Child and Family Law - Exam Notes PDF

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GUARDIANSHIP: Introduction: The introduction of the Care of Children Act 2004 reflected changes in thinking both in NZ and overseas (C v S NZFLR 745). The previous Guardianship Act was more of a focus on the parents while this one shifts the focus towards the children. S4 of the act the paramountcy ...

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GUARDIANSHIP: Introduction: The introduction of the Care of Children Act 2004 reflected changes in thinking both in NZ and overseas (C v S [2006] NZFLR 745). The previous Guardianship Act was more of a focus on the parents while this one shifts the focus towards the children.

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S4 of the act – the paramountcy principle: will the decision advance the child's welfare? o The only question before the courts is what is objectively in the child's best interest (C v LT [2009] NZFLR 1098). o The rights of the parents are of no concern, the courts focus in not remotely on parental rights but only on the welfare and best interests of the child. (MT v AK [2010] NZFLR 613) Rights of the child: S3(1)b – COCA recognises not only child welfare but also recognise certain rights of child. This is a tentative recognition that a child does have rights. What is guardianship? - s15, s16 Rights and responsibilities of guardianship: typically retained by both parents after separation. They both have equal rights and obligations and these typically included day to day care, personal development of the child and important matters that affect the child (s16(1)). o Important matters (s16(2): name, place of residence, medical treatment, education, culture, language and religion (non-exhaustively defined) o Guardianship can exist even though the child is not living with them and this is provided for by s16(3). o All guardians are supposed to act jointly with other guardians (s16(5)) Guardianship vs custody: The term custody was abandoned with COCA , as seen it was seen as creating an imbalance between the parties and almost creating an ownership of the child. We now have the much more flexible parental order which can determine day to day care and contact arrangements. 'Rights' of Guardians: Although COCA refers to a guardians rights, this implies ownership of the child, this is not in accordance with the intentions of the act and therefore a guardians role is one they owe to the child. o Justice Heath: The parents interest is more accurately described as a responsibility or a duty rather than a right – para 61 (Hawthorne v Cox [2008] NZFLR 1) o Any reference to rights in the statute can only be in relation to rights against other adults. Any rights must be exercised to promote the child's welfare. (D v S [2002] NZFLR 116). o Children are not chattels, those who are responsible for the child's birth acquire only responsibilities owed to the child, they don't acquire rights over the child. (L v A [2004] NZFLR 298) o The judge went as far as to akin the relationship between parent and child to that of a trustee and a beneficiary. Who can be a Guardian?

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Natural guardians – s 17. The natural parents: Either both mother and father, or the mother alone. o Both the mother and father are usually joint guardians of the child (s17(1)) o The mother is always a guardian, unless removed by the court. o Mother sole guardian: if not married/ relationship at any time between conception and birth (s17(2)) - (after the COCA enacted) o If child was conceived before the act – mother is sole guardian if the mother was not living with the father at the time the child was born (s17(3)). o Reasoning: legislative assumption that if no relationship with the father he wasn't interested in the child. Father on birth certificate: if not automatic guardian under s17 then will become guardian if registered on child's birth certificate. o Seen as a signifier of the fathers interest. Father apply for guardianship: can apply under s19(1) o Typically apply for joint guardianship, sole guardianship is possible but must be accompanied by application to remove natural guardianship from mother under s29. o Very unlikely, high standard to meet for removal of guardian. o The court must appoint guardianship unless to do so would be contrary to child's best interest (s19(4)(a)). o However: s19 does not create a rebuttable presumption in favour of the father (P v R FC Wellington FAM2002-091-314)(Carter v Horton [2014] NZFLR 641)  The focus is not on shortcomings of father but on the child's welfare. A child's welfare generally be improved by having both natural parents as guardians.  Grace J- no onus put on either party, BUT party opposing appointment must put forward some evidence. o Conflict between guardians: the court may appoint father as guardian even if there is conflict between the parents (so long as in child's best interest (GBF v BP [2008] NZLFR 441) o Willingness to be guardian: father appointed despite extensive criminal history as his willingness to be a guardian weighted considerably. (T v W [2013] NZFLR 57) o Vulnerability of other guardians: father appointed due to vulnerability of other guardians (grandparents) (T v W [2013] NZFLR 57) o When not appoint father: if appointment is contrary to the child's interest. o Typically if there is a dispute between the guardians that cannot be resolved.  Application to the courts can be made to resolve disputes - under s46R. o Respecting child's view: child saw step parent as his father, and didn't want anything to do with bio-father then appropriate for family court to be cautious and risk adverse. Child's welfare is everything so the father should not be appointed (L v R [2009] NZFLR 573)

