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Family Relocation Exam.docx

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Mark Henaghan

RELOCATION MY ANSWER MUST: (1) Clearly identify what principles in s4, 5, and 6 COCA are relevant to the facts (2) Apply the principles and relevant cases and come to clear conclusions (3) Apply the principles in s16 COCA to the facts Parenting Orders 1. Who can apply for a parenting order (s47 COCA) Group that can apply as a right under s47 (eligible people):  Parents  Guardian including those appoint  Partner of parent who plays an active role in the child’s life Can apply for a parenting order with leave (no automatic rights)  Member of the child’s family  Whanau  Other culturally recognised group  Any other person 2. What does a parenting order do (s48 COCA)  Determining when a person has day-to-day care of the child and whether this is shared  Determining when a person has contact with the child - Nature of the contact (direct or indirect) - Duration and timing of that contact - Arrangements that are necessary to facilitate that contact  Can be a final or interim order  May be subject to any terms and conditions the court determines  Subject to s50-52 and 60 Principles Section 4: overriding principle of welfare and best interests of the child are first and paramount. (1) Welfare and best interests of child must be first and paramount consideration. (2) Welfare and best interests of particular child in his particular circumstances must be considered.  Immediate and long term needs (3) A parent’s conduct may be considered only to extent that it is relevant to child’s welfare and best interests (4) No presumption of motherhood or fatherhood being better for child (5) In determining welfare and best interests of child must consider (a) that decisions should be made and implemented within the child’s time frame (b) and of the s 5 principles that are relevant (6) (5) doesn’t limit (6) children’s views or other matters being taken account of D v S: This principle is consistent with UNCRC 12. All aspects of their welfare must be taken into account – physical, mental, emotional, as well as development of the child’s behaviour consistent with what society expects. It is a predictive assessment – a decision about the future. Section 5: Principles relevant to welfare and best interests: ***Not exhaustive (a) Child’s parents and guardians should have primary responsibility, and should be encouraged to agree to own agreements on childs care, development, and upbringing (b) There should be continuity in arrangements, and child’s rships with family etc should be stable (in particular, child should have continuing rships with both parents) (c) Care for child should be facilitated as parents and guardians should have ongoing consultation and co-operation (d) Relationships between child and members of family or iwi should be preserved and strengthened, and they should be encouraged to participate in childs care and upbringing (e) Child’s safety must be protected, in particular from all forms of violence (f) child’s identity (including, without limitation, culture, language, and religious denomination and practice) should be preserved and strengthened Section 6: Children’s views (1) In proceedings involving guardianship, d2d care and contact (2) (a) child must be given reasonable opportunities to express views on matters affecting them, AND (b) any views child expresses (directly or through representative) must be taken into account. Section 16: Exercise of guardianship (1) The duties/powers/responsibilities of guardian include (w/o limitation) (a) having role of providing d2d care, (b) contributing to the child’s intellectual, emotional, physical, social, cultural, and other personal development; and (c) determining for or with child, or helping child determine, questions about important matters affecting them (2) Important matters affecting child include (w/o limitation) (a) child’s name, (b) changes to residence, including travel, that may affect relationship with his/her parents, (c) medical treatment for child (if not routine in nature), (d) education and (e) child’s culture, language, religion. ... (5) In exercising duties/powers/rights etc. of guardianship, guardians must act jointly (in particular by way of consulting wherever practicable with aim of securing agreement) with any other guardians of child. Other important provisions  Section 7: Court may appoint lawyer to act for child  Section 133: Court can call in expert witnesses (assumption of neutrality) cultural, medical, psychiatric, psychological to make reports  Section 132: Can call for social worker report  Section 136: Can ask pre-hearing for judge to hear person speak on child’s cultural background APPROACH:  Relocation determined as a guardianship matter, ss4 and 5 thus of key relevance (confirmed in Kacem).  16(2)(b) where child lives is important matter thus parents to consult 16(5).  44: parents can ask for direction from the Court  48(5): Court can place condition on parenting order as to where child lives. Kacim v Bashir 2010 SC – LEADING CASE  Paramount consideration re relocation decisions is welfare and best interest (4) – no presumption as to what the best interests of the children are  Must be done on a case-by-case basis because every relocation decision depends on the particular child in their particular circumstances.  MAJ (Blanchard, Tipping and McGrath JJ) said CA was wrong to say there was some priority of weighting as between the various principles (i.e. must (s5(e)) and in particular s5b) and that those statements had lead to a sense that the principle in 5b with the particular emphasis on the importance of the relationship with both parents had lead to a starting point of a presumption against relocation.  The MAJ conceded that on applying the law to the facts in the case there was no suggestion that the CA applied s5b in a presumptive manner.  