LAWS309 Child and Family Notes PDF

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LAWS309 Child and Family Notes19/2/Child Oriented: Most vulnerable member of the family Most in need of the laws protection See children as autonomous human beings, whose rights should be protected, not victims ‘Gillick competent’ (HoL) frequently endorsed Not an adversarial approach, avoid confront...

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LAWS309 Child and Family Notes 19/2/19 Child Oriented: - Most vulnerable member of the family - Most in need of the laws protection - See children as autonomous human beings, whose rights should be protected, not victims - ‘Gillick competent’ (HoL) frequently endorsed - Not an adversarial approach, avoid confrontation, is inquisitorial - FDR, family disputes resolution, lawyers come in at the end of the dispute, only at beginning if urgent - Looks to the future, what’s best for the child - PTS, parenting through separation - Family Courts Act 1980, s9A, lawyer must promote reconciliation Themes of Family Law - K v M, Judge Ullrich QC - Emphasis of the welfare of the individual child and the individual family, differences between Maori and Pakeha - Childs welfare, other people determining for the child - Childs rights, recognition of rights gives the child respect and autonomy - 1989 UNCROC - C v S, children are not to be treated as any less worthy than adults - COCA s143(2) independence of the child - Recognition of cultural diversity Family Court - Division of the DC - PFCJ Moran - COCA s4 paramountcy principle (child welfare) - COCA s132-131A can request reports from Oranga Tamariki, s133 Psychologist report - S7 court can appoint a lawyer to represent the child if there are safety and wellbeing concerns - Limits on appropriate cross-examination - Rules on evidence are less stringent - Inquisitorial approach, judges drive the inquiry, courts are given a greater leeway to deal with children - Blend of adversarial R v R Cultural Sensitivity: Maori and family law - Whangai parents – not biological - Children as taonga - Articles of the Treaty, Art 2 protect taonga UNCROC - Duty to respect and ensure various articles (54) - Art 12 child’s right to participate in decision making - Art 13 right to express views - Art 9(3) child separated from parents has right to make personal relationships and direct contact

26/02/19 CARE OF CHILDREN ACT 2004. GUARDIANSHIP: 1. Introduction CvS -

COCA introduced significant changes effecting changes and thinking since 1968 S4 paramountcy principle, everything that happens must be governed by this

C v LT - Perceived right as parents, clear what is objectively in the child’s best interest - Court isn’t concerned with perceived injustices the parent thinks MT v AK - Coyle, the adults see it as a clash of their rights - Father argued right to relationship with baby - Mother argued she had a right to raise child undistracted from stress he brought her - Judge said focus not on rights of parents at all only welfare and best interest of the child S3(1)(B)- recognition of children’s rights 2. The concept of guardianship – ss 15 and 16. - Terms of custody and access gone but guardianship remains - 1968 act custody meant physical possession and care of the child - Guardianship is the key responsibility and power - If a child is born after the new Act, both parents will be guardians if they were married or living together in the period between conception and birth, equal powers - Under previous act one parent would get a sole custody order, in no way removed guardianship from the other parent, in practice the custodial parent ended up ‘owning the child’ - Because of that perception COCA 2004, got rid of custody and access, now have a parenting order, can either be for day to day care or for contact. - A parent can have guardianship responsibilities even if the child is not living with the parent - S15 guardianship means all the duties, powers and responsibilities that the parent has to the upbringing of a child - S16 sets out, having the role of day to day care etc Hawthorne v Cox - A parents’ interest in the development of their child is more accurately described as a duty or responsibility rather than a right. DvS -

LvA -

Any reference in the statute of the rights of the parent must be construed as rights against any other adult rather than against the child Any rights must be exercised in the interest of the child in accordance with the paramountcy principle

Children didn’t ask to be born, and those responsible for their birth apply responsibilities that are owed to them, not rights over them

3. Natural guardians – s 17. - Natural/Biological - Court appointed

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Testamentary Court (wardship jurisdiction) Will either be both parents or the mother alone S17(2) the mother will be the sole guardian, if she was neither married to or living the father at any point between conception and birth S17(3) before 1st July 2005, neither living with father in a de facto relationship S18 guardianship may also be awarded to the father who wasn’t living with the mother, if he is registered on the birth certificate S19 father may apply to be appointed guardian, as well as or instead of the mother (4)(a) must appoint unless in contrary to child’s welfare