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Conflict between guardians: fathers was cared for by his mother due to disabilities, mother would end caring for the child. Grandmothers conflict with mothers family would mean warring families and therefore contrary to the child's welfare. (Carter v Horton [2014] NZFLR 641)

Court appointed guardians – s 27 Family court can appoint person as a guardian of the child, the appointment can be in addition or it can be as sole guardian. o There is no limits to can apply or be appointed as guardian. o Courts leave for an application is not required, there is no screening process for this. o Sperm donor and lesbian partner appointed as additional guardians (P v K [2004] NZFLR 752; [2004] NZFLR 421.) o Surrogacy arrangement: mother raising child appointed guardian instead of biological mother (Minkov v Caldwell [2014] NZFLR 922). o If the parents are willing and able to fulfill the guardianship role the other guardians do not normally need to be appointed. (NHP v JTT [2013] NZFLR 866) o Risk of complications with natural father caused maternal grandmothers application for guardinship to be denied depsite the fact that she was the daily carer for the child (HJJ v CJJ [2013] NZFLR 35). A guardian can be appointed for a specific purpose (s27(2a)) or generally and can before a specified time or in perpetuity (s27(2b)) . o They may only want guardianship for the purposes of one element of the child's life, say education. o This partial guardianship application may be more reassuring for the mother as they may have only restricted guardianship and the mother will retain more general full guardianship.

Appointment of partner of parent as an additional guardian – s 23 Step parents as guardians: eligible to be appointed if they have sharing responsibility for the day-to-day care for at least one year (+ additional requirements of prior convictions and child law proceedings) o If both parents guardians then both must agree to appointment of additional guardian (s21(2)). Removal of guardianship – s 29 Upon an application a person can be removed from guardianship under s29. o Court appointed guardian/ testamentary removal: tested on the paramountcy principle (s29(4)). Removal of natural guardian: but where it is a natural guardianship – s29(3) there are two thresholds to be met: o The parents is unwilling to perform the required guardianship duties or is for some grave reason unfit to be guardian.

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The removal of the parents guardianship will serve in the best interest of the child. It is very rare for a parent to have guardianship removed. The HC stressed the seriousness of removing a parent from guardianship (A v DGSW [1995] NZFLR 241). There must be some connection between the behaviour and the harm to the other guardian or the child. o Violence perpetrated outside the family might not meet the test, but within the family likely will. (BLB v RSC [2013] NZFLR 25) o Shortcomings as a parent are not sufficient. o Criminal activity and drug addiction meant he was unable to see his children did not mean he was unwilling to be a guardian. (BLB v RSC [2013] NZFLR 25) - serious intrusion into the natural order of things.  Intentionally acted will on the part of one of the parents likely is required.  Courts are uneasy and cautious about taking away guardianship (D v W (1995) 13 FRNZ 336) Disputes between guardians – s 46R. The COCA is premised on the hope they will act co-operatively (s16(5)), but if you can't reach an agreement then the dispute will be resolved by the court S46R – any of the guardian can apply to the court for direction. o Most issues normally solved by the family dispute resolution service before it gets to court o There are some instances where FDR can be bypassed e.g. If one of the parties subject to family violence Results: The courts can refer the parties to counselling rather than a judge making a decision. Appeals: If the family court does make a direction, then an appeal from the family court to the HC can only take place with the leave of the HC. (s143(2)) No appeal to CA on guardianship disputes (s145(1a)) o This is to try to ensure there is finality for the sake of the child. PJKW v DAR [2006] NZFLR 946 - whether leave to appeal will be granted will depend ultimately on the paramountcy principle.

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Surnames – s16(2a) Could be a dispute over the child's formal or informal name.

