KT v L and R B and Anor HC WN

• Jurisdiction: New Zealand
• Judge: Gendall J
• Judgment Date: 24 August 2010
• Neutral Citation: [2010] NZHC 1476
• Docket Number: CIV-2010-485-000561
• Court: High Court
• Date: 24 August 2010

[2010] NZHC 1476

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2010-485-000561

CIV-2010-485-000559

Under the Care of Children Act 2004

BETWEEN

KT

Appellant

and

L and R B

First Respondents

and

JH

Second Respondent

In the Matter Of the Judicature Amendment Act 1972

BETWEEN

KT

Plaintiff

and

The Lower Hutt Family Court

Defendant

Counsel:

G M Letts, M Freeman and K E Muir for Appellant/Plaintiff

P A Le Page and V A Nathan for First Respondents

J F Sanders and C L Leader for Second Respondent

M Chisnall Counsel for Child

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 THE CASE MAY BE CITED AS “TEMPLE V BARR AND HOLBORN”

RESERVED JUDGMENT OF Gendall J

Preliminary

1 Appeals in the family law area often highlight problems over identification of parties, children and others and in the manner of which decisions are reported. Many cases are known by initials. Some Judges have devised means of describing appellants and others by fictioning names so as to ensure the case is not reported under which has been said to be another set of “meaningless initials”. 1 It is not a practice which I have adopted but on reflection, I consider it preferable in this case.

2 Accordingly, one version of this judgment recites in its intitulement the correct names of the parties, although in the body of it the assumed names are recorded. The other version of the judgment which may be published in any report (but still complying with ss 11B to D of the Family Courts Act 1980) the names of all parties, intitulement and body of the judgment are those adopted in the following glossary:

• the female child – “Ruth”;

• the appellant/plaintiff – the natural mother, “K Temple”;

• the custodial parents, the first respondents – “L and R Barr”;

• the second respondent/natural father – “J Holborn”.

3 Ruth has been in the care of the Barrs since her birth on 1 May 2008 and she is now aged two years four months. A final day-to-day parenting order was confirmed in the Family Court at Lower Hutt on 4 March 2010, and as a consequence an application for a parenting order by Ms Temple was dismissed.

4 Mr Holborn is the second respondent, who supported the application of Ms Temple and continues to do so. Judge I G Mill, sitting in the Family Court, heard oral evidence and submissions over four and a half days, and cross-examination of the primary parties and others, including a clinical psychologist. He had multiple affidavits together with a report from the psychologist engaged by the Court and a s 132 social worker's report.

5 The proceedings were two-fold, being an appeal by Ms Temple against the decision of the Family Court, and a separate application for judicial review of the Family Court at Lower Hutt contending that orders it made in the proceedings were unlawful (they being orders granting leave to the Barrs to apply for interim orders, the making of the interim orders in favour of the Barrs on 31 July 2008, and the making of the final parenting order on 11 December 2008). The grounds alleged are illegality, improper purpose, error of law and unreasonableness.

6 Simon France J expressed the view in his Minute of 5 July 2010 that the need for the judicial review proceeding was not apparent, stating that it largely overlapped the appeal. The judicial review sought to contest interim order decisions that have been overtaken by a final order. I confess that I initially was inclined to share that view and query why the appellant should now seek to involve traditional and technical arguments on a judicial review process. I have now reflected on that issue and it is something to which I will return when dealing separately with that application at [85] – [114].

7 The Family Court judgment sets out in detail all the evidence and background and I summarise the essential background as follows.

Background

8 Ms Temple and Ms Barr became friendly through a common interest in fitness activity. When Ms Temple became pregnant with this child, she agreed that after she gave birth the baby should be given to, and go into the care, of the Barrs with a view to an adoption being arranged. Within a few hours of the child's birth she was taken, pursuant to that arrangement, by Ms Barr and she and her husband assumed the care of the child which has continued to date. The biological father of the child may not have known of that arrangement at that time. He did not have a marriage or civil union with Ms Temple. Nor could it be said that he had a de facto relationship with her despite they being the parents of three male children. Ms Temple had a fourth female daughter. They lived apart and Ms Temple was in receipt of the domestic purposes benefit. But the couple had an ongoing relationship and consorted on frequent occasions.

