GMO v Family Court at Auckland [2014] NZHC 2579 (21 October 2014)

Last Updated: 4 January 2019

NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO 11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE HTTP://WWW.JUSTICE.GOVT.NZ/COURTS/FAMILY- COURT/LEGISLATION/RESTRICTIONS-ON-PUBLICATIONS.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-1379 [2014] NZHC 2579

UNDER	the Judicature Amendment Act 1972
IN THE MATTER	of an application for Judicial Review of a decision of the Family Court at Auckland dated 23 May 2014
BETWEEN	GMO Applicant
AND	THE FAMILY COURT AT AUCKLAND First Respondent SPS Second Respondent THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT Third Respondent

Hearing:	7 August 2014
Appearances:	S Jefferson QC and PJK Spring for Applicant Second Respondent in person A Longdill and R Savage for Third Respondent E B Parsons for the children
Judgment:	21 October 2014

JUDGMENT OF ELLIS J

This judgment was delivered by me on Tuesday 21 October 2014 at 4.00 pm

pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar ...................................Date:........................

NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO 11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE HTTP://WWW.JUSTICE.GOVT.NZ/COURTS/FAMILY- COURT/LEGISLATION/RESTRICTIONS-ON-PUBLICATIONS.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-1143 [2014] NZHC 2579

UNDER the Care of Children Act 2004
IN THE MATTER of an application by GMO of Auckland
for an order that a Family Court proceeding be removed to the High court pursuant to s 30(4) of the Care of Children Act 2004
BETWEEN GMO
Applicant
AND SPS
Respondent

Hearing: 28 July 2014
Appearances: S Jefferson QC and PJK Spring for Applicant Respondent in person
A Longdill and R E Savage for the Ministry of Social Development
E B Parsons for the children
Judgment: 21 October 2014

JUDGMENT OF ELLIS J

Counsel/Solicitors:

S Jefferson QC, Barrister, Auckland

PJK Spring, Keegan Alexander, Auckland A Longdill, Meredith Connell, Auckland R Savage, Meredith Connell, Auckland

E B Parsons, Meredith Connell, Auckland

[1] Mr O and Ms S have three children together, E (12), A (11) and J (10). They separated in July 2012.

[2] There is ongoing guardianship (and other) litigation between Mr O and Ms S in the Family Court. Mr O seeks both judicial review of decisions that have been taken in that forum and to have those proceedings transferred to this Court. Although those two applications were made and heard separately, this judgment deals with both.

Background: the guardianship proceedings in the Family Court

[3] Following the separation of his parents, the extreme behaviour displayed by A at school led to the making of “care and protection” notifications to the Ministry of Social Development (MSD). As a result, a Family Group Conference was held on 18 March 2013 and a plan for contact agreed. That plan was not, however, adhered to. A’s behaviour eventually led to his being “asked to leave” Kings College and he was subsequently formally excluded from Churchill Park School. Mr O filed judicial review proceedings in relation to that decision.

[4] On 22 May 2013 Mr O applied in the Family Court for orders placing all three children under either his or the Court’s guardianship. In the latter event, Mr O sought to be appointed the Court’s agent.

[5] On 11 June 2013 Ms S applied for orders seeking to have A placed under the guardianship of the Court and for her to be named as the Court’s agent. As I understand it, A’s particular behavioural difficulties had led to that application and, indeed, the following month A received from Dr Moir a diagnosis of “conduct disorder, childhood onset, aggressive type, severe”.

[6] Following a hearing of the cross-applications in late August 2013, Judge McHardy issued a judgment in which he began by noting that the need to make appropriate interim arrangements for the parties’ three children arose:¹

¹ GMO v SPO [2013] NZFC 7119 at [2].

... because of the background of intense disharmony between the children’s parents. This disharmony is now significantly impacting on the children’s lives and the orders that the Court is required to make need to be prescriptive to deal with this dysfunction.

[7] Then, he noted:²

A hearing took place last week wherein the Court appointed psychologist was cross-examined on her reports to the Court. There was a strong message coming out of that process to the effect that strong decisive action needed to be taken particularly in respect of [A].

[8] The Judge made guardianship orders:

(a) placing A under the guardianship of the Court, pursuant to s 31(1)(a) of the Care of Children Act 2004 (COCA);

(b) appointing a senior social worker of MSD as agent of the Court;

(c) that A was to be enrolled at Westbridge Residential School (a school for children with learning and/or behavioural difficulties) for such time and upon such conditions as the school and/or its advisers (in consultation with MSD) deem necessary, but in the first instance for seven days a week;

(d) that A was subsequently to be enrolled at St Heliers Primary School (if required) or another school to be agreed;

(e) that Dr Moir and Mr Stebbing (a clinical psychologist) were to provide specialist care, treatment and counselling for A, in consultation with MSD and Westbridge;

(f) directing that MSD was to be responsible for co-ordinating contact and communication between all parties;

(g) directing that until A started at Westbridge, he was to stay with Mr O;

² At [3].

(h) adjourning the application relating to E and J.

[9] On 25 October 2013 MSD applied for orders placing E and J under the Court’s guardianship and appointing MSD as the Court’s agent.

[10] By November 2013 A had “transitioned” to five days a week at Westbridge. On weekends and school holidays he was in the care of Mr O.

[11] On 17 December there was a further hearing before Judge McHardy. On 18 December he made the following further orders:³

(a) dismissing an application to remove MSD as the Court’s agent in relation to A;

(b) placing E and J under the Court’s guardianship and appointing MSD as the Court’s agent;

(c) granting leave to MSD to:

(i) place the children as it saw fit;

(ii) determine the form, frequency and venue of contact;

(iii) seek such therapy and medical treatment as may be required by the children;

(d) making it clear that the s 31 guardianship orders in relation to all three children were for general purposes;

(e) directing a review in three months time;

(f) recording an undertaking given by Mr O to the Court that he would meet the private school fees for E and J (including arrears).

³ O v Chief Executive of the Ministry of Social Development [2013] NZFC 10437.

