CAVANAGH v CAVANAGH [2017] NZHC 1546 [6 July 2017]

ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING

PARTICULARS OF PARTIES. ORDER PROHIBITING SEARCH,

COPYING OR INSPECTION OF THE COURT FILES IN RESPECT OF

WHICH THIS JUDGMENT HAS BEEN GIVEN WITHOUT LEAVE OF A

JUDGE ON AN APPLICATION MADE ON NOTICE TO ALL PARTIES.

THIS IS AN ANONYMISED VERSION OF A JUDGMENT AND MAY BE

PUBLISHED IN THIS FORM.

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

CIV-2017-404-000130

[2017] NZHC 1546

BETWEEN

ANNETTE LISA CAVANAGH

Appellant

AND

ROBERT JOHN CAVANAGH

Respondent

Hearing:

10 May 2017

Appearances:

G Cole for the Appellant

C Armstrong for the Respondent

G Askelund as Lawyer for the Child

Judgment:

6 July 2017

JUDGMENT OF HINTON J

This judgment was delivered by me on 6 July 2017 at 11.30 am

pursuant to Rule 11.5 of the High Court Rules

……………………………………………………………………

Registrar/Deputy Registrar

Counsel/Solicitors:

Gina Cole, Barrister, Auckland

Christine Armstrong, Barrister, North Shore City

Graeme Askelund, Barrister, Auckland

[1] This case is about which school seven-year-old Olivia1 should attend. Her

parents cannot agree. In September 2016, Olivia’s father applied to the Family Court

for directions on this issue under s 46R of the Care of Children Act 2004 (COCA).

Olivia’s mother now appeals to this court.

[2] The distinguishing feature of this case is that it involves a choice between

“mainstream” schools and Kura Kaupapa Māori (Māori-language immersion)

schools. This important issue engages s 5(f) of the COCA, and s 20 of the

New Zealand Bill of Rights Act 1990 (NZBORA).

[3] There are three schools to consider on appeal: Te Kura Kaupapa Māori o

Te K (Te K), St P School (St P) and NC School (NC). Te K is a Māori-language

immersion school. St P is a Catholic, state-integrated mainstream school. NC has

three units: mainstream, full immersion and bilingual. In the Family Court, only the

first two schools were considered.

[4] This is unfortunately yet another COCA appeal that is not an appeal, in effect.

Circumstances have changed materially since the Family Court judgment. I did

suggest to counsel that the matter should be referred back to the very experienced

Family Court Judge who heard the evidence and who sits in a Court which

specialises in COCA matters. All counsel were clear they wished me to decide the

case, rather than face the delay of a referral back.

Background

[5] Ms and Mr Cavanagh are Olivia’s parents. Olivia was born in December

2009. Her parents had been together since 1999. They married in 2001 and

separated in January 2010, very shortly after Olivia’s birth. Olivia has two older

brothers: Daniel, born in 1998, and Jamie, born in November 2001. Daniel is

Ms Cavanagh’s son from a previous relationship. Mr Cavanagh adopted him in

2001.

[6] Ms Cavanagh is Māori, I understand of Tainui and Ngāpuhi descent.

Mr Cavanagh is Pākehā. In one of Ms Cavanagh’s affidavits in the Family Court,

1 The names in this judgment have now been anonymised.

she says she grew up in a strong Māori environment and around marae, and has a

deep understanding of tikanga and kaupapa through her grandmother, who was

instrumental in the te reo movement in the 1970s. Mr Cavanagh’s view is that,

during their relationship, Ms Cavanagh did not prioritise her cultural heritage.

[7] Olivia is now fluent in te reo. Ms Cavanagh speaks some te reo, but is not

fluent. Mr Cavanagh does not speak te reo, but he is supportive of the development

of Olivia’s taha Māori (Māori identity).

[8] In the early days following the January 2010 separation, care and

guardianship issues were determined by agreement between Mr and Ms Cavanagh.

They agreed to a week-about shared care arrangement in respect of the

three children.

[9] Also by agreement between them, Olivia attended kōhanga reo (Māori

language early childhood education) for four years, from the ages of one to five.

[10] Some time after the separation, the relationship between Olivia’s parents

deteriorated further.

[11] During 2014, Ms Cavanagh and Mr Cavanagh both looked at a large number

of schools for Olivia to attend the following year. These came down to two options:

Te K, in Rānui, West Auckland, and St M School (St M), a Catholic girls’ school on

the North Shore, already attended by two of Olivia’s cousins. Both parents attended

an open day at Te K. Mr Cavanagh says that, immediately after leaving, he said that

Te K seemed nice, but he disagreed with Olivia’s going to a full immersion te reo

school. The parents had jointly signed an enrolment form for St M. Ms Cavanagh

said that a joint enrolment form had also been signed for Te K, but it was not located.

Mr Cavanagh disagreed there was any such enrolment form. He said he understood

Olivia was going to St M.

[12] On the evening before school commenced, Olivia was in her mother’s care

when her mother advised Mr Cavanagh that Olivia was starting at Te K.

Mr Cavanagh’s evidence was that he was in despair, but considered it would be

harmful to Olivia to challenge the enrolment. Ms Cavanagh said she believed that

Mr Cavanagh had left the decision about choice of schools to her and she had settled

on Te K. Judge Fleming found that Mr Cavanagh “certainly did believe Olivia was

going to St M”.2 She also recorded that in any event, at the least, Ms Cavanagh

accepted that she knew full well, on Olivia’s first day in February 2015, that

Mr Cavanagh did not want Olivia to attend Te K. I see no basis on which I could

disturb either of those findings, nor was there any express appeal to that effect.

