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 WWW.JUSTICE.GOVT.NZ/FAMILY/LEGISLATION/RESTRICTIONS.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV-2011-404-002711 UNDER

the Care of Children Act 2004

IN THE MATTER OF an appeal from the decision of the Family Court

BETWEEN

JS Appellant CR Respondent

AND

Hearing: Counsel:

20 September 2011 J H Hunter for Appellant S N Kay for Respondent J Irving, Lawyer for Children 26 October 2011 RESERVED JUDGMENT OF WOOLFORD J

Judgment:

This judgment was delivered by me on Wednesday, 26 October 2011 at 12:30 pm pursuant to r 11.5 of the High Court Rules,

Registrar/Deputy Registrar

Solicitors/Counsel: Ms J Hunter, William Martin Chambers, 152 Anzac Avenue, Auckland. Kay Law; PO Box 4164, Shortland Street, Auckland 1140. Ms J lrving, PO Box 47 724, Auckland 1144.

J S V C R HC AK CIV-2011-404-002711 [26 October 20111

Introduction

[1]

The appellant, JS, and the respondent, CR, have two children a boy, T, aged

12 and a girl, A, aged 8. [2] JS appeals against a decision of Judge Burns in the Family Court dated

11 April 2011 in relation to a contested application for parenting orders. In a careful 106 paragraph judgment, Judge Burns ordered that the appellant's guardianship rights (as to decision making) be suspended for a period of two years. In effect the sole guardian and decision maker on any guardianship issues is, in terms of Judge Burns' decision, now CR. Judge Burns also made a parenting order which provided that the children are to be in the day-to-day care of CR. JS is to have care of the children every Wednesday night and alternate Friday, Saturday and Sunday nights (that is, a 9/5 arrangement). Various ancillary orders and directions were also made. Grounds of appeal

[3]

The first ground of appeal is that Judge Burns made orders depriving JS of

his guardianship without jurisdiction and without application for that order pursuant to the Care of Children Act 2004 (the Act) and contrary to the established principles for the making of such an order. [4] The points on appeal originally contained a number of other grounds. These

included that the Judge made a number of factual findings that were in error or erred in his report of the appellant's submissions. It was also alleged that the Judge did not give sufficient weight to material factors and made adverse findings about JS that were insufficiently grounded in the evidence or were made without sufficient consideration of counterbalancing evidence. Finally, it was alleged that the parenting order made by Judge Burns was not in the best interests of the children as it did not optimise the time the children spent with each parent, was against the wishes of the children and was not in accordance with the recommendations of the s 133 report writer.

[5]

At the hearing of the appeal, the appellant effectively abandoned the grounds

of appeal other than the first although counsel submitted that the parenting order in its present form could not survive because it was "infected with the disenfranchisement" of JS. Counsel invited the Court to put a fresh parenting order in place, at least on an interim basis, based on a parenting plan the appellant submitted to the Court. Form of order

[6]

Following Judge Burns' decision, two separate orders were drafted by

counsel and sealed by the Family Court. The first was a parenting order under ss 40(3), 48 and 55 of the Act. The second was entitled "Suspension of Guardianship Rights and Obligations Order" and was purportedly made under ss 16(3) and 56(1)(c) of the Act. [7] The latter order in its entirety states:
On Application the Court Orders that: The guardianship duties powers rights and responsibilities of [JS] 1. arising pursuant to s 15 and s 16 of the Care of Children Act 2004 in relation to [T] [A] are varied pursuant to sections 16(3) and 56(1)(e) of the Care of Children Act 2004 by suspending the requirement to act jointly and decision making powers for a period of two years subject to the following [JS] must when the children are in his care a. act in the best interests and welfare of the children when the children are in his care; inform [CR] of any guardianship issues affecting the children; and consult [CR].

b.

c.

2.

[CR] shall have sole guardianship decision making powers for a period of two years or such earlier time as the Court rules.

3.

