Nikau v Tatchell  NZFC 1239
Published 28 March 2018
Day-to-day care — effect of court findings that no abuse occurred on Oranga Tamariki records — matua whāngai — meaning of parent under COCA, s 5 — Parenting orders — relocation — relocation without lawful basis —shared parenting — significance of Māori culture and involvement of whānau — weighting of relevant principles in Children Act 2004, s 5 — welfare and best interests of a child — whether allegations of abuse proven — B v Department of Social Welfare (1998) 16 FRNZ 522 (CA) — Barton-Prescott v Director-General of Social Welfare  3 NZLR 179 (HC) — New Zealand Māori Council v Attorney-General  1 NZLR 641 — T v Chief Executive of the Department of Child Youth and Family Services  NZFLR 143 (HC) — Care of Children Act 2004, ss 4 & 5 — Family Court Rules 2002, r 416U — Domestic Violence Act 1995 -— Oranga Tamariki Act 1989, s 78 — United Nations Convention on the Rights of the Child.
In this reserved judgment concerning applications and cross-application for the grant of parenting orders, the judge was required to consider the welfare and best interests of the child — taking into account that the child is in a unique family environment.
Factual matters required to be taken into account included that prior to birth the child's biological parents had agreed that the child would be raised by the respondents in accordance with traditional mātua whānga practices; the biological parents also having ongoing contact and are deeply involved in the child's life and upbringing. The arrangements broke down when the biological mother changed her mind some months after the birth, resulting in divisions within the whanau. The child's first four years were spent in the primary care of the whāngai parents after which a shared-care arrangement was entered into.
Multiple unsubstantiated allegations of physical and abuse and notifications of disclosures to Oranga Tamariki, made or driven by the biological mother were found to be unsubstantiated. In 2016, following another notification of abuse and evidential interview, the child was relocated and placed into the care of her biological grandparents by Oranga Tamariki. No provision for contact with either set of parents was made. Shortly after allowance was made for the biological parents to resume contact, the biological mother and siblings moved to a location closer to the grandparents, the father later finding employment in the area and also relocating.
Following advice during submissions that the grandparents no longer wished to pursue their application for Parenting orders, the issues remaining for the Court included — whether the child should be in day-today care of: the biological mother only; both biological parents; the whāngai parents; or whether there should be shared care between all four adults; and whether an order appointing the whāngai parents as additional guardians should be made.
The court noted that the paramount consideration was the welfare and best interests of the child taking into account her unique family environment. Although all principles in s 5 of COCA were found to be relevant and discussed in detail, particular weighting was given to ss 5 (e) and (f).
The issues of abuse and risk to both the child and the biological mother were discussed in depth. The court took into account the history of prior unsubstantiated allegations, concerns around the reliability of disclosures made by the child and the biological mother's influence in notifications and found that there was no risk to the child in the care of the whāngai parents having determined that neither had ever abused the child.
The court noted the implications for the child and proceedings by the actions taken by Oranga Tamariki in placing the child with the grandparents and removing contact with both sets of parents despite the existence of a Parenting Order providing for shared care and Oranga Tamiki having no lawful status in relation to the child. The court noted that Oranga Tamariki unlawfully ignored an order made by Court. Concern was expressed that despite a finding being made in Court that no abuse had occurred the allegations would remain on the file with Oranga Tamiriki, noting that it is recognised that children can make disclosures that are "fundamentally untrue and devoid of any basis in reality". Noting further that it is inexcusable that where a finding of fact is made by a court, the executive arm off Government ignores the finding and unjustifiably refuses to update their database.
The Judge acknowledged that the child was bicultural but noted that there are aspects of Maori culture that need to taught through living and breathing the culture. It was also acknowledged that the child's return to the whāngai parent's location would have a detrimental effect on the biological parents financially. Concern relating to the biological mother's ability to accept the whāngai parents part in the child's life if the biological parents were granted day-to-day care in their current location were expressed, noting that the child was clearly securely attached to all four parents and attempts by the biological mother to expunge the whāngai parents from the childs life would be contrary to the child's interests. In considering granting shared care in the original location, concerns regarding the exposure of the child to further conflict and the biological mother's reluctance to return to an environment she did not feel safe in was a significant factor.
The stability of the relationship between the biological parents and the view of the child that they wished to maintain relationships with all four parents was considered when determining the options for the child's care. The Judge determining that living in the original location would give the best chance to strengthen and preserve whanau connections and Maori identity and that returning the child to the shared care of her birth and whāngai parents in the original location was in the best interests of this child. The Judge further noted that if unsubstantiated allegations continue to be made against the whāngai mother by the biological mother, the court may be required to place the the child in the sole care of the whāngai parents.
Orders were made for shared care of all four parents, on the condition that the biological parents return to their original location, if not then the child is to be in the day-to-day care of the whāngai parents in the original location with weekend, holiday and agreed care by the biological parents. The whāngai parents were appointed additional guardians of the child and a referral for counselling for the four parents made.
Judgment Date: 9 March 2018.
* * * Note: Names have been changed to comply with legal requirements * * *