[12] At [72] and [73] of his judgment the Judge said:

It is important to note that in the plan I am endorsing MSD indicates that for optimum implementation of the plan they require the support of both parents. They indicate how each parent can operate. Given the example that we have already had in relation to [A], it is most important that both parents buy into what the plan is proposing. These children are entitled to know that irrespective of personal views, which have to be subjective views, each parent can, as they have obviously done with [A], bite the bullet and focus on co-operating with the Ministry to ensure that what is proposed has the best possible outcomes for the children. It is important, therefore, that both parents continue what has been started as a result of their involvement with [A], so that there can be better understanding of the needs of the children.

It is to be understood that the orders that are put in place today are interim. This is not a situation where the Court has to have this type of oversight ongoing. There needs to be a review of both [J]’s and [E]’s situation, and [A]’s situation. I am going to direct that that be reviewed before me in three months time.

(emphasis added)

[13] Following this hearing MSD began discussions with representatives from the Ministry of Education about the post-Westbridge placement of A. The social worker was advised that neither Churchill Park nor St Heliers were prepared to accept his enrolment. Two schools in Glen Innes (near where Ms S was living) were identified as being willing to assist and work with Westbridge. Mr O was not supportive of that option. He also declined to fund private schooling for A.

[14] Mr O contracted Mr John Morris, an experienced educationalist, to make recommendations about A’s schooling. His lawyer arranged a meeting involving Mr Morris, Westbridge and the two Ministries. But Ms S opposed the meeting, believing that Mr O was engaging in “private lobbying” to further his own interests. The meeting did not take place.

[15] Shortly afterwards, on 28 January 2014, Mr O made an application to be released from the undertaking concerning school fees. The basis for the application was said to be that at the time the undertaking was given, it had been directed that A was to be enrolled at St Heliers School (which is decile 10) but that MSD were now saying that because he was out of zone he would need to be enrolled at Glenbrae or Glen Taylor (which are decile one). Mr O said that, in these circumstances, paying for E and J to attend private school “would result in markedly disparate and unfair
treatment as between siblings” and that the change of circumstances thereby rendered continuation of the undertaking unjust.

[16] On 30 January Judge McHardy issued a brief minute observing (inter alia):

... that my direction of 27 August 2013 was not an order that [A] must be enrolled at St Heliers Primary School ...

[17] On 4 February 2014 there was a telephone conference with Judge McHardy at which he ordered that the release application be allocated a half day fixture. A date of 20 May 2014 was subsequently given.

[18] Notwithstanding that his application to be released from the undertaking had not been heard, Mr O paid neither the arrears nor the school fees for E and J going forward. Because E was unable (as a result) to attend her chosen (private) school in Auckland, MSD determined that she should remain in the care of her aunt in Christchurch and attend public school there.

[19] Later in February, Mr O filed applications seeking:

(a) the return of E to his care; and

(b) amending contact arrangements in relation to J.

[20] In March, Mr O filed an application seeking release of the reports that had been prepared by Dr Louise Smith about the children under s 133 of COCA to Dr Sarah Calvert in order that Dr Calvert could prepare an “independent expert opinion as to the adequacy of the implementation by MSD of the plan”. As examples of MSD’s inability to implement the Plan he referred (inter alia) to:

(i) The failure of MSD to locate and enrol [A] at a school suitable for his pending transition from Westbridge [sic];

(ii) The withdrawal of MSD from a scheduled meeting with an independent educational expert to discuss the educational future of [A];

(iii) The failure of MSD to continue with the re-establishment of [A]’s relationship with his mother;
(iv) the unilateral shifting of the care and control of [E] from her grandparents to her aunt and her husband without the sanction of the Court;

[21] The MSD social worker prepared a review report in March, as a result of which, on 2 April 2014, MSD filed an on notice application for directions concerning the proposed “reintegration” of A into the care of Ms S and that any care between A and his father be supervised. On the same day, MSD also made a without notice application for orders that, in the meantime:

(a) A be placed at Westbridge for up to seven days a week;

(b) during the school holidays he be placed with Ms S or some other suitable person;

(c) future contact between A and Mr O be supervised.⁴

[22] The social worker’s report contained outlined her account of Mr O’s recent dealings with MSD and with the children and of things that had been said by the children to her. Aspects of this report were, and are, disputed by Mr O.

[23] In the memorandum accompanying the without notice application the lawyer for the Chief Executive said:

It is acknowledged that such a significant change of direction may appropriately be the subject of a hearing on notice.

There is a concern, however, that between receiving notice of such application and the hearing of such application Mr [O] may discuss this with [A], and that his reaction may cause undue hardship to [A] by invoking immediate insecurity and distress, and by making it more difficult for him to co-operate with the recommended process for reintegration with his mother.

In support of this proposition I refer to the concerns expressed in the Social Work report as to [A’s] apparent understanding that he is not to talk to the caseworker and discussion of issues relating to education as evidence of apparent involvement of [A] in these decision by his father, either intentionally or otherwise.

4. The reason given by the social worker for the supervision requirement in relation to contact between either parent and E or J was (at least in part) “to allow an assessment of the extent to which interactions with parents were contributing to the behaviour of the children”.

[24] On the basis of the material that had been provided to her, counsel for the children had indicated her support of the application.

[25] The interim, without notice application was granted by Judge McHardy on 9 April 2014. In his Minute he said:

[16] The Court considers it is necessary to put in place on a without notice basis the directions that the Chief Executive now seeks. The report, admittedly untested, does raise significant issues in relation to Father’s ability to co-operate with the Court-appointed agent to positively progress matters in a manner that addresses these children’s real welfare needs. There is concern that Father exhibits behaviour of wanting to not engage in any attempt for the family system to change and him to lose control. There is concern that he is continuing to disrupt any positive influences to maintain the functional closed family system that the children are caught in since the separation of their parents.

[17] It is the social worker’s opinion that Father exhibits behaviour consistent with perpetrators of domestic violence that use strategies to “win at all costs”. For instance he has withheld a promise for financial support for schooling and blocked access to money. He is evidencing behaviours of disregarding schedules set up by the Ministry and not engaging with the social worker to keep progressing the educational schooling decisions for [A]. He has not engaged with the Triple P parenting programme.

[18] It was abundantly evident when the guardianship order was made in August 2013 that [A] was a child who required significant assistance and that could only occur if both parents brought into the plan and co-operated fully. My previous decisions deal with this issue.

