Dph v Lgg and Ors

JurisdictionNew Zealand
JudgeS J Coyle
Judgment Date09 February 2010
Docket NumberFAM-2008-012-001052
CourtFamily Court
Date09 February 2010



In The Matter Of the Care of Children Act 2004

First Respondent


Second Respondent


Third Respondent

A Laurenson for the Applicant via teleconference

First respondent appears in Person

L Garthwaite for the second respondent

No appearance for or by third respondent

D More as Lawyer for the Child


S J Coyle

Mr H and Ms T are unable to care for their son S M R H, who was born in November 2008. They cannot care for him because of care and protection concerns around their care of S and S's brother B who was born around two months ago and is currently in the custody of Child Youth and Family Services pursuant to a s 78 order under the Children, Young Persons and their Families Act.


B had been living with Ms T at Holly House in Christchurch but I am told today by Mr Laurenson and Ms Garthwaite that Ms T, together with Mr H, have now relocated with B to live in New Plymouth. They have done so with the blessing of Child Youth and Family Services and, Mr More advises me, as a consequence of agreements reached at a recent family group conference in relation to B.


Because of the care and protection concerns surrounding S, S has lived with his maternal grandmother, Ms G, virtually all of his short life. Ms G is unrepresented and she appears today with her mother (S's great-grandmother) Ms H in support. (I am told that Ms G obtained an interim parenting order on 19 December 2008. That order has now expired due to the operation of law with no application being made by any of the parties or S's counsel to extend that order.)

The Application

The applicant Ms H (Mr H's mother) has misgivings about the appropriateness of Ms G' care and has applied for leave to the Court to apply for a parenting order in respect of S pursuant to s 47 of the Care of Children Act. Ms G opposes leave being granted and today's hearing has been centred on resolution of the issue of whether or not to grant leave to Ms H to apply for a parenting order.


Ms T supports such an application, as does Mr More on behalf of S. Mr H, S's father, has taken no steps and is not present today.


Mr Laurenson, on behalf of Ms H, has filed very full and helpful submissions. They have been of assistance to me. They clearly set out the relevant sections in the Care of Children Act (ss 4, 5 and 47(1)(e)) and the relevant High Court authority, which I am bound to follow if it is applicable to the facts of this case.


Section 4 of the Care of Children Act is the starting point. My focus has to be on the best interests and welfare of S and additionally, pursuant to s 4(5)(b), I am required to consider the relevant s 5 principles. S is too young to express views in terms of s 6 of the Act. In terms of the relevant s 5 principles in the context of this case and the issues upon which I have to grapple, I see the relevant principles as being slightly more expansive than simply s 5(d) as submitted by Mr Laurenson.


The relevant principles to my mind are:

  • a) Section 5(a) — S's parents and guardians are to be responsible for S's upbringing

  • b) Section 5(b) — continuity of care

  • c) Section 5(c) — co-operation and consultation with parents and guardians

  • d) Section 5(d) — preservation and strengthening of S's relationships with his family, and

  • e) Section 5(e) — the safety of S.

Applicability of Barker v Cargill

In the context of a leave application the relevant High Court authority is Barker v Cargill [2007] 26 FRNZ 641. That decision was an appeal against a decision of His Honour Judge Geoghegan in the Rotorua Family Court in which His Honour found that there was a significant difference between the now repealed Guardianship Act 1968 and the approach that now needs to be undertaken under the Care of Children Act when considering an application for leave. That view of Judge Geoghegan was endorsed by Andrews J on appeal. The Barker decision, however, was centred on an application for contact by the grandparents whereas in this case the application is centred on Ms H seeking day to day care.


A request for leave is a mechanism to ensure that improper applications are not filed by any party (para (53), Barker). That approach is entirely consistent with s 4 of the Act which requires children's welfare and best interests to be paramount. That is, within the overarching paramountcy principle, a Court must be able to protect children from involvement or exposure to unmeritorious applications.


His Honour Judge Inglis QC in M v H [1996] FRNZ 256 at page 261 set out the principles to be applied in relation to applications for leave. Andrews J set out at para (27) of his judgment in Barker a summary of those principles which are as follows:

  • a) Leave should be declined if an application is vexatious, unjustified or vindictive ( Tito v Tito [1980] 2 NZLR 257).

  • b) If the application for custody is made against a parent then:

    • 1. The applicant must be shown to have an appropriate and sustainable interest in promoting the welfare of the child; and

    • 2. The applicant must be able to show, prima facie, either that if a custody order were made in his or her favour, the welfare of the child would be promoted in some material respect, or that if a custody order were not made, the welfare of the child would be prejudiced in some material respect.

  • c) If the application for custody is made against that person who is not a parent, step-parent or guardian then:

    • 1. The applicant must be shown to have an appropriate and sustainable interest in promoting the welfare of the child; and

    • 2. Less emphasis is placed on the need to demonstrate, prima facie, the impact of the custody order sought – it would be sufficient if it was shown that a change of custody was an arguable issue.


In Barker at first instance Judge Geoghegan classified the two approaches as being what he described as a higher test and lower test in relation to the leave issue. Judge Geoghegan adopted the lower test, holding it to be the applicable test on a leave application, given the legislative changes in the Care of Children Act.


On appeal Andrews J held that Judge Geoghegan was right in holding that the high test is not applicable in relation to the application before him; namely an application for a parenting order as to contact (para (59) and (61) of Andrews J's decision). Barker, however, leaves unresolved the question of what the test is when grandparents are seeking day to day care and not contact.

Is M v H still good law in relation to day to...

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