9 For a number of reasons an application to adopt was not made nor did any adoption process proceed. Ms Temple had some second thoughts, and Mr Holborn, although apparently content for the child to remain with the Barrs, was not enthusiastic about, or did not support adoption. The child was being breastfed by Ms Barr and the natural parents did not insist or request the child's return. Two months after the child was born on 9 July 2008, the Barrs sought leave to apply for a parenting order, and a substantive order with proposed day-to-day care and contact being described as:

[Ruth] shall be in our day-to-day care with [Ms Temple] and [Mr Holborn] having contact with [Ruth] at times to be agreed between all the parties.

10 On 31 July 2008 Ms Temple and Mr Holborn consented to the interim parenting order and a guardianship order. A condition of the interim order was that it ceased after the expiration of one year and the Barrs were required to take “all reasonable steps to obtain a final order as soon as practicable”. The order was subject to monitoring and review and placed in the Family Court Judge's List for 16 October 2008. A final parenting order in favour of the Barrs with reasonable contact reserved to Ms Temple and Mr Holborn was then granted, again by consent, on 11 December 2008.

11 Earlier, on 17 October 2008, Ms Temple and Mr Holborn consulted an experienced family law practitioner at Lower Hutt. Although the appointment was made for Ms Temple she attended together with Mr Holborn. Privilege has been waived so the practitioner made an affidavit. She said she had explained the features of adoption and parenting and additional guardianship orders and:

They both appeared interested in exploring that option [parenting orders] further … [and] [Ms Temple] seemed to me to be clear that she wanted [Ruth] to remain with the caregivers. [Mr Holborn] was less sure. He felt he had been left out of the discussions and needed more time.

They both agreed that [Ruth] needed to stay where she was, at least until they had completed counselling and had the opportunity to take more legal advice if necessary.

12 Despite consenting to the final parenting order on 11 December 2008, Ms Temple applied on 18 February 2009 for a discharge of that order. An interim contact order was then made by consent in March 2009 granting to Ms Temple and Mr Holborn contact with the child, and a further interim contact order was made by consent in December 2009 when the contact was further defined.

13 The proceedings were then heard on a defended basis over an extended four day period in early February 2010.

The Family Court decision

14 The reserved judgment of Judge I G Mill encompasses 186 paragraphs and comprises a detailed recitation of the factual background, issues and the law. Ms Temple and Mr Holborn, the natural mother and father of the child, are New Zealand and Cook Island Mäori. The Barrs, the current caregivers, are Päkehä. Judge Mill recorded the “paramountcy principle” that he had to follow, and made certain relevant factual findings:

• Ruth was firmly bonded to Ms and Mr Barr whom she considers to be her mother and father to whom she is securely attached;

• if Ruth remained in their care she could expect to develop happily into adulthood, although in time would need to understand why she is a Mäori child growing up in a Päkehä home;

• if there was transfer of Ruth to her Ms Temple's care, it would be traumatic initially and successful transition and attachment to

Ms Temple, whilst not guaranteed, could only be achieved if there was a secure and loving setting with professional clinical help;

• Ms Temple and Mr Holborn have an unconventional relationship, not living together but having frequent sexual contact, and have three sons aged between 7 and 10. Their relationship from time to time has not been entirely smooth with evidence of domestic violence requiring some police callouts, over the past ten years. The Judge said that he treated the information contained in police summaries and reports cautiously, but noted the obvious point that if there was a risk of domestic violence, and a risk that Ms Temple and Mr Holborn's relationship was not stable enough, then this would have an impact upon Ruth. The Judge said: 2

• I was concerned from the evidence that there may be a history of domestic violence between the two adults, the risk of which extended until today. I was concerned there was a degree of aggression in their relationship and this was at least one reason why they were not together. I needed to evaluate this as a possible reason for [Ms Temple] being so determined for so long to give her baby to [Ms Barr].

• the Judge said there was a dispute about the nature of this relationship, as given in the evidence of Ms Temple, but the Judge found as a fact that the police were called because of altercations between Ms Temple and Mr Holborn on six occasions between 2000 and 2009. There was evidence as to some convictions of Mr Holborn and the Judge...