[19] The social worker’s concern is obviously that this has not occurred and unless it is positively addressed by the Court in the ways sought then [A] will suffer undue hardship by invoking immediate insecurity and distress thus making it more difficult for him to co-operate with the recommended process for re-integration with his mother.

[20] I am persuaded by the evidence that has been provided before me that the directions sought on a without notice basis are necessary and appropriate and must be put in place immediately. Accordingly I make the following directions:

(a) pending determination of the on notice application for directions [A] may continue to be placed at Westbridge for up to seven days per week;

(b) the Chief Executive may place [A] with his mother or other suitable placement during the school holidays in the event that a hearing cannot be arranged prior to commencement of the holidays commencing on 17 April;

(c) pending determination the Chief Executive may require that contact between [A] and his father be supervised.
[26] Judge McHardy accepted that MSD’s proposals involved “a significant change of direction” and said that they should be the subject of a hearing on notice. In that respect he said:

There is urgency needed in addressing the presenting issues. The Ministry have put forward in their report their reasons for seeking a change in direction in relation to [A]’s care. They also do not see issues relating to [E] in the same way that father does. Priority needs to be given to addressing these differences.

A hearing has been set for Tuesday 20 May 2014 at 10 am in respect of the application before the Court from Father to be released from the undertaking he gave in relation to payment of school fees. The issues I have mentioned above however take priority to that particular application.

[27] Service on the parties of the on notice application, and the social worker’s report was directed.

[28] Mr O filed a notice of opposition and an affidavit refuting much of what was said in the social worker’s report.

[29] Pursuant to the without notice orders made on 9 April, A spent the school holidays in the care of his mother. Ms S experienced several incidents with A in respect of which she had to enlist the assistance of the social worker or her support person. The social worker noted, however, that it had been expected that some issues would arise and that A’s behaviour during the holidays had been “largely compliant”.

[30] On 16 April 2014 the parties agreed that the 20 May fixture should be used to determine the MSD’s on notice application. Timetable orders were agreed and made, pursuant to which Mr O then filed a notice of opposition to that application and three affidavits in support, including one from the educational expert, Mr Morris.

[31] On 8 May Mr O served notice on MSD that the social worker be made available to give evidence at the 20 May hearing and MSD agreed to do so.
[32] On 14 May Mr O applied for an order seeking transfer of the proceedings to this Court on the grounds (inter alia) that the Family Court lacked the capacity to case manage and hear interlocutory applications in a timely manner.

[33] The following day Mr O applied for an adjournment of the 20 May hearing. In declining that application Judge McHardy said:

I note that this [is] because an originating application for a[n] order removing these proceeding[s] to the High Court has been filed and that that application is for mention on 22 May 2014 – that application is premised on a claim that the Family Court lacks the capacity to case manage and hear interlocutory applications brought in the Family Court.

The hearing set for 20 May is to deal with certain aspects of this dispute. There is a question mark over the expectations of the parents of the Court to deal with each and every aspect of this dispute – these may be too high particularly when decisions already made do not meet their expectations.

...

Decisions need to be made urgently regarding aspects of the children’s care and that is the focus of the hearing. This is irrespective of the outcome of the application for Removal to the High Court.

It is not accepted that there has been any increased workload in the Family Court consequent upon the new Family Court regime on 1 April that would diminish the capacity of the Family Court to case manage and hear applications brought.

The hearing for 20 May is to proceed as being necessary to advance the best interests of the children particularly [A].

[34] In the meantime, on 29 April, Dr Moir had provided a psychiatric report to both counsel for the children and the parties in which he made clear his opposition to the MSD plan. Counsel for the children declined to put this affidavit before the Court because she had concerns about what she perceived as Dr Moir’s blurring of boundaries between providing therapy for the children on the one hand and proffering expert opinion on the other. Mr O then took matters into his own hands by obtaining and filing an affidavit from Dr Moir, annexing his report. This affidavit report was filed outside the time for Mr O to file his affidavits under the agreed timetable.
[35] Following the 20 May hearing Judge McHardy granted MSD’s application.⁵ In the course of his judgment he explained his decision to proceed on a “submissions only” basis. He said:

[2] Mr Spring for Father gave notice prior to the hearing that he wished to cross-examine the social worker and advised the Court that he had available for cross-examination Dr Moir. He also indicated when the matter was called that he had an expectation that the parties would be cross- examined and that there would be someone called from Westbridge School to update the Court in relation to [A]’s present situation.

[3] Ms Parsons in her written submissions under the heading “Nature and scope of enquiry on 20 May 2014” highlighted the need to understand the legal classification of MSD’s notification to the court and requests for confirmation from the Court itself. She pointed out that it was not an application that can in fact be defended or argued as such. This is because the paradigm that the children’s legal situation rests within is that of them all being under the Guardianship of the Court with MSD as agent. Because the change in [A]’s care has been regarded by MSD as a major change they have appropriately sought the expressed approval of the children’s guardian (the Court) to do so beyond the hearing.

[4] Neither parent is required to consent to the change in plan which sees [A] not having contact with Father other than supervised (nor indeed any plan or change of plan within the ambit of the guardianship of the Court). This leaves a number of matters to deal with at a later date but the issue relating to [A] had been sought by Father to be priorities. The legal framework for the hearing from the parents, if at all (and indeed anyone else the Court decides they may wish to hear from, if any) is that it is evidence the Court may consider in determining how they direct the agent (MSD) to act. It is not, in Ms Parsons’ view, an application requiring determination.

[5] I agree that this correctly describes the nature and scope of the enquiry to be undertaken. The substantive application that needs to be directed to hearing is the applicant’s application to, in effect, discharge the s 31 Guardianship order and have it renewed with him as agent (thus achieving the “care and control” he seeks in relation to the children).

...

[8] ... despite the voluminous documentation filed the issues remain simple and easily identifiable. The children are under the guardianship of the Court pursuant to s 31 Care of Children Act. MSD has been appointed agent of the Court and the s 31 order in relation to all three children is for general purposes. There is no legislated requirement to review any such orders at all (although advisable) as there are with orders made under the Children, Young Persons and Their Families Act 1989 (e.g. s 101, 78 orders). As such there is no ability for the parents and guardians of the children to have a say or request a hearing in relation to any plans filed by MSD as of right. Any seeking of clarification from the Court, or approval of intended action by the agent of the Court could in theory be done on the papers in

⁵ GMO v S [2014] NZFC 3934.

chambers. The Court may call for more information and may seek to hear evidence from people it elects to, but there is no requirement to do so.