[13] Mr Cavanagh did not attend the pōwhiri at Te K. Ms Cavanagh dropped

Olivia off and picked her up from school for the first few months, if not longer.

[14] Tensions continued to escalate between Ms and Mr Cavanagh after Olivia’s

enrolment at Te K. On 7 May 2015, Ms Cavanagh applied for, and obtained, an

interim parenting order granting her the day-to-day care of Jamie and Olivia,

reserving to Mr Cavanagh supervised contact, by a person approved by the Court.

Ms Cavanagh also applied for a protection order on a without notice basis, alleging

that Mr Cavanagh had used verbal and physical violence against her and the

children, and that the children were at risk in his care. The application was declined.

[15] In his affidavits responding to Ms Cavanagh’s application for a parenting

order, Mr Cavanagh raised his concerns over her unilateral schooling arrangements

for Olivia. Those allegations were noted by Judge Burns in a preparatory ruling

made in advance of the defended hearing of Ms Cavanagh’s applications. The Judge

expressed concern about the lack of consultation.3

[16] On 30 October 2015, partway through a defended hearing, Ms Cavanagh

agreed to withdraw her parenting application and agreed that they would return to

sharing Olivia’s day-to-day care equally on a week-about basis. The Family Court

made a final parenting order by consent.4

[17] Mr Cavanagh remained opposed to the full immersion schooling. He said he

felt marginalised at Te K and unable to be involved in his daughter’s education. This

2 [citation redacted].

3 [citation redacted].

4 [citation redacted].

related in particular to the fact the whole school experience was in te reo. He was

also concerned about Olivia’s academic achievement and that the school did not fall

under the National Standards, which he had wanted for Olivia.

The application and response

[18] On 23 September 2016, Mr Cavanagh filed the application under s 46R of the

COCA, seeking a guardianship direction to change Olivia’s school.

[19] Mr Cavanagh says the dispute over care of the children and domestic

violence allegations prevented him from contesting the change of schooling earlier.

I note that the earlier proceeding seems to have been resolved by November 2015,

although I accept there may well have been ongoing issues, given the nature of the

proceeding, and Mr Cavanagh would have been reluctant to engage again with the

Court process.

[20] In the application, Mr Cavanagh sought that Olivia attend St M. Some

months later he put forward St P as an alternative. His application recorded that he

was not fixated on a Catholic school, but wanted a school that promoted

National Standards, and in which, as he put it, both parents could participate.

[21] On 26 September 2016, Ms Cavanagh filed an affidavit in response to

Mr Cavanagh’s application. She sought to retain the status quo and for Olivia to

remain at Te K until Year 13. She did not raise any other schooling options.

Ms Cavanagh spelt out that Olivia loved it at Te K and the many advantages of the

school, which I discuss later.

The Family Court judgments and Ms Cavanagh’s bilingual schools proposal

[22] Due to the developments that had occurred in this matter by the time it came

before this Court, the substance of the Family Court judgments is of lesser relevance.

Nevertheless, I summarise the series of decisions leading to this appeal below.

The 26 January Judgment

[23] On Thursday 26 January 2017, at the defended hearing of the s 46R

application, Judge Fleming was asked to make an immediate decision as the school

year began the next Monday.

[24] At the end of that day, the Judge delivered an oral judgment, finding that it

was in Olivia’s best interests to be enrolled in a “non-immersion mainstream school

for 2017 and thereafter”, but said she needed further submissions as to how to

determine which school.5 The 26 January interim judgment does not record which

mainstream schools the Family Court Judge had been weighing up that day, but it

appears she was going to make a direction that Olivia attend one of three schools:

RR Primary, M Primary or St P.6 The Judge directed that the case be listed again on

Friday 27 January 2017, to allow the parties to give some consideration as to which

would be the best school for Olivia to attend.

The 27 January Minute

[25] On the morning of 27 January 2017, Ms Cole, counsel for Ms Cavanagh,

proposed two further schools that had bilingual and immersion units: NC and RB

School. Both schools had that day provided letters stating they were able to offer

Olivia a place in both their full immersion and bilingual units.

[26] As it is important to this appeal, I record that in Ms Cole’s memorandum

dated 27 January 2017, which advanced the two bilingual schools, she had this to say

with regard to NC:

5 [citation redacted].

6 The Judge said that the third option of St P had come out of some additional submissions that

Olivia’s lawyer had made at the conclusion of the hearing. I have noted it was also raised in an

earlier affidavit of Mr Cavanagh.

(a) [Ms Cavanagh] has made contact with the enrolments and interview

team at the school, and sent in Olivia’s certificates, school reports,

audio speech in Te Reo, and other supporting documents to aid in a

speedy enrolment. It is understood that Olivia is a prime candidate for

acceptance into the school as an out of zone student as she is a fluent

speaker of Te Reo Māori;

(b) NC School students are in the high 85% bracket of students at or

above National Standards;

(c) The school has a full immersion Māori unit, Bilingual Māori Unit, and

Mainstream all under the National Standards;

(d) The school is new to [Mr C] and [Ms C], a fresh start;

(e) The school focuses on English along with Māori language;

(f) Olivia will transition more easily from full immersion to mainstream

within the Māori/Bilingual Unit at the school;

(g) The roll is reasonably small at 270 students with 51% girls, which will

also make transition easier for Olivia;

(h) All notices are in Māori and English;

(i) The school demographics represent both Olivia’s ethnicities of Māori

and Pākehā;

(j) The school embraces bicultural parents and values;

(k) The school has an excellent reputation and ERO report;

(l) The school will support Olivia’s transition from Kura Kaupapa into

mainstream as it has expertise in Te Reo, and Māoritanga, and

National Standards.