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Carter v Horton - Lange, indicated that he thought there was a danger that if there was any onus of proof on the mother then there would be a danger on the presumption, rather than focusing on the real issue the welfare of the child - Parliament in s19 said the child generally benefits from both parents having guardianship - Mr C had severe disabilities and was taking care of by his mother, meaning they would be making the decisions, the family were in hostile relations with the other family - If appointment was made there would be two hostile factions, not in agreement - Not in child’s interest so father was not appointed TvW - Father applied from prison to be appointed guardian, had long criminal history, caregivers of child were maternal grandparents. Mother incapacitated from mental health issues - Judge said, the father’s willingness to be a guardian had to be seriously weighted by the court - Father appointed, court said was conscious of the vulnerabilities of the elderly grandparents GBF v BP LvR -

Couldn’t be sure if he was the father until DNA tested at 12 years old Mother had deliberately done this, was in a relationship with another man for 12 years, child saw his as his father and had been appointed guardianship Child now 15, said he didn’t want anything to do with his biological father, child’s view is very important HC accept that the family court’s reasoning not to appoint him guardian was correct, because the outcome of doing so was unknown

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4. Court appointed guardians – s 27 - Can appoint in addition or as sole guardian - Doesn’t limit the number of persons - Legal stranger to the child could apply - Father can get limited application under this PvK -

Sperm donor, both donor and lesbian partner were appointed guardians under s27

Minkov v Caldwell - Surrogate mother applied and got guardianship HJJ v CJJ - Maternal grandmother applied, and refused even though the child was mostly in her day to day care - Because the father had care for 5 days a fortnight - If she was appointed there could be risk of cpmplications with the father NHP v JTT - Paternal granadparent applied, judge said where there are parents willimg and able to do their role, additional guardians fo not noramlly need to be appointed 5. -

Appointment of partner of parent as an additional guardian – s 23 i.e. appointment of a step parent Designed to give legal effect to arrangements that are in place

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Providing extra stability and security to the child

6. Removal of guardianship – s 29 - Court can remove guardianship - S29 removal, s4 what is in the child’s best interests - S29(3) parent can only be removed because is unwilling to provide the duties, or unfit, and the order or removal will serve in the best interests of the child A v DGSW - Cannot remove simply because it is in the child’s best interests BLB v RSC - A serious intrusion into the natural order of things to take away guardianship from the parent - Must be a connection between behaviour of the unfitness and the welfare of the child - Behaviour must harm the other guardian and the child - Mere parenting deficits wont necessarily meet the thresholds DvW - Can still not trust the child to be living with the parent, but the parent can still remain in guardianship Minkov v Caldwell - Has to be unwilling due to their own decision not circumstances 7. Disputes between guardians – s 46R. - Seek resolution through the court under s46R - S46E must go through FDR before court, unless been subject to physical violence - S46G provides counselling to reach common ground before going to a judge - S143(2) can be an appeal to the HC but only with leave of the HC - S145(1)(a) no appeal to the CA, to try and ensure some finality PJKW v DAR - Given that guardianship involves important matters, might seem self-evident that leave should be granted that the matter is serious enough to be granted leave by HC (i) Surnames - S16(2)(a) what the child is to be called is a guardianship matter - Formal or informal - 1980’s seen to have the fathers last name ACP v JJM - Adoptive parents committed and active catholic - Had care of 1 year old since births, applied to change the name from pagan chosen from the biological mother - Parents were successful to change the name SvC -

Child had meaningful relationship with father presumption it should carry on its name

Douglas v Wharepapa - Judge referred to the child’s whakapapa and lineage Agius v McNaught - Father Mr A was Spanish, mother remarried and wanted to be known as M - Judge ordered children should be known by A for the need to know their cultural identity and heritage RvS -

7 year old known by her step fathers name for 5 years Access meant bio father hadn’t seen her for 4 years Mothers wish to absorb the child into the new family proposed a grave risk, fathers name proposed as a third name, important not to lose all linkages with the father