[9] After hearing from counsel I ruled that this was not a hearing which required any cross-examination of any witnesses. It was to proceed on a submissions-only basis.

[36] As far as the substantive issues were concerned, Judge McHardy summarised the concerns raised by MSD about Mr O’s compliance with the plan as follows:⁶

• (a) Father, despite having a copy of the contact and access plan, has disregarded it and set up other activities for [A] which clash with contact access times;

(b) Father had until Friday, 9 May 2014 refused supervised contact and hence no planned contact had occurred between [J] and [E] since 21 January 2014;

(c) Father had not engaged with the Triple P Parenting programme as at April 2014 (other than an introductory meeting);

(d) Father had failed to pay for Kings School fees for [J] and St Peters School for [E], as undertaken to the Court in December 2013;

(e) it is clear that Father has also had unsupervised contact with [E] unknown to MSD.

[37] The Judge recorded Mr O’s position in relation to those matters at [28] of his decision:

(i) [A] was not at risk in remaining in Father’s care and there was no justification for change in the care arrangements at this time;

(ii) Even if change is warranted (which is denied), then migration to Mother is unsafe and not in the best interests of the child;

(iii) Migration to Mother over Easter failed and [A] regressed as a result;

(iv) Insufficient evidence to enable Court to order “u-turn” in care arrangements for [A];

(v) MSD proposal is not child-focused but rather preoccupied with its conflict with Father.

[38] Then, he said:

[29] Mr Spring spoke to his written submissions which predicated that these particular matters required a determination of these issues. It is not surprising that this was what Father was asking the Court to do and these

⁶ At [25].

submissions only serve to confirm a concern that the Court has that Father does not have the ability to work with MSD in relation to the plan that was approved. He appears to be second guessing most of the steps taken and it is not therefore surprising that he has taken umbrage at the change of direction.

[30] Although it is accepted that he did co-operate with the Westbridge School in relation to [A]’s attendance there this is but one part of the big picture in the endeavour to deal with the three children’s issues as they present. That overall plan was greatly hindered by Father changing his position on paying certain school fees, claiming that his undertaking was given on the basis that [A] would be transferred ultimately from the Westbridge School back to St Heliers Primary School. This despite the fact that St Heliers Primary School is not an option as they have refused to take

[A] into their school. The Ministry had no option but to consider all other alternatives for [A]. By withdrawing the promised financial support for [E] and [J] Father has added to the complexity of the problem that has to be resolved for all three children.

[31] Father has chosen not to engage in the full plan that has been endorsed by the Court i.e. engagement with the Triple P parenting programme and engagement with [A] by way of supervised contact.

[32] In doing so Father has sent a clear message to the Court’s agent that he will pick and choose what part of the plan he engages in. It is for this reason that the Ministry have considered that there is a ‘road block’ in respect of the option of transferring [A] back to Father’s care.

[33] Father chooses to do things the way he considers appropriate. He seems to hold the view that he is right and that anyone who has a different opinion is wrong. This is one of the main reasons why there needs to be a full hearing of his application for discharge of the s 31 order. It would seem that until that application is disposed of Father is going to continue to seek options to deal with [A]’s problems which bring conflict for him dealing with the Court’s agent.

[34] It is against that background that MSD sought to notify the Court of the change of direction and the reason for this. The history of this matter is such that MSD considered it needed to bring out in the open the fact that because of developments in relation to [A]’s care, there needed to be a change of direction.

[35] Father chooses to blame everyone but himself for that decision having to be made. His demonstrated lack of faith in MSD is not shared by the Court. His actions are having the effect of possibly undermining the plan that was put in place and continues to be monitored in addressing [A]’s changing needs. There is a hint of arrogance about the way Father chooses to deal with these matters.

[39] Judge McHardy then explained the approach he had taken to the further evidence filed by Mr O. He said:

[36] Father sought leave to provide an affidavit to the Court from Dr Moir. Rule 416Q provides restriction on further evidence being filed. The

applicant required leave of the Court to the filing of this affidavit. That leave was opposed by both counsel for MSD and lawyer for child. Both counsel raised substantive concerns around this proposed affidavit. It was pointed out that Dr Moir has treated and provided treatment for [A]. He was not requested by the Court to assess [A]. There is a fundamental difference between therapy and assessment. Dr Moir’s role provided him with an obligation to report back to the Ministry, the agent of the Court. It is pointed out that attached to his affidavit is a letter that has already been ruled inadmissible. There are real concerns that this affidavit has been provided against a situation where Dr Moir has only spent 15 minutes with [A] this year.

[37] I made a ruling during the hearing that leave was not granted for the affidavit to be filed. For similar reasons the affidavit filed by John Morris is also not provided with leave at this stage. Appropriate leave applications need to be made if affidavit evidence is sought to be filed in this way.

[40] The Judge concluded:

[38] The short point is that I accept Ms Parsons’ analysis of the matter that is before the Court. The Court needed to review the position as far as MSD were concerned in relation to a change of direction of the plan. I am satisfied on the evidence that I have heard that it is appropriate for this change of direction to occur.

[39] What is necessary is for there to be urgency to be given to bringing on the substantive application so that any ‘road blocks’ in relation to all three children can be removed and their care arrangements be given some certainty for the future. To this end I am going to direct that there be an update of Dr Louise Smith’s s 133 report. Ms Parsons is to provide a proposed brief for Dr Smith’s update within five days. It is essential that be got on with. There is going to be a delay in having that report provided. When that report is provided there needs to be urgently scheduled a directions conference so that steps can be taken to have this matter provided with hearing time.

[40] Father has a number of applications before the Court. His counsel is to indicate within 14 days whether all applications are sought to be progressed so that directions can be made to set these down for hearing.

