Background

Under section 27 of the Care of Children Act 2004, any person (such as a member of the family or whanāu) may apply to be an additional guardian, on terms which may be for a purpose, but always on a basis which would not undermine the children’s natural guardians. In this case an eleven year old boy and nine and a half year old girl, children to Ms Gordon and Mr Jacobs (names anonymised) were the subject of an unusual proceeding. This was in the context of seven years of related Family Court litigation.

Ms Peeling (not her actual name), an older half-sister to Ms Gordon, applied to be an additional guardian for the express purpose of ensuring her niece Louise and nephew Wesley remained in touch with their Samoan culture.

Ms Peeling had:

previously made an unsubstantiated allegation of sexual abuse against Mr Jacobs;
upset the children by taking them to a cemetery in 2020;
caused a safety plan to be enacted after making a threat to uplift the children from their school; and
made several unwanted, harassing efforts to phone and text the parents to gain contact with the children.

There was an existing lawyer for the children, Ms Green, who:^[1]

did not bring their aunt’s application to the children’s attention. She considered doing so may constitute a form of systemic abuse of them and noted her concern about them knowing another family member was now engaging in Family Court litigation about them.

Present Matters

Rule 193 of the Family Court Rules 2002 enables a Judge to strike out all or part of an application for any of the following reasons:

(a) no reasonable basis disclosed for the application;

(b) the application is likely to cause prejudice, embarrassment, or a delay in proceedings; or

(c) the application is otherwise an abuse of the court’s process.

Judge Morrison sought submissions on whether to strike out the application under Rule 193(c) given the history of internecine applications Ms Peeling had made, all of which were contrary to the children’s best interests and welfare.

Ms Gordon’s position was succinctly captured in her affidavit:^[2] Essentially, she does not consider Ms [Peeling]’s appointment necessary given she is herself exploring her Samoan culture; her mother, the children’s Samoan grandmother, has contact with them daily; and the children do not have an established and ongoing relationship with Ms [Peeling]. The children’s father was also opposed. He was proudly part-Samoan and submitted it would be unsafe for the children to have contact with Ms Peeling and that they had a settled and consistent new routine.^[3] At the hearing of the matter, the Judge reserved her decision but later gave written reasons for exercising her discretion to strike out the application in full. Judge Morrison held that: [22] I agree with Ms Green that a s 27 application must show a demonstrable benefit to [Louise] and [Wesley]. Any orders made about them must be in their best interests and welfare. [Louise] and [Wesley] are at the centre of decision making in the Family Court, not the adults. [23] Any additional guardian appointed for the children needs to be able to co-operate and consult with existing guardians. I fail to see how Ms [Peeling] can do this. She has a tentative relationship with Ms [Gordon]. She has a seemingly hostile relationship with Mr [Jacobs]. Her appointment as an additional guardian stands to bring more conflict into the children’s lives as a result. The application was struck out as ill-conceived.

The FDR Centre

Under the Family Dispute Resolution Act 2013 and section 46E of the Care of Children Act 2004, an application may not proceed on notice without a section 12 certificate under the Family Dispute Resolution Act 2013. This means that mediation must be attempted first, or deemed unsuitable. The FDR Centre has been delivering specialist, fully administered, end-to-end family dispute resolution services for over two decades, and is a preferred supplier of FDR Mediation for the Ministry of Justice. We offer a safe and supportive setting to have conversations about important age-related and inter-generational relationship issues, and engage in future planning.

While mediation would have been unsuitable in this case, it is worth noting that in less problematic fact scenarios, third party involvement is possible in family mediations at the FDR Centre to resolve guardianship issues. The FDR Centre as an approved provider may be able to assist.

Conclusion

The guiding light for the children’s best interests and welfare remains sections 4 and 5 of the Care of Children Act 2004 subject to consideration of the children’s views at section 6.

The FDR Centre has several methods to ensure that the child’s best interests are served, including the provision of the Voice of the Child. There are alternatives to court; and the flexibility, privacy and less adversarial nature of family dispute resolution at the FDR Centre could be right for you and your family.

References

[1] Peeling v Gordon [2023] NZFC 2857 at [21].

[2] At [14].

[3] At [17].

FDR Centre FLA90 Arbitration Rules

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