Neil v Ottosen

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11 year old boy was if forced to use his father's name, when he wanted to use his step fathers could damage the relationship, application dismissed

GvK - Child made an interim order to the court - Name not in best interest (ii) Religion Moore v Moore - Mother of two young children separated from father and became Jehovah witness - Father had primary care - When mother had care she took the out witnessing on the streets, expressed a strong wish to do so - Judge said when the children were in the mothers care they could do bible study, watch videos but could not go to meetings or go witnessing - Children had the right to be exposed to each of their parent's beliefs, and the law must remain strictly neutral - Concerned for the cognitive dissonance, what we think and what we feel - Best interest to reduce the intensity of the exposure AvM - Mother Muslim and father Hindu - Judge said no religious instruction to child, no parent could agree (iii) Education Massey v Swanson - Issues of schooling and education involve large value judgements - Courts are strictly neutral, no preference of private or state schooling CvS - No presumption that a registered school is to be preferred over home schooling FvM - Can look to ERO reports OvS - In the childs best interest that he/she feel comfortable with the religious beliefs, recommended to attend neutral state school PJKW v DAR - Travel time to school will be considered - Getting to know local children SvK -

Continuing in an old school preferable

AJL v BSO - Principle of continuity APM v KMR - Same style of education, preferred JAPM v MEF - Girl had been to a private Anglican girls school - Debate over what secondary school to go to, mother wanted co-ed Presbyterian, father wanted same sex - Education was same - Girl wanted co-ed, costs weren’t an issue as had family trust - Gillick, as a child matures greater concern should be held to their views Massey v Swanson - If parent does not want to pay private school fees, the judge will not order them too (iv) Medical Treatment. ARB v KLB - Judge noted whilst routine medical treatment is excluded, choice of medical practitioner would be a guardianship issue

PMH v BKH - Ritalin for ADHD, parents couldn’t agree - Drug ordered by the court J v A (Guardianship) - Couldn’t agree whether there was a need for surgery to correct their teenage boys’ legs - Medical advice was to do quickly before he stopped growing - Surgery was directed by the courts

(v) Relocation disputes -

Either change of city within NZ domestic, or change of country international

(a) Difficulty of disputes: RvS -

Where a parent wants to relocate, leaving substantial geographic distance It will leave great emotional difficulty

GMS v SCS - Choice either to allow the child to move, or grant day to day care to the other parent that stays in the country - Question is which parent is best able to recognise and respond to the child’s needs PRM v NJP - Frequent travel is a fact of life AW v AM - OE young people coming into NZ noted - Relationships are formed and breaks down, the other parent wants to go home - Need of the child to have good access with the other parent ARR v SAD - Post-quake case, relocate 2 children from CHCH to Arrow town - Mother had a fear of loss of relationship with her new husband, and earthquakes - Father feared losing a regular relationship with his 2 sons - Relocation was allowed Kacem v Bashir - SC accepted most relocations are going to involve some detriment to the other parent’s relationship - Doesn’t mean against relocation - S48 parenting orders - S57 variation to parenting order - Pursuant to s4 and s5 HvH -

Courts looking for the least determinative alternative

WM v TS - Has to way up second-best option to the status quo of the couple getting back together again

Lyon v Wilson - Thought likely the child would experience considerable grief whatever option the court came to (b) No presumptive approach Payne v Payne - English CA - Ruled the custodial parents wish to relocate would be given considerable weight - Saying no would destabilse parent, therefore child, happy parent happy child DvS - NZ - Cited Payne, allowed mother to relocate to Ireland - Decision quashed by CA rejected the view any weighting should be given to the emotional wellbeing of the parent - Multifacted analyisis of welfare instead of one aspect Kacem v Bashir - No specific reference to D but same approach - Mother refused permission to relocate to AUS - SC, judges couldnt agree whether the CA judges had given partial to the principle of continuity - Agreed relocation had to be approached in a fact specific way without any weighting to any particular factor - If looking at the facts it is found present arrangements are settled and working well that factor will carry weight, but there is no presumption DLS v DLB - Any right of a custodail mother to decide where she wants to live is subservient and subordinant to the childs welfare and best interest No onus of proof, but need cogent evidence of best interests: - Doesn’t need to show formal BvB -