Subsequent events

[41] Before turning to consider the merits of the various review grounds I record that, inevitably, matters have moved on somewhat from the decisions made by the Family Court in May. In particular:

(a) A continued to improve at Westbridge, and (at the time of the hearing before me) it was proposed that he should transition back to a normal school;
(b) A has remained in Ms S’s care when not at school;

(c) In late May E started boarding at Southwell School where she has been doing well (where her fees are being paid by her maternal grandparents);

(d) J remained in the care of family friends and he is considered to be doing well at school (again, it seems, his fees are being met by maternal grandparents);

(e) Mr O has been more co-operative with the supervised contact aspects of the plan, although there remain some concerns about that;

(f) An updating s 133 report from Dr Smith has been ordered by the Court but it was expected that there would be some delay before it could be completed.

[42] Since the hearings before me, the Court has also been advised that all outstanding applications have been scheduled for hearing in the Family Court in December this year.

The application for review

[43] Mr O’s application for review alleges that, in granting MSD’s without notice, and on notice, applications, the Family Court:

(a) acted contrary to the principles of natural justice by:

(i) wrongly excluding relevant evidence, namely the affidavits of Dr Moir and Mr Morris;

(ii) refusing to permit the cross-examination of witnesses;

(iii) confining the hearing to submissions only;
(iv) making findings adverse to Mr O without hearing from him in person and without cross-examination;

(b) failed to act in accordance with Mr O’s legitimate expectation that the Family Court would (in relation to the on notice application) afford him a full hearing on the merits, including the right to cross-examine;

(c) failed to take into account the mandatory considerations contained in ss 4 and 5 of COCA and failed to consider all the evidence that had a bearing on those considerations;

(d) failed to form its own view on the merits, and instead merely accepted and adopted the views of MSD;

(e) in relation to the 9 April decision, failed reasonably to satisfy itself that grounds for making without notice orders contained in r 220(2) of the Family Courts Rules 2002 existed.

[44] Before turning to consider these grounds in more detail, it is necessary to say a little more about the statutory context.

The statutory context

[45] As I have said, the impugned decisions were made in the context of ongoing guardianship proceedings under COCA. COCA is therefore the statutory umbrella under which the present application falls to be considered. Aspects of the Family Court Rules 2002 (the FCR) are also relevant.

[46] The starting point is s 3(1) of COCA, which states that the purpose of the Act is to:

(a) promote children's welfare and best interests, and facilitate their development, by helping to ensure that appropriate arrangements are in place for their guardianship and care; and

(b) recognise certain rights of children.
[47] Sections 4 and 5 are key provisions and so I set them out in full. Section 4 contains the so-called paramountcy principle and provides:

(1) The welfare and best interests of a child in his or her particular circumstances must be the first and paramount consideration—

(a) in the administration and application of this Act, for example, in proceedings under this Act; and

(b) in any other proceedings involving the guardianship of, or the role of providing day-to-day care for, or contact with, a child.

(2) Any person considering the welfare and best interests of a child in his or her particular circumstances -

(a) must take into account -

(i) 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

(ii) the principles in section 5; and

(b) may take into account the conduct of the person who is seeking to have a role in the upbringing of the child to the extent that that conduct is relevant to the child's welfare and best interests.

[48] And s 5 stipulates that the principles governing 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 section 3(2) to (5) of the Domestic Violence Act 1995) from all persons, including members of the child's family, family group, whanau, hapu, 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, whanau, hapu, 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.

[49] Part 2 of COCA deals specifically with guardianship matters. Guardianship is defined in s 15 as having, in relation to a child:

(a) all duties, powers, rights, and responsibilities that a parent of the child has in relation to the upbringing of the child:

(b) every duty, power, right, and responsibility that is vested in the guardian of a child by any enactment:

(c) every duty, power, right, and responsibility that, immediately before the commencement, on 1 January 1970, of the Guardianship Act 1968, was vested in a sole guardian of a child by an enactment or rule of law.

[50] An inclusive list of the duties, powers, rights, and responsibilities of a guardian of a child is contained in s 16(1), as follows:

(a) having the role of providing day-to-day care for the child (however, under section 26(5), no testamentary guardian of a child has that role just because of an appointment under section 26); and

(b) contributing to the child's intellectual, emotional, physical, social, cultural, and other personal development; and

(c) determining for or with the child, or helping the child to determine, questions about important matters affecting the child.

[51] Subsection (2) inclusively defines “important matters affecting the child” as:

(a) the child's name (and any changes to it); and

(b) changes to the child's place of residence (including, without limitation, changes of that kind arising from travel by the child) that may affect the child's relationship with his or her parents and guardians; and

(c) medical treatment for the child (if that medical treatment is not routine in nature); and

(d) where, and how, the child is to be educated; and

(e) the child's culture, language, and religious denomination and practice.

[52] The possibility of a child coming under the guardianship of the Court is contemplated by s 31, which relevantly provides:

• (1) An eligible person may make an application to a court with jurisdiction under this section for -

(a) an order placing under the guardianship of the court a child who is not married, in a civil union, or in a de facto relationship:

(b) an order appointing a named person to be the agent of the court either generally or for any particular purpose.

[53] Section 34 states that, subject to two exceptions that are not relevant here, a Court to which an application is made under s 31 has:

... the same rights and powers in respect of the person and property of the child as the High Court had in relation to wards of court immediately before the commencement, on 1 January 1970, of the Guardianship Act 1968 ...

[54] Section 35 confers additional powers on the Court in relation to s 31 proceedings and relevantly provides:

...

(2) The court may, before or by or after the principal order, make any interim or final order it thinks fit about the role of providing day-to- day care for, or about contact with, or about the upbringing of, a child who is the subject of the proceedings.

...

(4) The court may, if in all the circumstances it thinks it appropriate to do so, make an order vesting the sole guardianship of the child in 1 of the parents, or make any other order with respect to the guardianship of the child that it thinks fit. However, if the court makes no order with respect to the guardianship of the child, every person who was a guardian of the child continues to be a guardian of the child.

...

[55] Accordingly, where an order is made pursuant to s 31 placing a child under the guardianship of the Court, the Court under s 34(2) has overriding powers over the child’s person. And except to the extent that the rights of the child’s parents and guardians are preserved by a direction from the Court under s 35(4), those rights are suspended while the guardianship order is in force.

