FG v OL [2019] NZFC 9088

Published 11 October 2021

Application for discharge of orders — doctrine of issue estoppel — concessions of domestic abuse — children in need of care and protection — family violence — standard of proof — Care of Children Act 2004 — Oranga Tamariki Act 1989, ss 4, 14, 67, 78, 101, 110, 121, 125, 128 & 197 — C v Chief Executive of Department of Child, Youth and Family Services [2003] NZFLR 643 — Chief Executive of the Ministry of Social Development v LA [2016] NZFC 1640 — Housing Corporation of New Zealand v Maori Trustee (No 2) [1988] 2 NZLR 708 — Re B (Minors) (Care Proceedings: Issue Estoppel [1997] All ER 117 (High Court) Fam D, Hale J. The applicants were the grandparents of four children, who had previously been the subject of a declaration that they were in need of care and protection. Along with the declaration, orders were also made placing the children in the care of the Chief Executive of Oranga Tamariki. This decision was made after a Family Group Conference (FGC) where it was accepted that the grandparents had physically abused the children. The respondents were the children's parents and they did not take part in the hearing. The grandparents had applied for a discharge of the orders, seeking to have the children placed back in their care. They argued that they had not been violent towards the children and did not challenge these facts at the Family Group Conference or after as they believed the children would be placed with their father, so it did not matter. Oranga Tamariki argued the application was barred by the common law doctrine of issue estoppel. The grandparents had accepted the abuse set out at the FGC, and the Ministry and the Courts had relied on this to make determinations about the children. The grandparents had accepted the allegations, they were accepted by the Court on the balance of probabilities and were proven, which prevented the grandparents from then going back and challenging them. The grandparents argued the allegations of violence were untrue and that as they had not participated in the hearing where the declaration and orders were made, they should have a chance to defend the allegations. The Judge had to determine whether the doctrine of issue estoppel applied to allegations relied on by Oranga Tamariki to make declarations that children are in need of care and protection. The Judge considered case law as well as relevant New Zealand legislation and determined that each case must be decided on its own facts in order to meet the welfare and best interests of the child. There were circumstances were estoppel would prevent parties from challenging allegations, and other fact scenarios where parties would not be estopped from doing so. In this case, the Judge found that the grandparents were estopped from challenging the allegations. First, there is public interest to an end to litigation, people require certainty and should not waste the time and resources of the courts. Second, the grandparents were aware of the details of the allegations and accepted them. The social workers proceeded on this acceptance. Re-opening the case would not be in the welfare and best interests of the children, as they would be required to give evidence and be re-examined. It was also unlikely that a re-hearing would result in a different outcome. Any application made by the grandparents would have to proceed on the basis that the allegations they had abused the children were true. Judgment Date: 15 November 2019. * * * Note: names have been changed to comply with legal requirements. * * *