[CR's] obligation, imposed by section 16(5), to act jointly (in particular by consulting wherever practical with the aim of securing

agreement) with [JS], shall be suspended for a period of two years or such earlier time as the Court rules,

Discussion

[8]

It was Judge Burns himself who first raised the issue of JS's guardianship

apparently when counsel and JS (who was unrepresented at the hearing) were making closing submissions. There was no application by CR to remove JS as a guardian of the children or to suspend or vary his guardianship rights. In his
judgment, Judge Burns stated: [62] I consider nearly all the conflictual situations given as examples before the Court arise when father is operating as a guardian. It does not arise when he is operating as a caregiver. This raises the issue therefore as to whether I can remove him as a guardian or suspend or vary his guardianship rights as one possible solution to the ongoing conflict issues. .,. [9] Judge Burns then referred to s 29 of the Act which provides: 29 ( 1) Court may remove guardians On an application for the purpose by an eligible person, the Court may make (a) an order depriving a parent of the guardianship of his or her child; or an order removing from office a testamentary guardian or Court-appointed guardian; or an order revoking an appointment of an additional guardian made under section 23.

(b)

(c)

(2)

In this section, eligible person, in relation to a child, means any of the following persons: (a) (b) (c) (d) (e) (0 a parent of the child: a guardian of the child: a grandparent or an aunt or an uncle of the child: a sibling (including a half-sibling) of the child: a [spouse or partner of a parent] of the child: any other person granted leave to apply by the Court.

(3)

An order under subsection (1)(a) (that is, an order depriving a parent of the guardianship of his or her child) must not be made unless the Court is satisfied (a) that the parent is unwilling to perform or exercise the duties, powers, rights, and responsibilities of a guardian, or that the parent is for some grave reason unfit to be a guardian of the child; and that the order will serve the welfare and best interests of the child.

(b)

(4)

An order under subsection (1)(b) or (c) must not be made unless the Court is satisfied that the order will serve the welfare and best interests of the child. On making an order under subsection (1), the Court may also make on its own initiative an order under section 27.

(5)

[10]

After considering the wording of s 29 and case law, Judge Burns concluded

that the stringent test set out in s 29 could not be established in this case and there was therefore no basis on the evidence before him for the removal of JS as a guardian. [11] Judge Burns then referred to s 16 of the Act which provides:
16 (1) Exercise of guardianship The duties, powers, rights, and responsibilities of a guardian of a child include (without limitation) the guardian's (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 contributing to the child's intellectual, emotional, physical, social, cultural, and other personal development; and determining for or with the child, or helping the child to determine, questions about important matters affecting the child.

(b)

(c)

(2) Important matters affecting the child include (without limitation) (a) (b) the child's name (and any changes to it); and 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 where, and how, the child is to be educated; and the child's culture, language, and religious denomination and practice.

(d) (e) (3)

A guardian of a child may exercise (or continue to exercise) the duties, powers, rights, and responsibilities of a guardian in relation to the child, whether or not the child lives with the guardian, unless a Court order provides otherwise, Court order means a Court order made under any enactment; and includes, without limitation, a Court order that is made under this Act and embodies some or all of the terms of an agreement to which section 40(2) or section 41(2) applies, However, in exercising (or continuing to exercise) the duties, powers, rights, and responsibilities of a guardian in relation to a child, a guardian of the child must act jointly (in particular, by consulting wherever practicable with the aim of securing agreement) with any other guardians of the child. Subsection (5) does not apply to the exclusive responsibility for the child's day-to-day living arrangements of a guardian exercising the role of providing day-to-day care.

(4)

(5)

(6)

[12]

Without any analysis of the wording of s 16, Judge Burns next quoted

extensively from a previous decision of his, BF v STA, 1 in which he accepted the view expressed in Care of Children in New Zealand2 that s 16(3) recognises that guardianship rights can be removed or limited by Court order (not just by a parenting order made under the Care of Children Act 2004 by the Family Court but by any other order made by another Court or under any other statute: s 16(4)). [13] In BF v STA Judge Burns stated that s 16(3) and (4) empowers the Court and

provides jurisdiction to vary, suspend or modify the guardianship status of one party to enable the Court to tailor appropriately the ongoing relationship between the parents as guardians to fit the facts of any particular case.

BF v STA FC Auckland, FAM 2006-004-000099, 25 September 2009. Robert Ludbrook and Lex de Jong, Care of Children in New Zealand, (Brookers, Wellington, 2005) at [CC16.07].

[14] Judge Burns considered that this view was reinforced by s 56 of the Act. Section 56 provides: 56 (1) Variation or discharge of parenting and other orders On an application for the purpose by an eligible person, the Court may vary or discharge any of the following: (a) a parenting order (whether the order is about the person or persons who have the role of providing day-to-day care for a child, or about contact with the child, or about both of those matters): any other order about the role of providing day-to-day care for, or about contact with, a child: an order about the upbringing of a child.