[56] It is against this statutory background that the application for review falls to be considered.

Breach of natural justice?

[57] It is trite that the dictates of natural justice will vary according to the circumstances, which include not only the quality of the decision at issue but also the nature and extent of the interests of affected parties. In the present case it is therefore important to be clear at the outset about the nature of the exercise in which the Chief Executive and the Court were engaged at the time the decisions under review were made.

[58] As Judge McHardy himself acknowledged, the starting point in this case was that the Family Court is now the guardian of these three children and the Court has appointed the Chief Executive as its agent, for general purposes. The Court (through its agent) is therefore responsible for, and required to make decisions about, all the matters referred to in COCA s 16, including (inter alia) the children’s day-to-day care, their intellectual, emotional, physical, social, cultural, and other personal development, their place of residence and their education.

[59] Conversely, while Mr O and Ms S necessarily continue to have a deep and abiding interest and a legitimate concern for the welfare of E, A and J, they are not presently their guardians because the Family Court has determined that it is contrary to the children’s interests for them to be so. And it is my clear view that, having read the large quantity of material before the Court,⁷ one of the principal reasons for that determination is the difficulties that have historically been created by the no doubt well-intentioned, but nonetheless adversarial, approach that Mr O (in particular) seems to have taken to matters impinging upon the children’s welfare.

[60] It is these important matters of context that militate against the conclusion that Mr O had natural justice rights in relation to the impugned decisions that are akin to those afforded participants in adjudicative court proceedings. In short, the process by which care and educational arrangements are made by the Court, as the children’s guardian, is not, and should not be oppositional. In the

7. Mr O’s various affidavits filed in the review and transfer proceedings have many hundreds of pages of exhibits.

guardianship/COCA contexts, in particular, many of the Court’s functions are protective and aspects of its processes are necessarily inquisitorial.⁸

[61] So, as Judge McHardy noted, the Court may make inquiries and seek information. Similarly, it may well wish, and be wise, to listen to the views of the children’s parents, and to enlist their co-operation in relation to implementing the plan and other practical matters. But if and when the Court does embark down such a collaborative path, it seems to me that it may give the parents’ views whatever weight it sees fit, in accordance with the COCA principles.

[62] A conclusion that the process in which the Family Court is engaged, when making decisions about A’s care, is collaborative rather than combative could not be underscored more clearly than it is by s 5(c) of COCA. To reiterate, the principle encapsulated in that paragraph is that:

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:

[63] I therefore agree with the view expressed by Ms Parsons (and adopted by Judge McHardy) that notwithstanding the form taken by the documents filed by the Chief Executive here, the matters raised in them were not matters requiring adjudication, in the sense of some binary dispute resolution exercise. And the fact that Mr O (and Ms S) was given a hearing by the Judge does not diminish the force of that conclusion. Rule 416ZG (contained in the new Part 5 of the FCR and which deals with COCA proceedings) expressly permits a Judge to direct a submissions only hearing. And for the reasons I have just given I consider that the calling of witnesses, cross-examination and other adversarial trappings would have been wholly inappropriate in this case.

[64] That said, I also consider that it was entirely proper for the Chief Executive to notify (and seek the approval of) the Court of its proposed change of direction in relation to the plan for A in the present circumstances. It was also entirely

8. See for example the comments of Gendall J in T v Attorney-General [1999] NZFLR 886, (1999) 18 FRNZ 481 (HC).

appropriate that the children’s parents were similarly notified and given an opportunity to express their views. The fact that the Chief Executive chose to refer to the documents he filed as “applications” appears to me to be neither here nor there. The legal reality was that the Chief Executive (as agent) was confirming with the Court (his principal) that his proposed course of action conformed with the Court’s (the principal’s) wishes (or, perhaps, fell within the scope of the agency).

[65] As far as Mr O’s objection to what he regards as adverse personal findings against him is concerned, I accept that the Judge’s view of Mr O no doubt did influence his decision, and that that decision was, from Mr O’s perspective, “adverse”. But the paramount issue for the Judge was not one of fairness to Mr O but what was in the best interests of A. Moreover, the Judge did in fact afford Mr O a hearing, in the sense that he was able to file evidence refuting the social worker’s report and his counsel was permitted to make extensive submissions on the issues.⁹

[66] The reality was that Mr O came to the Court on 20 May very much on the back foot because, by his own admission, he was, and continues to be, in breach of the personal undertaking he gave to the Court in December 2013. However justified he may have considered his change of position to be, and notwithstanding his application to be discharged from the undertaking, the Court was entitled to take a dim view of his deliberate refusal to honour it in the meantime. Like Judge McHardy, I am in little doubt that Mr O’s volte-face added real and significant practical complexity to the implementation of the Court-approved plan.

[67] Nor is it disputed that Mr O had initially been resistant to his contact with his children being supervised in accordance with the plan. In light of the way in which it seems the conflict between Mr O and Ms S had historically been played out through their children, the supervision requirement appears wholly reasonable. And the difficulty is that in refusing to comply, Mr O sent a further signal that he was prepared to second-guess decisions made by MSD on behalf, and with the authority of, his children’s guardian. His disdain for MSD had, in any event, been writ large in

9. I note that by virtue of the confidential nature of proceedings in the Family Court the comments are not, and never will be made, public; there is no issue of wider reputational damage from any “findings” that are critical of Mr O.

the grounds advanced in support of his application dated 7 March, which I have noted at [20] above.

[68] Against this background, it is not difficult to see why the Court was not prepared to give Mr O the benefit of the doubt in relation to other, disputed, factual matters. It is not unreasonable to interpret his readiness to contest and his attempts to control merely as further manifestations of a similar attitude. Section 4(2)(b) of COCA expressly permitted the Court to take into account of Mr O’s conduct to the extent it was relevant to the children’s welfare and best interests. That link was expressly made by Judge McHardy in the present case on a number of occasions.

[69] In my view, the matters I have just canvassed are more than adequate to justify the conclusions reached by the Judge and expressed at [30] to [35] of the 21 May decision.

[70] In my view there has been no breach of natural justice in this case. Indeed, there is a danger that attempting to view these intensely practical guardianship issues through a natural justice prism at all, diverts focus from what must always be the paramount concern, namely the welfare and best interests of Mr O’s three children.