The SC agreed with the overall assessment of the CA that the factors that favoured relocation, the mothers wishes, and the possibility of parental conflict were outweighed by the need for the children to have a meaningful relationship with both parents  Very little emphasis placed on the children’s views even though s6 requires the court to taken them into account  Culture was neutral – see BP v D-GSW for discussion on that. Weight Given to each principle Stadniczenko: ‚Different judges will weight and balance these factors differently‛ D v S: similar facts can give rise to different outcomes as it is hard for judges to put aside their own emotions and views etc. Principles (a) and (b): s5(a) COCA: Childs’ parents/guardians should have primary responsibility and be encouraged to agree on arrangements for care and upbringing s5(b) COCA: there should be continuity in arrangements, and child’s relationships with family etc should be stable (in particular, child should have continuing relationships with both parents)  Kacem: SC said At the highest level of generality the competition in a relocation case is likely to be between declining the application for relocation because the children’s interests are best served by promoting stability, continuity, and preservation of certain relationships as against allowing it on the ground that the interests of the children are likely better served. = (b) does not elevate this principle above others. Continuity of arrangement versus continuity of environment A v A (1978) NZLR:  Mother = 16, Father = 18 living in Palmerston North; father left to Otago to study Law mother came with him.  Mother returned to North Island and left the two children with him  Father formed a relationship with X and were bringing up the two children (6,8) for two years – mother consented to this  Father had marijuana plants growing in his flat (over 1000 plants) found guilty of cultivating marijuana AND sentenced to 18 months jail for drug possession. Children were left with X (who arranged for them to visit mother) children happy.  Mother wanted the children (new fiancé and settled) HC HELD:  Unfair to punish children for their fathers mistake.  HC put most the weight on continuity – familiarity of face and place = stability and continuity it IMPORTANT. Must look from perspective of seven year old, most important things are school, family, friends, neighbourhood.  Natural parents do not have a presumptive right – focus is what is best for the children  Children to stay in Dunedin with Mrs X because they were doing well, thriving and moving would be detrimental. IMP = Mrs X NOT trying to cut the mother out. Principle (c) s5(c) COCA: Childs’ care should be facilitated by consultation and co-operation between parents and all other primary carers of the child  Better chance of cooperation and consultation if the children stay  Kacem: conflict between the parents would ease over time  Parent applying to relocate should have a plan as to how the relationship with the other parent will be preserved = shows cooperation. Principle (d): s5(d) COCA: Relationships between child and his/her family/whanau should be preserved and strengthened – encouraged to participate in the care/upbringing  Moving overseas would give a chance to know extended family but may result in losing links in NZ  Possibly a neutral issue – will count in favour of parent who is more prepared to encourage relationships with the otherside Principle (e): s5(e) COCA: Childs’ safety MUST be protected  Physical and psychological = battle between (d) and (e) – psychological safety  Safety trumps relationships – child MUST be protected from ALL forms of VIOLENCE  Principle used to move away from shared care  If children are likely to be harmed this principle will most likely override the others because of the statutory wording Principle (f): s5(f) COCA: Child’s identity (culture, language, religion) should be preserved and strengthened  Guardianship obligation to preserve culture (16). The best outcome for the child may be to be brought up in a bicultural way no one culture should be given priority over the other Whittle v Fagavao [1990] NZFLR 305 (CM 48)  Ricky (3.5 years old) had been in the care of Mrs F since birth (friend of natural mothers – effectively a foster parent). Natural father applied in 1987 – child to be with whanau – argued R needed to be immersed in paternal whanau to fully develop as a human being.  R’s POV: all he knows is that F has been the carer and effectively she is the psychological parent HELD:  Too much emotional stress to remove him – continuity is important. BUT important to keep links with parents (Mrs F was unable to move to Northland). Stayed with Mrs F  R not concerned at this stage with blood ties and opportunities to be immersed in family culture PRINCIPLE FOCUS at the moment is Mrs F and family and developing these emotional ties R v R (1990) 6 FRNZ 232 (NZHC):  1988: Custody to mother to live in Australia with young girl (one year old) argued she felt safer bringing the child up in Aus because father had displayed some violence toward the child.  Father appealed it to the HC – wanted joint custody. Based his argument on Article 2 of the Treaty – taonga – absolute right to the child (child is a treasure)  If he won then the mother would have to move back to Invercargill HELD:  Treaty was between Crown and Maori not citizens; court is only bound by what is best for the child – not put any weight on the treaty at all  Father let down by letter he sent indicating that he was only applying so he did not have to pay child support = lost the appeal and judge suggested video’s being sent to the father. Powell v Duncan CM 58  Sam living with P’s since 18 months old – his parents had a traumatic partnership (from China)  When Sam was 5, the father killed the mother and himself (this was done at the sisters place)  1993: Interim custody (day-to-day care) to Powells  The sister of the father felt guilty so she applied with her husband in June 1995 for custody (day-to-day care)  Judge O’Donovan – (same as Donovan) more sympathetic to the cultural identity argument than the previous case HELD:  Custody was granted to D’s sister 16 Feb 1996. Race relations conciliator and language expert said he would not be truly Chinese unless lived with Chinese family and learns the language = considerable weight placed on this by the judge.  