Gechan v Chief Executive of Oranga Tamariki  NZFC 6738
Published 28 July 2021
Declaration — Family Court guardianship — interim custody order — day-to-day care and
custody — disabled child — discharge of existing order — Oranga
Tamariki Act 1989, ss 5, 6, 13, 14(1)(b), 78, 86, 91, 101, 110, 112, 115, 125, 127, 128, 139 & 141 —
Care of Children Act 2004, ss 4, 5, 31 & 56 — United Nations onvention on the Rights of the
Child, arts 3 & 9 — United Nations Convention on the Rights of Persons with Disabilities, arts
23, 24 & 25 — MEM v SBM and Anor C Rotorua FAM 2001-019-000230, 22 June 2009.
The proceedings concerned a disabled child who had been living and receiving education at a
disability service provider (the school), subject to a s 141 care agreement. The child required
significant professional support as he had several physical and intellectual disabilities. The
child was now in the custody of the Chief Executive of Oranga Tamariki (the respondent) and under
the guardianship of the Family Court, after being uplifted from the school by his father (the
applicant), in breach of the care agreement. The child was then returned to the school under an
interim custody order.
The applicant opposed the child's return to the school and the custody and guardianship orders, and
sought the return of the child to his care. The respondent preferred that the child remain at the
school, expressing concern that if the applicant had custody of the child, the child would not get
proper education and would be isolated from necessary support and treatment. To succeed in his
application, the applicant therefore needed to show that either the custody order had never been
necessary, or that the respondent's care and protection concerns had now been resolved.
The Court found that the respondent had established various concerns about the applicant's care of
the child, including the applicant's failure to follow medical advice, his abusive or dismissive
communications with care professionals, and his uplifting of the child from the school in breach of
the care agreement. Although the applicant put forth options for the care and custody of the child
and denied that there had ever been any need for a custody order, the Court found that there was
still a risk that the child's care and protection needs would not be met in the care of the
applicant. The applicant had been unable to provide the Court with a clear and detailed plan for
the child's care, and would likely have trouble engaging properly with support workers and
agencies. Further, he had a history of reneging on agreements relating to the care of the child. By
contrast, the Court was satisfied that the school was well able to meet the child's needs. The
application to dismiss the custody order was dismissed. The Court also ordered that the respondent
be appointed as sole guardian to make decisions about the child's medical treatment.