[27] Mr Cavanagh and Mr Askelund both opposed the new proposal on the basis

they had no opportunity to consider it.

[28] The Judge issued a minute stating it was very important to note that

Ms Cavanagh had known of the application for some months, and had not previously

put forward any other options. Her position at the hearing had been that she was not

prepared to consider any option other than Te K. The Judge said the reason for

adjourning after the first judgment was to give Mr and Ms Cavanagh an opportunity

to reach a consensus on the three schools already in the pool.

[29] Judge Fleming said she would not entertain submissions on NC and RB

School on the basis that, first, Mr Cavanagh had not had an opportunity to consider

the suitability of the two schools (or whether bilingual teaching would be suitable for

Olivia in future) and, second, that she had no evidence about either of the schools.7

She said it was not appropriate to defer the decision as Olivia was due to start school

the next week-day.

The 27 January Judgment

[30] Later on Friday 27 January, the Judge decided, in a second oral judgment in

two days, that Olivia should attend St P, being the school with the highest academic

achievement of the three mainstream schools she was considering, and because it

involved the least travel for Olivia.8

This appeal

[31] This appeal is against the three decisions of the Family Court: the 26 January

2017 judgment, the 27 January 2017 Minute (declining to consider Ms Cavanagh’s

two new proposals) and the 27 January 2017 judgment. Leave to appeal has already

been granted, which was necessary because the decisions were under s 46R.

[32] The appeal is brought pursuant to s 143 of the COCA. An appeal under s 143

is a general appeal that is governed by the principles set out by the Supreme Court in

Austin, Nichols & Co Inc v Stitchting Lodestar.9 Essentially, the appellate court is

required to make its own assessment of the merits of the case. I am able to make any

decision I consider should have been made by the Family Court.10

[33] I therefore need to make my own decision, having due, but not undue, regard

to the fact that the Family Court Judge heard the evidence, and to the clear expertise

of that Court in COCA matters. Nothing much turns on this in any event because, as

I say, the case is materially different to the case in the Family Court. That is due to

two material developments.

7 [citation redacted].

8 [citation redacted].

9 Austin, Nichols & Co Inc v Stitchting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.

10 High Court Rules 2016, r 20.19.

[34] The first material development is that Olivia’s lawyer, Mr Askelund, now

wishes the Court to consider NC, one of the bilingual schools proposed by

Ms Cavanagh in January. He raised this on 8 May 2017, just two days before this

hearing. Mr Askelund sought, retrospectively, to frame Judge Fleming’s declining to

consider the bilingual option as an “error”, because it deprived Olivia of the

opportunity to continue her schooling in a bilingual unit (within the National

Standards framework). Mr Askelund acknowledged the severe restraints under

which the Judge was operating and the fact she had little choice at the time.

Mr Askelund had obtained verbal confirmation from the Principal at NC that, as at

2 May 2017, placements remained for Olivia in both Te Whānau Rumaki o Te Uru

Karaka (the full immersion unit) and Te Whānau Awahou o Te Uru Karaka (the

bilingual unit).

[35] Mr Cavanagh’s position, recorded by his counsel Ms Armstrong on 9 May

2017, was that while St P was still his preference, he would compromise and agree to

Olivia’s starting immediately in the NC bilingual unit. The letter from

Ms Armstrong records that this would enable both parties to be involved, and end

conflict for Olivia.

[36] At the outset of this hearing on 10 May, Ms Cole advised that Ms Cavanagh

no longer supports NC. Ms Cole said that Ms Cavanagh raised the two bilingual

schools on 27 January 2017 out of desperation because of the 26 January judgment

(that Olivia attend a mainstream school), and because Ms Cavanagh was trying to

find a compromise. She said Ms Cavanagh has since researched these schools and

no longer supports the concept of a bilingual unit because it is still in a mainstream

setting and bilingual children do not do well, particularly in becoming fluent in te

reo. She also said it is a considerable distance from Ms Cavanagh’s home to NC.

Last, but I would not think least, NC would also now be a third school for Olivia to

attend.

[37] I asked Ms Cole which of the three schools was Ms Cavanagh’s second

priority. She said that she would take instructions. Later in the day Ms Cole told me

that Ms Cavanagh saw only one option: Te K. In other words, Ms Cavanagh had

reverted to the position she took in the Family Court up until immediately after the

26 January 2017 judgment.

[38] Given that NC was proposed by Ms Cavanagh in the first place and given

Mr Cavanagh and Mr Askelund’s changed positions, I consider that I must now take

NC into account. It would be unrealistic not to do so. I will later discuss the various

parties’ reasons for supporting, and not supporting, each option.

[39] The second material development is that Muir J earlier granted Ms Cavanagh

leave to call new evidence of Marama T, Acting Principal of Te K, and granted

Mr Cavanagh leave in turn to call evidence from Mary Therese Z, Principal of St P.

I incorporate some parts of that evidence in my assessment of the options.

[40] It necessarily follows that the decisions of 26 and 27 January 2017 are

surpassed to a material extent. I need to consider the three options before me, as the

Family Court Judge unquestionably would have, had she and the parties had

adequate opportunity to do so.

