iwi:

(b)	a child’s care, development, and upbringing should be primarily the responsibility of his or her parents and guardians:

(c)	a child’s care, development, and upbringing should be facilitated by ongoing consultation and co-operation between his or her parents, guardians, and any other person having a role in his or her care under a parenting or guardianship order:

(d)	a child should have continuity in his or her care, development, and upbringing:

(e)	a child should continue to have a relationship with both of his or her parents, and that a child’s relationship with his or her family group, whānau, hapū, or iwi should be preserved and strengthened:

(f)	a child’s identity (including, without limitation, his or her culture, language, and religious denomination and practice) should be preserved and strengthened:

(g)	a child must be given reasonable opportunities to participate in any decision affecting them.

[27]	I note that s 5(g) was inserted by s 4 of the Family Court (Supporting Children in Court) Legislation Act 2021 and came into force on 16 August 2023, after the Judge’s decision in this proceeding.

[28]	Section 6 reads:

6	Child’s views

(1AAA) The purpose of this section is to implement in New Zealand Article 12 of the United Nations Convention on the Rights of the Child.

(1)	This subsection applies to proceedings involving—

(a)	the guardianship of, or the role of providing day-to-day care for, or contact with, a child; or

(b)	the administration of property belonging to, or held in trust for, a child; or

(c)	the application of the income of property of that kind.

(2)	In proceedings to which subsection (1) applies,—

(a)	a child must be given reasonable opportunities to express views on matters affecting the child; and

(b)	any views the child expresses (either directly or through a representative) must be taken into account.

[29]	Again, s 6(1AAA) came into force on 16 August 2023.14

[30]	Section 13 provides that COCA is a code except as otherwise expressly provided in the Act. In other words, it has effect in place of the rules of the common law and of equity as to the guardianship and custody of children. The framework of COCA comprehensively sets out how care of children matters are to be addressed. This is important because, as will be seen, that includes how courts are to approach matters procedurally.

[31]	The application to be appointed guardian for a special purpose was made under s 27 of COCA. It relevantly reads:

27	Court-appointed guardians

14	It was inserted by s 6 of the Family Court (Supporting Children in Court) Legislation Act 2021.

(1)	The court may appoint a person as a guardian of a child, either in addition to any other guardian or as sole guardian, either—

(a)	on an application for the purpose by any person; or

(b)	on its own initiative, on making an order removing a guardian under section 29.

(2)	The court may appoint the person as a guardian of the child—

(a)	either for a specific purpose or generally; and

(b)	either for a specified period or not.

Issues

[32]	This appeal is to be decided by the following issues:

(a)	Did the Judge err by approaching the question before her under the FCR rather than under s 140 of COCA?

(b)	Did the Judge err by deciding that it was not necessary to seek the views of the children?

(c)	Was there any procedural error or breach of natural justice?

(d)	If there is any error, what is the appropriate remedy?

Issue One: Did the Judge err by approaching the question before her under r 193 of the FCR rather than under s 140 of COCA?

[33]	Rule 193 is a general rule applying to all Family Court proceedings. It relevantly provides that the court may order that all or part of an application or defence or other pleading be struck out if the pleading or part of it:

(a)	discloses no reasonable basis for the application or defence or other pleading; or

(b)	is likely to cause prejudice, embarrassment, or delay in the proceedings; or

(c)	is otherwise an abuse of the court’s process.

[34]	But, COCA has its own striking-out procedure in s 140. All parties accepted that the strike out application ought to have been determined under the specific rather than general provision given the scheme of COCA. The rationale was crisply articulated by Cooke J in Fransson v Fransson.15 Proceedings relating to care of children matters under COCA need to be addressed in the manner contemplated by that Act. I note that neither s 140 nor the decision in Fransson had been referred to the Family Court Judge.

[35]	Section 140 provides:

140	Power to dismiss proceedings

The court may dismiss proceedings before it under this Act if it is satisfied—

(a)	that the proceedings relate to a specified child, and that the continuation of the proceedings is, in the particular circumstances, clearly contrary to the welfare and best interests of the child; or

(b)	that the proceedings are frivolous or vexatious or an abuse of the procedure of the court.

[36]	The section contemplates proceedings being dismissed in one of two situations. The first is where the existence of the proceedings by themselves is clearly contrary to the welfare and best interests of the child. The second is when proceedings are frivolous, vexatious or an abuse of procedure. These are disjunctive grounds.