The applicant must leave sufficient reliable evidence to allow the court to conclude the relocation is in the child’s best interest

NV v MW - Evidence for why the other parent cannot move Adult motives? DRTTKO v EF - Found the primary motive for the father’s application to move was so he could form relationship with new partner - Reasons were adult driven, not to benefit the child - Father struggled to answer what was the benefit to the child, said was warmer - Turned down, ability of the applicant to be co-operative with the other parent is significant, otherwise real concern geo distance would translate into emotional distance MvE - Judge declined father’s application to relocate - Lacked concern for the significance and what was important to the son, focussed on his interests rather than the child's Reasonableness: ARR v SAD - Has to be balanced against the reduced contact of the child LP-JR v MCW - Mother planned to relocate, declined, judge said objectively the move wasn’t logical reasonable or sensible

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Reasons weren’t thought through, almost whimsical, move to marry man over the internet While there is no onus of proof on the applicant, there must be some genuine reliable reasonable evidence that the move is in the child’s welfare

Economic benefits for child: - Permission granted if financial benefits will enhance the child PRM v NJP - Mother permission to relocate, exceptional job offer available in Canada she couldn’t have gotten here Psychological benefits for child: - Emotional wellbeing MBS v EAC - Crossover between the interest of the parent who wants to relocate and the child - Matters such as the emotional wellbeing, support networks and the comparative advantages of the environment may well relate to both parent and child - Personal wellbeing of parent, and effect on the parenting, does remain a relevant factor, to be weighed up with the others SvL - Confirmed MBS - Emotional wellbeing of parent is a significant factor, but not primary central factor ARR v SAD - While judge could not give mothers wellbeing presumptive weight, her ability to function s a parent would be significantly impaired if she had to stay in CHCH - Resentment and weariness would create a negative impact ZB v DS - Mother and 2-year-old WINZ - Wanted to relocate to start a diploma - Said needs or child and mother were inextricably intertwined, said his interests would be best met by a well-functioning mother who was entering into a career BvB - S133 need for a psychological report - Cogent evidence CPS v PKD - Relocate, judge said central issue to determine was it needed in order to properly function as a parent - Evidence said she was not so unwell that they needed to relocate AMO’H v AJO’H - Needed to balance the risk to the child if he declined relocation and the mothers condition worsened - Risk if the child’s attachment to the father was disrupted - Judge felt the latter risk was certain, the first risk, was more speculative, so denied Relevance of parental conflict: TLW v LCB - Exposure to high level of confit harms the child’s welfare taking that away is beneficial KDR v GE - Mother argued reducing the high level of conflict with the father would benefit the child - If applicant seen as being responsible for that conflict, will have adverse effects Stanley v Collins - Promote conflict, can’t see child’s best interest Contact arrangements with other parent: - S52 must consider how the parenting order will work - Must promote contact unless not in child’s best interest UN Convention on the Rights of the Child: Arts 9.3 and 18.1: - Direct contact with both parents on a regular basis LP-JR v MCW

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Articles described as relevant to parenting order contact

CO v ACJS - Mothers relocation to Aus allowed, with the court ordering cost of airfares to be shared equally with both parents BvB - For young children, skyping etc doesn’t amount to a good connection Figgs v Figgs - Young children, judge said short absences were optimal, important not to disrupt - A child aged 4 would find it difficult to be separated from a significant attachment figure such as a father for a week, and crucial attachment figure such as mother for more than a few days ARR v SAD - Particular risk for children ages 6months – 2 years, can involve breaking critical attachment relationships - To relocate a new contact arrangement, allowing substantial contact would need to be created AT v JD - If father has shown little to no contact with the child, then relocation is likely to be granted without concern for the father’s connection JDA v VMF - Father convicted of sexual offences against mother’s daughter from a different relationship - Had supervised contact only with his daughter - Mothers relocation allowed Stanley v Collins - Mother previously abused by father who had mental health issues - Court had little concern for allowing relocation Loss of relationship with wider family: EvB (a) Declined relocation because court was concerned about the loss of relationship with sister who would be li...