Child moved from house in Waiheke to house where father killed mother; by the time the case got to the HC he was living with the Duncans. APPEAL TO HC:  S29 (now 133) reporter said he was at risk and disturbed he is more himself with the Powells and scared and nervous because he is now living where he saw his mother get killed. S said ‚my heart bleeds like her head‛  Expert (not in child development) for the Duncans said he was upset by the conflict, needs to know culture for identity and had bonded with D’s (not experts in this either) Crucial Facts  Powells loved Sam = human feeling; motivated by wanting to continue care  Duncans had a lack of human feeling for Sam as a little person and were motivated because they though they were a cause HELD:  DTDC to Powells – no access or contact for 12 months by D’s (so they cannot undermine P’s). BUT older brother Mile Duncan was allowed to visit the P’s  Access to Mothers brother will be arranged.  Judge influenced by the cultural expert and personality characteristics. Maaka v Field [1996] NZFLR 172  Bi-cultural household – Father Maori, Mother European. Children 7 and 5.  Father had day-to-day care, regular contact with mother, made under s13 by consent. This arrangement was working well – both parents influenced their lives  Father wanted to move children to tribal homeland of Te Arawa in Rotorua. Ngati Pikao – total immersion in Tikanga Maori. Mother concerned she would not have contact with the children anymore  S29A Guardianship Act (s133COCA) the children were regarded as ‚outstanding, intelligent‛ and close contact with both parents is of ‚vital‛ importance  Mother – it will put their dual ancestry out of balance – fathers whanau may alienate children from mother HELD: Application denied it was not in the children’s welfare to undermine the bond with the mother. Children are a product of both ancestries. Re T [2000] NZFLR 594  Maori Child ‘T’ had been placed by a Maori parent with Australian Couple to adopt (brother had been adopted by friends of their and that was working).  CYPTF Department object to the adoption: inappropriate for Maori children (indigenous to NZ) to be going to Australia  Cultural report – Australians – preposterous  But once they met the people – Wairua touched by wairua of these people.  T (older brother) is blessed – ‚mana enhancing‛  Strong links with Maori community in Sydney and strong commitment to Maori culture and child’s whanau  Open to having an open adoption, etc. they were not going to remove the child from its culture but enhancing the culture HELD: Child had bonded to the Australian couple thus placed with them. Because of all these factors and shared love continuity wins and culture not sacrificed. BP v D-GSW [1997] CM51 **IMP  Daughter had 4 children to a violent partner (in jail for violence) and got pregnant to another man while her partner was in prison. She was terrified to keep this child – old partner would not want her back. Decided to adopt the child out.  6 August 1996: consent signed for adoption – Ngati Kahungunu Tainui, not the same iwi, hapu or whanau as the mother but she was happy for them to adopt  5 August: ex parte application by grandmother – saying that she wanted the child in her care, she wanted it in her whanau  7 August: Halt on the adoption and by agreement placed the child in temporary care (s139 CYPTF) th  Grandmother lost the ex parte application 9 October  11 October: Child placed with adoptive parents  25 October: stay declines, appeal lodged  Adoption adjourned until appeal heard Grandmother did argue important principles in the HC (this principles still exist) 1. The Guardianship Act (replaced by COCA) should be interpreted consistent with the Treaty HC HELD: All acts dealing with children are to be interpreted as coloured by the Treaty – when the child is Māori, Māori values and norms should be used to decide the placement. On this general principle the Grandmother was successful in bringing in the Treaty when a child is involved. 2. Tikanga Maori values were not used for the placement: HC HELD: Adoption Act only requires the consent of the mother for the adoption. Parliament must change this not the Court. Each case must be examined on its merits, whanau is not to be generally given preference nor preferential treatment in consultation. 3. CYPTF ss5, 6 and 13 HC HELD: Children will be kept in their own family wherever possible SUBJECT to the welfare of the child. 4. Mother did not freely consent to adoption: HC HELD: mother was under pressure but she still signed the form with the solicitor present and gave evidence in court. She had good reason for the adoption. 5. Child’s welfare best met by being placed with Grandmother HC HELD: Grandmother might not be the best person to care for the child. OUTCOME:  Grandmother could not prove that she could be a good mother to the children because she had not raised her own four children. Although she did a lot of work for her community and other families she did not look after her own. Concerned the grandmother would care for others instead of the child = not a stable home.  The child had already bonded with the adoptive parents, major disruption to move – CONTINUITY  Two important points that must be emphasized – (1) All those involved have acted out of sincerity and with the Baby’s best interests at heart (grandmother, mother and adoptive parents) (2) The baby should grow up knowing of her whakapapa and knowing her whanau if possible even if she is adopted out of the whanau Kacem:  Crucial fact: meaningful relationship with both parents  Conflict and mothers wishes didn’t outweigh the detrimental effect of loss of contact with dad  Mother could overcome real stress and isolation  Little emphasis on kids views (s6). Welfare of day-to-day parent Stadniczenko v Stadniczenko [1995] NZFLR 493 (CA)  Children (7 and 5) were being ‘birdnested’ in Wellington. She wanted to relocate to Auckland. CA HELD: Two i
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