[37]	In Fransson, Cooke J referred to statements by Williams J in Dillon v Chief Executive, Ministry of Social Development:16
Given that both CYPFA and COCA prioritise the welfare and interests of the child or young person, the Family Court must be vigilant to avoid allowing its own processes to become damaging of that which it must protect, whether intentionally or inadvertently.

[38]	The primary difference between the power to strike or dismiss proceedings under s 140 and the power in r 193 of the FCR is that there is no general ability to dismiss based on lack of prospect of success or no reasonable basis. This does not

15	Fransson v Fransson [2022] NZHC 1749.
16	At [22] citing Dillon v Chief Executive, Ministry of Social Development [2017] NZHC 1487 at [32].

mean that the prospect of success is irrelevant. On the contrary, it may inform the question of whether the proceeding is clearly contrary to the welfare and best interests of the children. The second difference is the requirement that continuation be clearly contrary to the child’s interests.

[39]	The Judge’s essential conclusion was:

[26] Given the above, there is no reasonable basis for the application to be brought. To allow it to continue would also unnecessarily expose [the children] to further litigation which would be an abuse of process.

[40]	On my reading then, there were two essential reasons to dismiss the proceeding. The first is available as a standalone ground only under the FCR. To that extent, I agree that the Judge erred. But, she also relied on a finding that continuation of the litigation amounted to an abuse of process.  That is a ground available under   s 140 of COCA. To the extent that the first ground informed the second ground, this in my view is also an available approach to s 140 of COCA.

[41]	In short, although the Judge relied on the wrong provision, it does not follow that her conclusion was wrong.

Issue Two: Did the Judge err by deciding that it was not necessary to seek the views of the children?

[42]	In my view, the use of the r 193 procedure likely informed the question of re- interviewing the children because that approach had a procedural rather than substantive flavour to it.17

[43]	The question of obtaining the view of the children involves a nuanced, if not difficult, issue of judgment. It is clear from the authorities that it not necessary to seek the child’s view at every step in a proceeding. In Newton v Family Court at Auckland, the Court of Appeal summarised the principles as follows:18

17 Refer for instance to a Minute issued by the Family Court dated 9 December 2022 stating that “Lawyer for child is excused from obtaining the children’s views in relation to this matter, as they are not relevant to this initial legal procedural matter the Court needs to determine”.
18 Newton v Family Court at Auckland [2022] NZCA 207.

(a)	The 2021 amendment to COCA makes explicit that s 6 gives effect to Part 12 of the United Nations committee on the Rights of the Child.

(b)	In proceedings in relation to care for or contact with a child, the child must be given reasonable opportunities to express views on matters affecting that child.

(c)	Any views the child expresses must be taken into account.

(d)	It is not open to a court or other decision-maker to decide that a child should not be given a reasonable opportunity to express their views because that would not be consistent with their welfare and best interests.

(e)	In determining what opportunities ought reasonably to be provided, the welfare and best interests of the child will be a paramount consideration.

(f)	That does not translate into a blanket requirement that a child’s views must be sought on any procedural step in proceedings under COCA.

(g)	Where a decision will have a significant effect on the child, they must be given a reasonable opportunity to express a view on the matters to which the decision relates.

(h)	It is neither possible nor appropriate to draw a bright line between substantive decisions, in respect of which a child must have an opportunity to express their views, and procedural matters, where that is not required.

[44]	The Judge’s decision not to have these children re-interviewed is understandable. She was aware of the procedural history which is part of the all- important context. Experienced counsel for the children were also of the view that re-interviewing the children may cause them distress. Mr Ashmore cogently argued before me that the principles expressed in Newton do in this instance require that the

views of the children be taken into account. I accept that submission because the outcome of the strike-out application— particularly if not struck out—does materially impact the children by re-engaging them in Family Court proceedings.

[45]	I note too that since the Court of Appeal delivered its decision in Newton, s 5 of COCA has been amended by the addition of s 5(g). That amendment adds heft to the position that input on the strike-out application from the children should be obtained.

Procedural error?