Law

Guardianship disputes

[41] Section 16 of the COCA deals with the exercise of guardianship.

Subsection (1) provides that the duties, powers, rights and responsibilities of a

guardian of a child include, relevantly, the guardian’s:

…

(b) contributing to the child’s intellectual, emotional, physical, social,

cultural, and other personal development; and

(c) determining for or with the child, or helping the child to determine,

questions about important matters affecting the child.

[42] “Important matters affecting the child” expressly includes where and how the

child is to be educated (s 16(2)(d)), and the child’s culture and language (s 16(2)(e)).

[43] Particularly pertinent in the present case, s 16 requires that in exercising their

duties and responsibilities, “a guardian of the child must act jointly (in particular, by

consulting wherever practicable with the aim of securing agreement) with any other

guardians of the child” (s 16(5)).

[44] Where disputes arise about the exercise of guardianship, s 46R provides for

the application made by Mr Cavanagh:

46R Disputes between guardians

(1) If 2 or more guardians of a child are unable to agree on a matter

concerning the exercise of their guardianship, any of them may

apply to the court for its direction.

…

(4) On an application under subsection (1), the court may make any

order relating to the matter that it thinks proper.

[45] Directions made under s 46R must reflect the purpose of the COCA, as stated

in s 3, which is to:

(a) promote children’s welfare and best interests, and facilitate their

development, by helping to ensure that appropriate arrangements are

in place for their guardianship and care; and

(b) recognise certain rights of children.

[46] In addition, any direction made under s 46R must reflect the paramountcy

principle. That is contained in s 4 of the COCA, which requires that the welfare and

best interests of Olivia, in her particular circumstances, must be the first and

paramount consideration. The focus is on what is best for her, not for her parents, or

either of them. There is obviously, however, some overlap. The child-parent

relationship is important, as can be seen throughout the Act, and in particular in s 5.11

[47] Sections 5 and 6 of the COCA are important.

[48] As some discussion is required regarding s 5, I first address s 6. In relation to

proceedings involving guardianship of a child (including appeals), s 6 requires that

any views expressed by the child (either directly or through a representative) must be

11

K v B [2010] NZSC 112, [2011] 2 NZLR 1, at [7] per Elias CJ.

taken into account. That encompasses more than just the child’s wishes.12

While the

expression “taken into account” is stronger than the common statutory formula “have

regard to”, it does not go so far as to render the child’s views determinative.13

The

decision is for the Court, not the child.

[49] The principles relating to a child’s welfare and best interests are set out in s 5.

All but (a), which relates to protecting a child’s safety, are engaged in this case. The

relevant principles are:

(a) Section 5(b): a child’s care, development, and upbringing should be

primarily the responsibility of his or her parents.

(b) Section 5(c): a child’s care, development, and upbringing should be

facilitated by ongoing consultation and co-operation between his or

her parents.

(c) Section 5(d): a child should have continuity in his or her care,

development, and upbringing.

(d) Section 5(e): a child should continue to have a relationship with both

of his or her parents, and a child’s relationship with his or her family

group, whānau, hapū, or iwi should be preserved and strengthened.

(e) Section 5(f): a child’s identity (including his or her culture and

language) should be preserved and strengthened.

[50] When determining what outcome will best serve the welfare and best

interests of the particular child in their particular circumstances, the s 5 principles

must each be examined to see if they are relevant, and if they are, must be taken into

account along with any other relevant matters. As the Supreme Court observed in

K v B, it is self-evident that individual principles may have a greater or lesser

12

C v S [2006] 3 NZLR 420 (HC) at [31(e)]. 13

At [31(h)]. See also Brown v Argyll [2006] NZFLR 705 (HC) at [49], where Priestley J aptly

observes: “Human beings are frequently not the best arbiters of their own best interests.

Children, who have yet to develop to adulthood and are so frequently the casualties of parental

conflict, are no exception to that truism.”

significance in the decision-making process, depending on the circumstances of

individual cases.14

[51] In terms of ss 5(e) and (f), I note that when s 5 was inserted into the Care of

Children Bill by the Justice and Electoral Committee, references to whānau, hapū

and iwi appear to have been intended to recognise the fact that “an integral part of

the context of a child’s best interests is the child’s family and culture, which may

include members of the child’s wider family”.15

I return to this point later.

[52] I have received extensive submissions on the principles in ss 5(e) and (f)

from Ms Cole. She points out that these subsections and the present facts require

consideration of s 20 of the NZBORA:

A person who belongs to an ethnic, religious, or linguistic minority in

New Zealand shall not be denied the right, in community with other

members of that minority, to enjoy the culture, to profess and practise the

religion, or to use the language, of that minority.

[53] Ms Cole notes that this is derived from art 27 of the International Covenant

on Civil and Political Rights (ICCPR), and refers me to United Nations Human

Rights Committee (UNHCR) jurisprudence that establishes that significant

interference with the enjoyment of culture may amount to a violation of art 27 of the

ICCPR. To that, I add that Elias CJ in Takamore v Clarke has recognised with

reference to s 20 that “[c]ultural identification is an aspect of human dignity and

always an important consideration where it is raised”.16

[54] In addition to the ICCPR, the United Nations Convention on the Rights of

Children (UNCROC), to which the s 5 principles are relevant,17

includes two articles

of assistance:

(a) Article 29(c) provides that the education of the child shall be directed

to the development of respect for the child’s own cultural identity,

language and values.