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A child's name may be changed for religious reason, catholic adoptive parents changed the name from Pagan. (ACP v JJM [2011] NZFLR 897) o The past presumption of a child having the fathers name, such as in (S v C [1981] 1 NZFLR 13), no longer applies as this is an outdated concept. o Cultural considerations may however cause presumption towards the fathers name (Agius v McNaught (1994) 12 FRNZ 353) Judge wanted to ensure the kids connected with their Spanish cultural heritage. o Taking step parents name: will not be able to take the step parents name if a risk to the child's welfare.

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No relationship with bio-father, wished to absorb child into new family by taking step fathers name. Judge thought it was important she maintained a connection to biological father so his name was added as a middle name. (R v S [2004] NZFLR 708) o Child's wishes: if the child wishes no longer to use biofathers name then being forced to could destroy their relationship which would clearly be contrary to the child's welfare. (Neil v Ottosen (1988) 4 NZFLR 401) o Inappropriate names: if the name is inappropriate then that is not in the interests of the child and the court may assume wardship jurisdiction. (G v K [2008] NZFLR 385). (ii) Religion

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The court takes no stance on religion and the court must remain strictly neutral (A v M 2013 NXFLR 777) o However it is ultimately all decided on the paramountcy principle o Jehovah witness mother brought kids into religion, judge held it was their right to be exposed to each of the parents religions however believed it was in their best interests to limit the intensity of their exposure. (Moore v Moore [2015] NZFLR 457) (iii) Education

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The court take no stance of education, it is a value judgement. One school might be good for one child and not for another. Evidence: The court might look at an independent report on the school - Education Review Office (ERO) report - (F v M [2004] NZFLR 703) Private vs State: The court is not in a position to state whether private schooling is superior to state schooling (Massey v Swanson [2014] NZFLR 818) Home vs State Schooling: There is no presumption or registered schooling over home-schooling. (C v S [2007] NZFLR 583) Religious schooling: once again no presumption - However, Kean J - probably in the child's best interest that they be comfortable with beliefs of both parents and therefore should attend a neutral school (O v S [1992] NZFLR 623) Travel time/ logistical issues: If a child is going to move to new suburb - reduction in travel time means curt may favour the new school (PJKW v DAR [2006] NZFLR 946) o Neighbourhood involvement: if moving to new suburb - child can more easily know neighbourhood children if attend new school (PJKW v DAR [2006] NZFLR 946) Continuity: principle of continuity (s5d): o favours the school the child already attends, if the child is already established and has friends (S v K [2006] NZFLR 613). o Education style: Steiner school favoured over mainstream state school due to continuity concerns - (APM v KMR [2012] NZFLR 980) The child's views - s6 of COCA - the court must have regard to the child's views.

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Child favoured one school over another - Sommerville J 'the starting point is to consider the child's developing value system and use this for the basis of the decision (JAPM v MEF [2008] NZLFR 816). o Fees: If a parent favoured a state school, the court would not order them to contribute to private school fees if they did not wish to. (Massey v Swanson [2014] NZFLR 818).

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(iv) Medical Treatment. - s16(2)c - concerns more serious medical issues - not routine medical treatment. Medical provider: The choice of a practitioner or dentist is a guardianship issue. (ARB v KLB[2011] NZFLR 290) Drug Prescription: parental dispute, the drug was ordered by the court under this section.(PMH v BKH [2009] NZFLR 197) Surgery: parental dispute as necessity of surgery - court ordered surgery as they felt it was necessary - (J v A (Guardianship) [2006] NZFLR 405) Child's Views: On the Gillick principle at a certain stage the court will refer to the child's own views.

(v) Relocation disputes: Changes to the child's place of residence (city or country). o Because residence is a guardianship issue - parents need to get together to try and agree. (a) Difficulty of disputes: Compromise not easy: Where a parent wants to relocate and is going to impose substantial geographical distance it is inevitable going to raise emotional issues and is not going to be easy to find a solution by way of compromise. (R v S [2004] NZFLR 207) o Focus of the court: Which of the parents is best able to respond and recognise the child's needs and developmental goals. (GMS v SCS [2011] NZFLR 256) o Freedom of movement: value freedom of movement in our society - factor in modern life. OECD - 25% of NZ tertiary qualified lived overseas. (PRM v NJP[2008] NZFLR 544) o Common for northern hemisphere people to do OE in NZ (AW v AM [2013] NZFLR 252)  Child's parental relationships: value that competes with freedom of movement. o It is not about the parents - the deciding factor will be the child's best interests. (ARR v SAD [2013] NZFLR 264) - relocation to Arrowtown allowed despite fathers of losing relationship with children. Mother fear of living in CHCH post- earthquake - relocation in child's best interest. o Well- being of carer: o Argued that child's wellbeing inextricably linked with primary carer. o Countered that best interest served by having relationship with both parents.