(b)

(c) (2)

On an application for the purpose by an eligible person, the Court may vary or discharge an order vesting the guardianship of a child in 1 parent or in any other person or persons. If the order is discharged, and no other order with respect to the guardianship of the child is made, guardianship vests in the person or persons (if any) who would be the guardian or guardians if the order discharged had not been made. In this section, eligible person, in relation to an order relating to a child, means any of the following persons: (a) (b) a person affected by the order: a person acting on behalf of the child.

(3)

(4)

Subsections (1) and (2) apply to orders of the kind referred to in those subsections whether or not the orders were made after the commencement of this Act, but nothing in those subsections applies to (a) any order under the Children, Young Persons, and Their Families Act 1989; or any interim order or adoption order under the Adoption Act 1955.

(b)

(5)

Subsection (2) does not limit section 29.

[15] In BF v STA Judge Burns concluded: I consider that guardianship status would fall within the definition of [29] s.56(1)(c) "an order about the upbringing of the child". I consider those words are widely drafted and would be sufficient to cover orders made of a guardianship nature, and in this case I have already made a declaration that

the father is a guardian, which is sufficient in my view to constitute an order bringing the matter within s 56. [16] Apart from quoting extensively from his previous decision in BF v STA,

Judge Burns did not cite any other authority for the proposition that he had the jurisdiction to suspend the appellant's guardianship rights. [17] It is my view s 16(3) does not empower the Court to remove or limit the

duties, powers, rights, and responsibilities of a guardian. Indeed s 16(3) does not confer a power. Rather it recognises that a Court order, made pursuant to a power elsewhere conferred under the Act or under any other enactment, may have this effect. [18] Clearly one such order is a parenting order which limits the guardian's role of

providing day-to-day care for a child. Section 16(4) also refers specifically to orders made embodying terms of certain agreements between parents or guardians of a child (s 40(2)) and between the parents of a child and a donor or donors (s 41(2)). The authors of Care of Children in New Zealand refer also to a separate power to make guardianship, custody and access orders under various sections of the Children, Young Persons, and their Families Act 1989 and, in particular, ss 101, 110 and 112. They also observe that the Family Court can make protection orders under the Domestic Violence Act 1995 which place restrictions on the guardianship rights of violent parents and guardians: ss 20, 21, 27, and 28. [19] In each of these instances the Court order is made pursuant to a separate

statutory power and has the effect of removing or limiting some or all of the incidents of the duties, powers, rights, and responsibilities of a guardian. Section 16(3) recognises this. It does not confer any more general power. [20] It is my view therefore that Judge Burns has exceeded his jurisdiction in

purporting to suspend the appellant's guardianship rights. Guardianship is a fundamental right of a parent. Section 16(3) cannot be interpreted as conferring on the Court a general power to deprive a parent or guardianship rights, even temporarily, without application, prescribed procedures or specific guidelines.

[21]

It is interesting to note that in BF v STA, Judge Burns considered that he had

jurisdiction to suspend a father's guardianship rights because in that case he had already made a declaration that the father was a guardian which Judge Burns said was sufficient in his view to constitute an order bringing the matter within s 56. [22] Judge Burns stated: [14] It is acknowledged in this case that the father is a guardian because the parties were living together in a de facto relationship at the time of the child's birth (s.17). This was common ground between the parties and accordingly, 1 make a declaration by consent that the father had the status of guardian as at the date of birth of the child. [23] It is my view however that a declaration was unnecessary because the father

in that case was guardian by operation of law. The Court made no order appointing him as a guardian. [24] The same situation pertains in the present case. JS is the children's guardian

through operation of s 17 of the Act which provides: 17 (1) Child's father and mother usually joint guardians The father and the mother of a child are guardians jointly of the child unless the child's mother is the sole guardian of the child because of subsection (2) or subsection (3).