14

K v B, above n 10, at [19] per Tipping J. 15

Care of Children Bill 2003 (54-2) (Select Committee Report) at 3. 16

Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733 at [12]. 17

Care of Children Bill 2003 (54-2) (Select Committee Report) at 3.

(b) Article 30 provides that, in States where persons of indigenous origin

exist, a child belonging to such a minority or who is indigenous shall

not be denied the right, in community with other members of his or

her group, to enjoy his or her own culture or to use his or her own

language.

[55] Ms Cole also refers me to Te Ture mō Te Reo Māori 2016 (Māori Language

Act 2016). In that Act, Parliament expressly affirms the status of te reo Māori as the

indigenous language of New Zealand; a taonga of iwi and Māori; a language valued

by the nation and an official language of New Zealand. The Act is meant to provide

a means to support and revitalise the Māori language. The Act also contains the

Crown’s acknowledgement of the detrimental effects of its past policies and

practices that have over the generations failed to actively protect and promote the

Māori language and encourage its use by Māori (s 6).

[56] Obviously I have to apply the provisions of the COCA, including s 5(f), and

all of the other s 5 principles. But it is helpful to be reminded that s 5(f) in particular

sits within a larger mandate.

[57] Ms Cole refers me to Hanley v Pihama and I have been able to locate two

other Family Court decisions which consider a child attending Kura Kaupapa

Māori.18

I am sure there are more. Ms Cole sought to place some emphasis on

Hanley v Pihama and the decision there by Judge Boshier on the facts of that case, in

favour of the Kura. I agree with that decision and with the outcomes in the other two

cases. But while these decisions make interesting reading, they mainly demonstrate

that each case turns on the child’s particular circumstances. The circumstances in

each are quite different to Olivia’s circumstances.

18

Hanley v Pihama FC Auckland FP004/2003-004-1475, 19 January 2004; JSK v TGK FC

Invercargill FAM-2010-025-144, 27 January 2011; DSW v ATTA [2013] NZFC 406.

Te K, St P, or NC?

[58] I now turn to which of the three schools it is in the welfare and best interests

of Olivia to attend. I will approach the case by considering the position for Olivia

with each of these schools, addressing, among other things, the factors in s 5 and

Olivia’s views.

Te K

[59] Te K is a small Te Aho Matua kura in Rānui. It has approximately

100 students from Year 1 to Year 13. The children are in open plan classrooms. The

school is apparently very attractive and has extensive views from its hilltop position

overlooking Auckland.

[60] At Te K, according to Ms T’s evidence, classes are taught in te reo Māori and

the school incorporates a Māori world-view into all learning. That reaches from

reinforcing children’s whakapapa (genealogy) and relationships with whānau, hapū

and iwi, through to emphasising the study of historical, cultural, political and other

events that are integral parts of Māori heritage, and to promoting kaitiakitanga

(guardianship and protection) of the natural environment. She provided impressive

snapshots of things Te K do, including robust reading and writing programmes,

many sporting activities, performances and gardening projects. Her affidavit speaks

to the unique pedagogy of Te K, and its advantages for enhancing a child’s identity

as Māori.

[61] I accept Ms Cole’s proposition that Olivia would more readily move into

Māori leadership roles later on if she were educated at Te K. That would be an

exciting prospect.

[62] Te K features strongly in providing continuity for Olivia. She had been there

for two years until she started at St P at the beginning of this year. Ms T (and

Ms Cole in her submissions), makes the point that Olivia has developed a kura

whānau, especially through the school’s promotion of tuakana/teina (mentorship)

relationships. Te K provides continuity in terms of those relationships and also in

the style and language of learning.

[63] Olivia’s clear view is that she wishes to go back to Te K. My impression

from the school report is that Olivia was a star student. She is reported as having

gained a reputation for being the class doctor. She would take a child who needed

attention to the sick bay and provide a diagnosis.

[64] Olivia told Mr Askelund in November 2016, before the Family Court hearing,

that what she likes about Te K includes: all her friends, especially all the girls in her

group; a really fun playground; kapa haka and sports. She said she much preferred

Māori schools to Pākehā schools because Pākehā “is not good and has more bullies”.

She said she did not know much about Pākehā schools because her mother “had not

finished the story”, but when her mother was a child, Pākehā had made fun of her for

being a Māori, until she showed them her Māori skills.

[65] Just before this appeal was heard, Olivia listed for Mr Askelund what she

liked about Te K:

Because it is my family language … my mum’s family language.

Because they give you food whenever you don't have any.

Because they are loving.

Because they make sure you always have someone to play with.

[66] Olivia said she would be very upset if she could not go back there.

[67] There was some material before the Family Court which suggested that Te K

fell short academically. In addition, the evidence on appeal from Ms Z was that

Olivia was well below her year group on enrolment at St P. However, Ms Z readily

clarified under concise questioning from Ms Cole that the testing was in English, and

had it been in te reo, the results would likely have been materially different.

Ms Cole also tendered a report (which I accept into evidence) from the previous

Minister for Education, Hekia Parata, which concluded:

… the data shows us that the best results by Māori students have been

achieved in Māori-medium education… The benefits of Māori medium

education are most strongly realised when students remain in Māori medium

for their entire compulsory education pathway (years 1 to 13).

[68] Ms Z was aware of the report and agreed with it.