[46]	Although not pressed by Ms Peeling at the hearing, I discern other criticisms in Ms Peeling’s appeal. Ms Peeling suggests that an oral hearing was preferable to avoid misuse of knowledge and information which is taonga and tapu. She considered that an actual hearing has more cultural “security” around it to avoid misuse of information. She also suggested that a cultural consultant was needed to help navigate cultural values, beliefs and protocols and that the Judge ought not have proceeded without first ruling on her challenges to the first respondent’s evidence.

[47]	These arguments do not, either individually or collectively, lead me to conclude that the outcome was incorrect. The strike-out application did not depend on an assessment as to whether or not Ms Peeling has valuable knowledge to bring to the family or whose cultural awareness is more important. I am not persuaded that any information Ms Peeling wished to advance in support of her position was not advanced in writing. I also reject the submission that there was a procedural error in failing to deal with Ms Peeling’s application to strike out parts of the first respondent’s affidavit in opposition to the application for guardianship. The challenged evidence did not form part of the Judge’s reasoning. Finally, appreciating that an oral tradition has greater place in some cultures, the concern about security of cultural knowledge misunderstands the court process. Had there been a hearing, affidavit evidence and written submissions were still required. The procedure did not permit oral evidence nor cross-examination on the affidavit evidence in the ordinary course.

What now? The respective cases

[48]	Ms Bell submits that, much like the approach on sentencing, it is the Judge’s conclusion on the outcome which matters rather than the process of reasoning and that Ms Peeling’s application was and remains meritless. She points to the vaguely asserted points of appeal and attempt to re-litigate the substantive application to the Family Court as reasons to strike out the appeal. More materially, Ms Bell submits that there is no utility to the appeal since the Judge’s assessment satisfied the tests or threshold of both s 140 of COCA and r 193 of the FCR. The end result she says is that the proceeding should be/would have been struck out albeit by a different power.19

[49]	Substantively, Ms Bell submits that Ms Peeling’s evidence and approach illustrates a lack of insight into what is in the best interests of the children and the damaging impact of further litigation on them. She points to the antagonism between the parties which is inflamed by this application and appeal. She also points to the respondents’ evidence which shows existing preservation of the children’s cultural identities and the position of the children themselves. Ultimately, Ms Bell’s essential submission is that only finality serves the children’s best interests.

[50]	Mr Ashmore submits that there are several factors which distinguish this case from the more typical COCA dispute and which inform the approach the Court ought to take to ensure the children’s best interests are assessed appropriately. First, this is not a case of existing rights being taken away by summary process but whether to allow a wider family member to secure new rights. As such, the usual high threshold for strike-out is not appropriate. Secondly, generalised comments about the impact of family litigation on children underplay the effect on these particular children given the history of proceedings. Mr Ashmore points to the evidence that the children are exhausted by the process. He invites the Court to allow the appeal in part and decide the substantive appeal in favour of the respondents under r 20 of the High Court Rules.

[51]	Ms Peeling acknowledges the importance of the children’s views but says that should include how they have come to their views. She submits that the children’s response is understandable given the “narrative” weaved by the first respondent which

19	Relying on Te Whakakitenga o Waikato Inc v Martin [2016] NZCA 548 at [44] and [54].

has led to the children holding those views. She considers that the process of seeking the views of the children is flawed because she was not contacted and there were no cultural considerations. She explains the timing of her application as dependent on the outcome of the parenting dispute which was only resolved in April 2022. It came as a result of all her efforts to have contact with the children blocked by the first respondent. Ms Peeling argues that not enough value was placed on what she has to offer and that, by dint of her professional experience, the feelings between her and the respondents would not affect how she relates to the children. She argues that there is a clear distinction between the cultural knowledge that the respondents can share and that which she has to share with the children.

Discussion

[52]	Accepting that a summary dismissal of a guardianship application generally needs to meet a high bar, there are several factors in the present case that distinguish it from the usual COCA dispute. This is not a case where a parent of a child, who may be almost inevitably a guardian with rights that flow from that relationship, may be restricted from rights it already holds. In those circumstances, the high bar is both necessary and meets the policy underpinning the process. In this case, Ms Peeling does not have any legal rights concerning the children at this time but is asking the Court to grant her rights.

[53]	This Court has exactly the same evidence before it as the Family Court Judge. By r 20.19(1)(a) of the High Court Rules 2016, this Court has the ability to make any decision it thinks should have been made. The assessment before me is child-focused and driven. Although I have identified two errors in the Family Court’s approach to the issues, I am easily satisfied that there is no substantive error in the child-centred approach she took.