Breach of legitimate expectation

[71] The pleaded breach of legitimate expectation relates to precisely the same matters that I have canvassed in relation to the natural justice ground of review. Moreover, the Judge heard submissions from Mr O’s counsel on the issues of whether cross-examination should be permitted. I consider that this pleading adds nothing to the natural justice ground and I do not propose to consider it further.

Failure to take into account ss 4 and 5 of COCA and all relevant evidence?

[72] An alleged failure to take into account relevant COCA principles is a commonly pleaded ground of review where Family Court decisions regarding children are at issue. In my (admittedly limited) experience such pleading is often just a thinly disguised invitation to the Court to engage with the merits of the decision under review. Moreover in proceedings where the Family Court itself is the
guardian of the child or children in question, the suggestion that the Court has not turned its mind to the relevant COCA matters seems inherently improbable.

[73] But in the present case, Mr O contended, in particular, that the Court was required by the combined terms of ss 4(2)(a)(ii) and 5(d) of COCA, to take into account the principle that a child “should have continuity in his or her care, development, and upbringing”. He said that the Court’s decision to change the care arrangements for A (by transitioning him into the care of Ms S) breached its obligations in this regard.

[74] The reality is, however, that the s 5(d) principle is but one matter that must be weighed in the balance when considering a child’s welfare and best interests. Only the principle contained in s 5(a) (safety and protection from violence) is, in any sense, immutable.¹⁰

[75] In A’s case, for example, Mr O’s submission about the continuity of care principle arguably conflicts with the s 5(e) principle that he should continue to have a relationship with both his parents. On my reading of the Court’s decision, it was the desirability of A restoring his relationship with his mother that was one of the key drivers of the change in care arrangements. Indeed it was MSD’s alleged failure to do this that formed one of the grounds for Mr O’s 7 March application. And there is, as well, the further irony that the relief sought by Mr O in these proceedings (a return to the status quo ante) would result in a further upheaval in A’s care arrangements.

[76] In the end, the fact that a differently nuanced s 5 analysis might be possible in the present circumstances is immaterial. The signal point is that the Chief Executive and the Court did, in my view, clearly turn their minds to the relevant principles. A challenge to the decision based on the contention that they did not cannot succeed.

[77] As for the alleged failure to take account of all the relevant evidence, the Judge gave numerous and cogent reasons for excluding the affidavit of Dr Moir (at
[36] of the 21 May judgment). While his reasons (at [37]) for excluding the

¹⁰ Brown v Argyll [2006] NZFLR 705 (HC) at [39].

evidence of Mr Morris are, perhaps, less cogent,¹¹ it must be assumed that the evidence (which was not formally excluded at the hearing and was the subject of submissions) was simply not helpful. In fact, the affidavit merely sets out the background to the aborted meeting in late January, a topic that was covered in Mr O’s own affidavit and in the social worker’s.

Failure to form own view on the merits?

[78] It is undeniable that the Court did, in large part, adopt MSD’s view of the matter. But that does not appear to me to be particularly surprising, given that:

(a) the Court has appointed MSD as its agent;

(b) MSD’s proposal was supported by counsel for the children; and

(c) the Court expressly (at [35] of the judgment) reiterated its confidence in MSD’s competence.

[79] Although it is correct that the Court did not permit Mr O to test by cross- examination certain of the factual bases for the Chief Executive’s views, his position on those matters had nonetheless been clearly put, both through his own evidence and through his counsel’s submissions. Moreover, as I have noted at [66] and [67] above, there appears to me to have been good reason for the Court to discount Mr O’s account of matters.

Failed reasonably to satisfy itself that the grounds for the making of without notice orders existed?

[80] To the extent that (contrary to the views I have expressed above) it is appropriate to view MSD’s “applications” as formal applications in terms of COCA, r 416H of the Family Court Rules (which specifically applies to COCA proceedings) relevantly provides that:¹²

An application without notice may be made only if -

¹¹ As I understand it, no leave was required to file this affidavit.

¹² Rule 220 (which is the rule of general application) is in materially identical terms.

...

(b) ...the delay caused by making the application on notice would or might entail serious injury or undue hardship or risk to the personal safety of the applicant or any child of the applicant's family, or both; or

...

[81] It is clear from the terms of Judge McHardy’s without notice decision that he squarely had in mind this threshold when making the 9 April decision. In fact at [19] of that decision he refers to the “undue hardship” test directly. His reasons for concluding that it had been met are clearly set out. In my view the evidence which was, at that point, before the Judge formed a more than sufficient basis for that opinion.

[82] Even if that were not the case, however, the 9 April “without notice” decision has been superseded (and any defects in it cured by) the on notice procedure. The earlier, ex parte, decision is therefore effectively moot; there is, in my view, no merit in this ground.

[83] It follows that I consider that none of the grounds of review are made out.

The application for transfer

[84] The application to transfer the Family Court proceedings to this Court is made under s 30(4) of COCA,¹³ which provides:

The High Court must order proceedings to be removed to the High Court if -

(a) an application is made under section 31 to a Family Court; and

(b) a party to the proceedings applies to the High Court to have the proceedings removed to the High Court; and

(c) the High Court is satisfied that the proceedings would be more appropriately dealt with in the High Court.

13. Mr O also prays in aid this Court’s parens patriae jurisdiction but in my view that is unnecessary here, where there is a specific statutory provision that deals with the matter: Re JSB [2009] NZHC 2054; [2010] 2 NZLR 236 (HC) and Chief Executive, Ministry of Social Development v S (2009) 28 FRNZ 236 (HC) at 238.

[85] It is not in dispute that the first two prerequisites are met in the present case. The only issue, therefore, relates to the third.

[86] The specific grounds on which it is said that the proceedings would be more appropriately dealt with in the High Court are that:

(a) the interests of the children will be better promoted in that Court;

(b) the proceedings are “manifestly complex”;

(c) delays in the Family Court have resulted in procedural unfairness to Mr O;

(d) the High Court is able to exercise inherent jurisdiction;

(e) there have been and will be further, related proceedings, in the High Court.