[69] The significant caveat with regard to Te K is, as pointed out by

Ms Armstrong and Mr Askelund, Olivia’s attendance there does not facilitate

ongoing consultation and co-operation between Olivia’s parents, which is

particularly important in terms of schooling. Olivia started at Te K against

Mr Cavanagh’s wishes and his views have strengthened from there.

[70] I record that Ms T gave evidence that Mr Cavanagh attended Olivia’s

pōwhiri, or start day, at Te K and to the effect that he clearly approved of her

enrolment. It was agreed that evidence was incorrect. Mr Cavanagh was not

present.

[71] Te K is not geographically close to either parent. Ms Cavanagh gave

evidence in her earlier proceeding in the Family Court that it could take her about

half an hour to drive home to Massey from the school. Te K is far distant from

Mr Cavanagh’s house in Glenfield, although I note his work as an Inspector for the

Ministry of Primary Industries seems to be based in Avondale, which is not so

distant.

St P

[72] St P is a state-integrated Catholic School in Massey. It has a roll of

384 students, of which just eight per cent are Māori, 42 per cent are Pākehā, 18 per

cent are Pasifika and the balance is other nationalities. As I have said, Ms Z was

cross-examined before me. I considered her evidence to be very measured and

impartial and I have no doubt that St P is a very caring, nurturing school. The

Family Court Judge noted the academic prowess of St P.

[73] Olivia has been at St P for two terms already and although she expresses a

strong preference for Te K, my impression from what she said to her lawyer is that

she nonetheless likes it at St P. Mr Askelund recorded:

The things she likes about the school are that she can eat anything she wants

at lunchtime. She has lots of friends, about 6, 7 or 8, including Savannah,

Joanna (her best friend), Ruitara and Tamara. She also has some boys who

are friends and she had a pizza, lolly and chocolate pool party at Dad’s house

and three of her school friends came over.

She likes her teacher as they both like science and maths and learning about

new things.

The thing she doesn't like about the school is that people can be a little mean

although not to her most times because she is still getting used to the school

and she is still brand new. She couldn't think of anything else she didn't like.

Reading is challenging because she is still learning new words. She knows

her a, e, i, o, u. She is still catching up. Her teacher takes her for reading

every once in a while, not all of the time.

She thinks she is behind every other person in her class in reading and

writing because they have been there since day 1.

At school she feels happy and not happy because it can be a little

challenging to remember all the rules like to wear your hat and to not break

the school treaty which is not hitting and no punching and no bullying.

[74] The evidence from Ms Z was that Olivia’s performance in the St P reading

and arithmetic tests was improving rapidly.

[75] I admire Olivia for achieving and managing as well as she has at St P. It must

be very difficult for her, learning in a different language and under a different

system. Her achievement also reflects well on Te K and St P.

[76] St P has the significant advantage of being very close to Ms Cavanagh’s

home. I gather it is about three minutes’ drive away. Proximity of her school to one

or other of her parents seems to me to be desirable for Olivia. She is having to travel

in any event from one parent’s house to another (Glenfield to Massey) and spread

herself between those two places. It would be ideal if she could feel secure at a

school near to one of them, from the perspective of cementing friendships at least.

[77] As with Te K, Olivia’s attending St P also does not facilitate ongoing

consultation and co-operation, as her parents will no doubt continue to be at

loggerheads over it. Ms Cavanagh has made it clear she does not want Olivia to

attend a mainstream school, but in particular, she does not want her to attend a

Catholic school. I agree with the Family Court Judge that this could be questionable

given the two older boys have attended R College, a Catholic boys’ school, and

Mr and Ms Cavanagh both signed an enrolment form for St M. Nonetheless, I

proceed on the basis that Ms Cavanagh has had a genuine change of heart. It seems

that her familiarity with her taha Māori has intensified since early 2015. That timing

seems to align with an increasing shift towards incorporation of te ao Māori into the

national identity.

[78] What counts very strongly against St P, in terms of Olivia’s best interests, is

the lack of any material te reo component or other programme that would advance

her appreciation of Māoritanga. It is perhaps surprising in 2017, especially given the

Māori Language Act, that it is not yet Government policy that all primary schools

teach te reo as a compulsory subject. I note also that, whether it is cause or effect,

St P has a very small Māori student enrolment. This may just reflect a low

percentage of Catholic Māori. Ms Z did say they are building on their te reo

programme, but at the moment Olivia would be well ahead of the teaching level.

NC School

[79] NC School (Te Kura-ā-Rito o NC) is an inner-city school with 270 pupils.

The school roll is 43 per cent Māori, 36 per cent NZ European/Pākehā, four per cent

Pasifika and 17 per cent other. There are three units: full immersion (i.e. Māori),

bilingual and English medium. Although on the edge of the city, the school

apparently has grounds which include native bush, vegetable gardens and views of

Maungawhau and Maungakiekie. Like Te K, enhancing children’s appreciation of

the natural environment is a key component of the curriculum.

[80] The school’s practices and curriculum are founded on te ao Māori. Like

Te K, it promotes tuakana/teina relationships. Students are able to extend their

language by participating in pōwhiri, engaging in the school’s bicultural curriculum

and tikanga Māori experiences at iwi celebrations and on marae. The school

recognises that whānau play a key role in their children’s learning.

[81] Home and school learning partnerships are strengthened in a number of ways

by, for example, Te Ara Reo Māori classes for whānau. If Olivia were to go there,

such classes could be beneficial to both Mr and Ms Cavanagh’s ability to engage

with their daughter’s education and the development of her cultural identity and

language.