[54]	I have reached the same conclusion as did the Judge under the s 140 of COCA. I set out my reasons.

[55]	First, the children’s views are now before this Court which addresses that point. I do not accept the challenge Ms Peeling advances in terms of how the children were approached for their views. Her desired process in my assessment would have

prolonged the process and led to the very harm that Ms Peeling recognised should be avoided. The children themselves oppose this court process and point out they have little or no relationship with Ms Peeling. I accept that, from Ms Peeling’s perspective, this is not her doing but it is a significant factor for children who particularly need stability at this time of their life.

[56]	Secondly, I am not privy to the various specialist reports prepared in terms of the parenting proceedings which are now at an end. Both respondents have spoken of significant trauma experienced by the process. The former lawyer for the children has also spoken of the high degree of conflict that previously existed and the children’s awareness of that conflict.

[57]	I accept that these children are inevitably exhausted by the process that they have been through over a lengthy period. It is clear on the material before the Court that they have just started to enjoy a period of stability. The prospect of their lives being disrupted again is the most important and compelling consideration in whether the application would serve their best interests. I have no doubt that the continuation of a new guardianship process would be harmful for these children.

[58]	Thirdly, while I do not doubt Ms Peeling’s sincerity and fervent hope to be in the children’s lives or that in her mind the application is designed to nurture and promote their interests, it is also apparent that she has no insight into the impact on the children at this stage of their lives.

[59]	Fourthly, the court process and forum is not the right place to debate who is better placed to ensure engagement of these children with Samoan culture and heritage. No gap in the children’s cultural experience has been identified given that both respondents say they are conscious of their heritage. The first respondent has acknowledged his Samoan heritage and the importance of encouraging cultural awareness. He has stated that his opposition to allowing unsupervised contact is nothing to do with culture and everything to do with the children needing secure attachments in their lives. The second respondent stated that the children need to be protected from another messy court battle and to feel safe and secure and not stuck in the middle of a never-ending emotional tug of war.

[60]	Based on the material before me, this is not a situation where the children are simply denied access to their cultural heritage. Disagreements over the extent of their engagement with their heritage therefore cannot outweigh the importance of building a sense of continuity and security in their current care arrangements.

[61]	Fifthly, I consider that the relationship between Ms Peeling and the respondents is problematic and would inevitably lead to conflict should the Court intervene and force contact with the children. That cannot be in the children’s best interests.

[62]	Overall, although the Judge approached the strike out application by relying incorrectly on the FCR instead of s 140 of COCA, her findings in fact reflected the analysis required under s 140 of COCA and her reasoning was cogent.

[63]	Lawyer for the children, Mr Ashmore, perhaps put it best when he submitted:

None of the above should be seen as suggesting the applicant will never play a role in the children’s lives moving forward or that she does not possess significant cultural knowledge that will certainly enrich these children and other members of the wider family.

The point is that (as with almost all families) this interaction will have to occur organically and through the usual channels of family communication – not by the imposition of court orders by the High Court.

Outcome

[64]	I allow the appeal in part to the extent that I conclude that the Family Court erred in relying on the FCR and in failing to obtain the views of the children.

[65]	I uphold the Family Court decision to strike out Ms Peeling’s appeal on the alternative grounds under s 140 of COCA.

[66]	I find it unnecessary to make any finding on the application to strike out the appeal in view of the conclusion I have reached.

[67]	The first respondent is entitled to costs of the appeal and has asked that I make such order without requiring further submissions because of the financial

consequences of having to take further steps. Although the first respondent seeks indemnity costs, I am not satisfied such grounds exist.

[68]	I make an order for 2B costs in favour of the first respondent against the appellant. This includes the additional appearances in the civil appeals list which came about through Ms Peeling’s failure to file precise points on appeal. It is also to include the filing of the application to strike out which, although not determined, was necessary due to the failure to file particularised points on appeal.

[69]	The second respondent did not appear at the hearing. I make no order for costs in her favour.

[70]	Neither the first nor second respondents are required to contribute to the costs of lawyer for the children.

[71]	Save for the steps set out in [68] costs on the application to strike out otherwise to lie where they fall.

............................................................
Walker J