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SC accepted relocations will have detrimental impact, the mere fact there is detriment does not cause presumption against relocation (Kacem v Bashir [2010] NZFLR 884) Lose-lose option: often faced with a lose-lose option, trying to choose the least detrimental alternative (H v H [2009] NZFLR 1113) o Any option would be second best to the status quo/ the couple getting back together, though likely not real options (WM v TS [2010] NZFLR 371) o Whatever option chosen the child was going to experience some grief (Lyon v Wilson [2017] NZFLR 885) o Heath J - didn’t like this - takes the emphasis away from the positive approach of finding what is best for the child. (b) No presumptive approach Former English approach: custodial parents wish to relocate should be given considerable weight - particularly where refusal to relocate would cause stress that would impact on parenting ability. (Payne v Payne [2001] 2 WLR 182) - no longer followed. NZ approach rejected Payne v Payne: CA quashed HC citation of Payne v Payne. Contrary to the child-centered approach - requires multi-faceted analysis of welfare rather than zeroing in on one factor (D v S [2002] NZFLR 116). o Approved by SC in Kacem v Bashir [2010] NZFLR 884. - has to be approached in a fact specific way without weighting of one principle over another. "no staututory presumption one way or another" o Right of freedom of movement subervient to child's welfare. Von Dadelson J (DLS v DLB [2006] NZFLR 533). o If present arrangements working well - will hold weight but no presumption (Kacem v Bashir). Very difficult to predict: individual fact-specific approach means difficult to predict success of application. SC in Kacem v Bashir. Evidence: no onus to show best interest to relocate but need cogent evidence of best interests. o Applicant must have sufficient reliable evidence to conclude that relocation is in the child's best interests- Duffey J in (B v B [2008] NZFLR 1083.) o Because no legal onus on either party - respondent might have to show evidence why they couldn't move to new place (NV v MW [2006] NZFLR 485). Adult motives: often desire to move parent rather than child oriented. o If reasons for application adult driven and not by a desire to benefit the child -will be detrimental to application Mckenzie J in DRTTKO v EF [2010] NZFLR 337 o Relocation application rejected as father lacked insight to child's repercussion and reasons for move focused on fathers rather than child's interest. (M v E [2010] NZFLR 358). o Ability of parents to be co-operative will be important if move is to be in child's welfare. Especially if concern that geographical distance will result in emotional distance. DRTTKO v EF [2010] NZFLR Reasonableness: Applicant must show reasonable basis for claiming move is in the child's welfare.

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Whimsical reasoning: relocation can be denied if reasons not logical or well though through (LP-JR v MCW [2013] NZFLR 115) Mobile society: reality of a mobile society can be considered by must be balance with the fact the child will have reduced contact (ARR v SAD [2013] NZFLR 264). Economic reasons: child's financial security might be relevant. Great job opportunity for parent may be a compelling reason (PRM v NJP [2008] NZFLR 544) Psychological benefit for child: o Inevitable that parents well-being will flow to the child - to some extent share benefits and disadvantages with child. Pressley J - (MBS v EAC [2005] NZFLR 1) Psychological benefit for parent: might be relevant if the parental benefit of move will affect ability to be a loving dedicated parent - (e.g. fear of earthquakes - (ARR v SAD [2013] NZFLR 264) Effect of denied application: emotional effect of denied application is relevant and will be considered. But not treated as a primary or central factor . Harrison J - (S v L [2008] NZFLR 237). Parents wellbeing: if the parent moves in attempt to establish better life for them and her child this might be sufficient. o 'Needs of 2 year old child and mother inextricably woven - welfare and best interests met by allowing mother to move to study and establish a career - (ZB v DS [2013] NZFLR 110.) o Held that for parental wellbeing to be valid applicant will need to establish (via s133 report) that they will be so harmed by staying, emotional health will deteriorate and detrimentally impact the child. (B v B [2008] NZFLR 1083)  Do they need to move in or...