[82] The bilingual unit, which is the proposed unit for Olivia, would assist in the

development of Olivia’s taha Māori and it is significant, it seems to me, that the

school has a high Māori enrolment. I consider that to be very desirable for someone

who identifies as Māori.

[83] NC is a school that was proposed by Ms Cavanagh in the first place and

strongly endorsed by her at that point. As I recorded earlier, Ms Cole says

Ms Cavanagh has since researched these schools and no longer supports the concept

of a bilingual unit. Her reasons are that a bilingual unit is still a mainstream setting

and that bilingual children do not do well, particularly in becoming fluent in te reo. I

have little evidence of that, but I accept there is likely merit in it. I assume that a

bilingual unit will involve only half of the class time in te reo, which is not even half

of the school day.

[84] NC does have some obvious disadvantages from Olivia’s perspective. There

is not only no continuity of schooling; NC would be Olivia’s third school in a

relatively short period of time. She would have to start all over again in making

friends and establishing herself. It is some distance from both of her parents,

although it is probably not far off a mid-point. Ms Cole submitted from the bar that

it could sometimes take one-and-a-half hours by car from Ms Cavanagh’s house to

the city. Also, NC is close to central Auckland, which does not strike me as an easy

location in itself. I am not so concerned about the distance in terms of time spent in

the car with her parents, as that can be valuable one-on-one time. Rather, NC

concerns me regarding Olivia’s seeing friends in the weekend and holidays.

[85] Olivia may not know of the NC option. As I have said, it was brought to the

forefront again by Mr Askelund’s memorandum two days before this appeal. I have

to assume Olivia would be against a change to NC.

Decision

[86] I agree with Mr Askelund that, although frustrating and near impossible at the

time, with the benefit of hindsight, the appellant’s bilingual schools proposal should

have been considered. It is a great shame that the bilingual proposal was not

investigated and evidenced by Ms and Mr Cavanagh and Olivia’s lawyer well before

26 January 2017. As I have said, the decision not to consider the bilingual schools

was entirely understandable in the circumstances, in the absence of evidence as to

bilingual education and Mr Cavanagh’s opposition to the option.

[87] Te K, St P and NC are all very different but good schools. I have read and am

impressed by their ERO reports and the other information on file. Olivia is a bright,

outgoing child, with parents who are keenly interested in her education. Olivia

would in all probability do well and be happy at any of the three schools, over time.

The question is, all things considered, which school best serves Olivia’s interests?

[88] As to the principles in s 5(b) and (c), which are clearly engaged here, NC is,

in my view, the best option. The singular advantage of NC is that it removes, or goes

a very long way to removing, the flashpoint between Olivia’s parents over her

school, in a situation where both parents’ viewpoints are understandable.

[89] I agree with the Family Court Judge that Mr Cavanagh’s apparent inability to

have meaningful input in Olivia’s school life at Te K is one of a number of factors

against Olivia’s attendance there. This stems primarily from the learning being

entirely in te reo. More importantly, he did not agree with Olivia’s attending Te K in

the first place. Section 16 of the COCA clearly sets out that guardianship decisions

are to be made jointly, by consultation.

[90] Similar problems exist in relation to St P. Ms Cavanagh is clear that she does

not want Olivia to attend a mainstream school, and in particular a Catholic school.

St P does not represent a compromise that both parties can live with. It lacks a

number of the factors Ms Cavanagh desires for her daughter’s schooling – the most

notable gap being its current inability to enhance Olivia’s te reo Māori and

understanding of tikanga, to which I will return.

[91] While this is a discussion about the parents’ views, it is very much about

Olivia. The engagement of both parents in their child’s education is an important

component of that education, and key to the child’s success, using that word in its

broadest sense. Both parents have genuinely held views about what is best for Olivia

in terms of her education, and both of their views appear to be supported by good

reasons. As a result, neither party appears likely to budge. While mere inflexibility

by one or both parties should not necessitate appeasement of a party by a Court, I

consider the reasons underlying their differences here run deep and will continue to

cause difficulties if not alleviated. As long as Olivia attends Te K, or St P, I am

concerned it will remain a bone of contention between her parents. That can only be

detrimental to her interests. In my view, NC provides, as Ms Cole put it back in

January, a fresh start and a compromise.

[92] In terms of s 5(d), I acknowledge NC does nothing in the way of continuity

of schooling for Olivia. The best school for advancing that principle would be Te K,

considering Olivia enjoyed two years there. Te K provides continuity both in style

of learning but also in terms of friendships and other relationships, such as that with

her kura whānau as noted by Ms Cole. St P provides continuity to a much lesser

degree, Olivia having only spent two terms there, but I note her views recorded

above and that she seems to have transitioned well and made new friends. However,

as I have said above, neither Te K nor St P is favourable in terms of ss 5(b) and (c).

[93] Ms Cole attempted to make something of s 5(e) in terms of Olivia’s

relationships at Te K. As a matter of statutory interpretation, and in light of the

comments of the Justice and Electoral Committee referred to earlier, I am not

convinced s 5(e) necessarily encompasses relationships unconnected by family links

or whakapapa, the preceding words “family group” colouring the scope of the words

that follow. However, I have acknowledged Olivia’s relationship with her kura

whānau likely goes toward the continuity principle in s 5(d).

[94] In terms of s 5(e), I do consider that Olivia’s relationship with each of her

parents will be strengthened by attendance at NC, but not by attendance at the other

schools.