.., [25] An order was therefore not necessary and had not been made appointing JS as

guardian of the children. Section 56(1)(c), on which the Judge relied, provides power to "vary or discharge ... an order about the upbringing of a child". There was however no such order in place for the Judge to vary or discharge. [26] There are also, in my view, other difficulties with the Judge's reliance on

s 56. I do not regard s 56 as empowering the Court to vary a Court order unless that variation is within the scope of the statutory power pursuant to which that order was first made. [27] The power is s 56 is also specified as being available on an application for the

purpose by an eligible person. There was, in the present case, no application for the

suspension of the appellant's guardianship rights by an eligible person as defined in s 56(3). [28] Although Judge Burns did not specifically seek to rely on s 48(5) of the Act

which enables the Court to impose any terms or conditions it considers appropriate when making a parenting order, counsel for CR submitted that Judge Burns had an unfettered discretion under s 48(5) and that the order suspending the appellant's guardianship rights can be seen as having been made under this section. [29] However, I am of the view that though a parenting order can extend to certain

matters of guardianship it cannot include the deprivation of a parent of guardianship of his or her child. The procedure for the deprivation of a parent's guardianship rights is set out in s 29. In my view, suspension of guardianship is a form of deprivation. Absent a specific provision enabling interim orders to be made temporarily depriving a parent of the guardianship of his or her child, the deprivation of a parent's guardianship rights for which no separate provision is made (as it is, for example, for day-to-day care) must be dealt with under s 29. Parenting plan

[30]

Supplementary written submissions were received on 5 October 2011 from

counsel for the respondent and on 14 October 2011 from counsel for the appellant and the lawyer for the children as to what amendments were necessary to the parenting order made by Judge Burns if this Court found that the Judge did not have the jurisdiction to suspend the appellant's guardianship rights. [31] Counsel for the appellant submits that it would be most appropriate for the

Family Court to rehear argument in respect of the parenting plan but nonetheless attached a draft plan which could be made as an interim order to prevent the parties being in hiatus, The draft plan is said to reflect the children's views as expressed to their lawyer for the purposes of the appeal. [32] Counsel for the respondent submits that the Court should endorse paragraphs

1 8 of the existing parenting order and, should the Court overturn the suspension of

the appellant's guardianship rights, replace paragraphs 9(a) - (j) with other substantive conditions which were annexed to her supplementary submissions. [33] The lawyer for the children accepts that paragraphs 1 8 of the existing

parenting order would not be affected if the Judge's order suspending the appellant's guardianship rights was overturned but submits that paragraph 9 in its present form conflicted in large part with the appellant's guardianship rights and obligations. She then attempts to synthesise three parenting plans which are said to be before the Court, two of which were annexed to a memorandum of counsel for the appellant dated 19 September 2011. The first was available to the Family Court at the time of the hearing. It was put forward by CR. The second was put forward by JS to this Court but only immediately prior to the hearing of the appeal so that counsel had insufficient time to address it effectively at the appeal. The third plan was a revised plan put forward by CR after the hearing of the appeal in this Court and was annexed to counsel's submissions dated 5 October 2011. There is however, in fact, a fourth plan put forward by JS. It revises his earlier plan and was annexed to counsel's submissions dated 14 October 2011. The lawyer for the children did not have the opportunity to consider the fourth plan because her submissions are dated the same date as those of the appellant to which the fourth plan was annexed. [34] The lawyer for the child regrets "the somewhat tortuous nature" of her

submissions in traversing the variations of the proposed parenting plans but submits that it is preferable this Court "now bring this matter to finality by such amendments as the Court sees as appropriate to the parenting order to incorporate a parenting plan that would enable these parents to now proceed with arrangements suitable to the circumstances". [35]

This Court does not, however, have the particular expertise of the Family

Court in dealing with the detailed conditions of a parenting plan. Regretfully, I also doubt that any plan that I may put into place will achieve finality between the parties. It will therefore be necessary for the matter to be remitted to the Family Court to finalise the parenting plan.

Result

[36] The appeal is allowed. The order suspending the appellant's guardianship rights and obligations is quashed. The matter is remitted to the Family Court to rehear argument on the parenting plan. In the interim, however, paragraphs 1 8 and 9(d), 9(e), 9(g), 9(h) and 9(j) of the parenting order remain in force while paragraphs 9(a), 9(b), 9(c), 9(f) and 9(i) are hereby revoked as a result of the appeal being allowed. I regret that I am not able to put in place alternative arrangements for communication between JS and CR and for decisions to be made about the children's extracurricular activities but urge the parties to co-operate to the extent possible to ensure that the children are not detrimentally affected pending a further hearing in the Family Court.