[87] There is no guidance in the section as to the matters that may be relevant to the exercise of the discretion. As I understand it, there have been no cases decided under s 30(4). I accept that may be possible to analogise with other similar provisions in other family law statutes. But beyond noting that the seemingly unfettered discretion conferred by the subsection must, of course, be exercised consistently with ss 4 and 5 of COCA, I do not intend to try and articulate any further principles of general application. Rather, I propose simply to deal with the grounds advanced on their merits.

[88] The submission that the interests of the children will be better promoted in the High Court was based largely on what Mr O perceives as delays in progressing matters in the Family Court. Mr Spring submitted that delays of that order are inconsistent with COCA s 4(2)(a)(i), namely that decisions affecting a child must be made and implemented within a time frame that is appropriate to the child’s sense of time. It is thus related to the third ground, namely that delays in the Family Court have resulted in procedural unfairness to Mr O.
[89] As far as s 4(2)(a)(i) is concerned, I accept that the guardianship arrangement in the present case was and is intended to be temporary and that it is important that the children resume a relatively normal life with their parents as soon as possible. Many of the comments made by Judge McHardy in fact reflect this concern. But “as soon as possible” is not some measurable benchmark, it is a concept that must take account of reality and all its exigencies. And here, those exigencies include the added complexity caused by Mr O’s breach of undertaking and the deviations from the original plan to which that led. And in any event, there were, and are a number of ducks that require to be lined up (such as participation by Mr O in the Triple P parenting programme) before normality resumes.

[90] To the extent that there has been any avoidable delay in the present case (which I am not minded to accept), I do not consider that it has been occasioned by the Family Court. Rather, any delay:

(a) has been caused or, at least, exacerbated by the actions of Mr O; or

(b) is beyond the control of any Court (such as the delays in obtaining an updated s 133 report); and

(c) has not, on the basis of the evidence before me, been detrimental to the welfare and best interests of the children.

[91] As far as Mr O’s contention that delays have resulted in procedural unfairness is concerned, it will come as no surprise that I consider it misses the critical point. That point is not whether Mr O has been treated unfairly (and my natural justice conclusions mean that I do not think he has) but, rather, whether any delay is detrimental to the welfare of the children. In my view it has not been.

[92] As for “manifest complexity” I acknowledge that any proceedings involving the welfare of three young children who have suffered different degrees of and differently manifesting emotional harm as a result of familial events beyond their control are potentially both subtle and difficult. I do not think the present case is any exception. But in my view those matters point in favour of the matter remaining in
the Family Court which is undoubtedly the repository of considerable expertise in such cases. And in light of my conclusions on the natural justice issue, this is not a case where the more routinely adversarial approach taken in High Court proceedings might favour transfer. Indeed, the opposite is again the case.

[93] Next, there is the question of the possibility of this Court’s ability to exercise its inherent (parens patriae) jurisdiction. I accept that it is theoretically possible that an issue might arise in a guardianship context which can be dealt with under that jurisdiction but not under the statutory jurisdiction of the Family Court. But counsel were unable to point me to any specific “real life” example that was likely (or even unlikely) to arise in the present case. Accordingly, this ground is theoretical at best and could not, in my view, justify a transfer.

[94] And lastly, there is the matter of other, related, proceedings in this Court. There is the judicial review matter with which I have dealt above. There was an appeal by Mr O which, as I understand it, has also been dealt with. I am unable to see how the existence of those (former) proceedings weighs in favour of transfer.

Summary and conclusions

[95] I have concluded that none of the pleaded grounds of judicial review are made out. There is much force in the submissions made by Ms Parsons for the children (which were adopted by the Family Court) that the “applications” made by MSD here which led to the impugned decisions were more in the nature of notifications which did not give rise to any requirement for a “hearing” at all.

[96] But regardless of how the applications are described, and notwithstanding Mr O’s undoubted interest in the proceedings involving his children in the Family Court, his natural justice rights are necessarily limited in circumstances where the Court is making decisions in its role as their guardian. Such decisions are not properly seen as being made in an adjudicative context. Indeed, the particular circumstances of the present case militate strongly against permitting an adversarial approach. The welfare and best interests of the children are necessarily the overriding concern and any natural justice rights that might ordinarily be possessed by civil litigants are to be regarded as subservient to those interests.
[97] Accordingly, when making decisions in its capacity as guardian of the children the Family Court cannot be said to have acted in breach of natural justice (or in breach of Mr O’s legitimate expectation) when it:

(a) excluded expert evidence it did not regard as helpful;

(b) refused to permit the cross-examination of witnesses;

(c) confined the hearing to submissions only.

[98] Similarly, in a context where the Family Court is making decisions about the day to day care of children of whom it is the guardian, it is inapt to speak in terms of the Court as making findings that are “adverse” to one or other parent. The Court’s role in those circumstances is essentially inquisitorial and it follows that the Court is not required to hear oral evidence from the parents or to permit cross-examination.

[99] There is no basis for the submission that the Family Court failed to take into account the considerations contained in ss 4 and 5 of COCA and failed to consider all the evidence that had a bearing on those matters. It’s reliance on MSD was appropriate given MSD’s status as the Court’s agent and in light of the conclusion that an adversarial approach to the matters at hand is neither required nor warranted.

[100] As far as the 9 April decision can be said to relate to an “application” of the sort that is covered by the procedures in the FCR (which I doubt) the Judge expressly turned his mind to the grounds upon which the Court is permitted to make without notice orders and found that they were made out.

[101] As far as the application to transfer is concerned there is no basis upon which to conclude that the guardianship proceedings could be more appropriately dealt with in the High Court. On the contrary, they appear to me to be precisely the kind of proceedings in which the Family Court’s processes, and its undoubted expertise, will be invaluable.

[102] The application for judicial review and the application for transfer are both dismissed.
[103] If any question of costs arises (which seems unlikely given that Ms S is self- represented) memoranda may be filed within 10 working days.

Housekeeping matters

[104] I record that the identities of E, A and J are suppressed by virtue of s 139 of COCA. So too are the names of their parents, their addresses and any other particulars that might lead to the identification of the children. References to the parents’ names in this judgment are pseudonymous.

[105] In accordance with r 3.12 of the High Court Rules there may be no search of the Court files without leave of a Judge.








Rebecca Ellis J