[95] Last, and by far from least, is the question of Olivia’s cultural identity, in

terms of s 5(f) and, by extension, s 20 of the NZBORA and the relevant articles of

UNCROC.

[96] I accept s 5(f) has particular importance in the present case. Olivia is a Māori

child. She attended a kohanga reo for four years by agreement between both parents.

She attended a full immersion Māori school for two years. She is fluent in te reo at

the age of seven.

[97] For reasons that should be obvious from the foregoing, Te K scores the

highest in strengthening Olivia’s identity. That is not of course true in terms of her

Pākehā side, but that is a culture that does not need reinforcement, at least not in the

present context.

[98] However, I consider NC is not too far behind Te K in meeting the principle

under s 5(f). As I have noted, as well as the bicultural and bilingual learning

environment, the school’s practices and curriculum are based on te ao Māori and the

school has a significant number of Māori students.

[99] I suspect Ms Cavanagh is correct that, even in a bilingual setting, Olivia will

lose her fluency. But in a bilingual unit at NC she would nonetheless be sufficiently

well grounded to go on to achieve fluency again, if motivated to do so, and she starts

apparently from a strong te reo base. Also, I expect that it would be possible if the

parties agreed at some later date, which I would hope they might, for Olivia to move

out of the bilingual unit into the full immersion unit at NC.

[100] I accept Ms Cole’s submission that Ms Cavanagh or her family or

connections would not be able to develop Olivia’s understanding of te reo, tikanga

and Māoritanga if Olivia were to remain at St P.

[101] Ms Cavanagh has backed away from her proposal that Olivia attend NC, and

I appreciate NC does not exemplify te ao Māori in the way Te K does. I note that

NC is also not Mr Cavanagh’s preference, that being St M, followed by St P.

Nevertheless, the many positives of NC that were advanced by Ms Cavanagh back in

January this year remain substantially true, as far as I can tell. Considering

Mr Cavanagh and Mr Askelund are in agreement with Olivia’s attending the

bilingual unit at NC and considering the proposal did come from Ms Cavanagh in

the first place, it seems to me both parents should be able to live reasonably happily

with NC. They will also both be able to be engaged with the school. Both these

factors will be a big plus for Olivia.

[102] Weighing up all factors, I consider none of the three schools to be ideal for

Olivia, but I consider NC to be the school which it is in her best interests to attend. I

cannot express my reasons much better than Ms Cavanagh did in her own list

provided to the Family Court in January this year. I am particularly influenced by

the school’s obviously successful commitment to te reo and te ao Māori, witnessed

amongst many other things by the size of the Māori roll.

[103] I know Olivia will be upset and she will find it hard to make another change.

But I take some comfort in the fact that she is obviously very adaptable, judging by

the number of friends she recites at St P after four months, and that she will

hopefully be able to resume her te reo stardom. She will, again, be able to speak her

mum’s family language. That was at the top of Olivia’s last list.

[104] In the absence of any agreement to the contrary from the parties beforehand,

I therefore order that Olivia attend NC School from the beginning of Term 3, 2017.

[105] As a matter of form, it follows that the three appeals are allowed.

Addendum

[106] I follow the lead of the Family Court Judge and urge the parties to still try to

reach agreement. I raise the following possibilities, without limitation:

(a) It appears that when Ms Cavanagh raised NC and RB School as

bilingual school options in the Family Court, she had a preference for

RB School. That school has not been raised before me. I am not sure

why. It appears to be much closer to Ms Cavanagh’s house than NC.

From the information provided on 27 January 2017, I cannot see that

there would otherwise be any material difference between RB School

and NC, so that if Ms Cavanagh still has a preference for RB School,

there would be no apparent reason for Mr Cavanagh to disagree.

(b) They might agree on another school altogether.

(c) Mr and Ms Cavanagh should also give careful thought to when Olivia

should change over to NC. I have made the order effective from the

end of this term, as that was the basis of argument. It might, however,

be better for Olivia if the changeover were at the end of the school

year. That might also give more time for Mr and Ms Cavanagh to

carefully consider all possibilities. I suggest the parties or their

counsel liaise with the relevant School Principals over this, and over

the other possibilities I have raised, or that they might consider.

[107] I reserve leave for the parties to seek alternative orders by consent. The

question of costs is also reserved. If Mr Cavanagh wishes to seek costs, he should

file a memorandum within three weeks and Ms Cavanagh within two weeks after

that. I note though, that at least in part, this appeal has arisen because neither parent

fully investigated the options that were best for Olivia until the day after the

Family Court hearing and then again until two days before this hearing. Quite

clearly the responsibility for that fell on them both, not just Ms Cavanagh.

[108] The issue of appointment of lawyer for the child in cases involving a Māori

child has arisen a number of times, here and elsewhere. As the Family Court

Practice Note for the selection and appointment of lawyers for children states,

lawyers for children should have personal qualities compatible with assisting

negotiations in suitable cases.19

Consistent with that, I would endorse Māori

children having Māori representation, or a lawyer with relevant expertise where

possible, especially where cultural identity is clearly at issue. That is no reflection

whatsoever on Olivia’s lawyer here, whose recommendation I have in fact adopted,

19

Family Court Practice Note Lawyer For Child: Selection, Appointment and Other Matters

(28 March 2015) at 9.9.

but rather I see it as a matter of choosing a lawyer with the most appropriate

qualifications and expertise, as with any client.

……………………………………………

Hinton J