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Marriott, Reti and Smith

v

Attorney-General and CYFS:

A Narrative Account

Commissioned by

Charl Hirschfeld, Barrister

Copy right holder ©

Dr Bryan Gilling

March 2005

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Table of Contents

Introduction.................................................................................................................... 3 Background: the 1990s, a difficult family situation....................................................... 4

CYFS Failure to Halt Lance’s Downward Spiral ...................................................... 7 Treatment for Mark and Maureen............................................................................ 21 Conclusion ............................................................................................................... 27

The Abductions ............................................................................................................ 29 The Discipline: 9 February 2000 ............................................................................. 29 The Uplifting of Mark: 10 February 2000 ............................................................... 30 The Uplifting of Patricia 21 February 2000............................................................. 55

Beginning the Struggle to Recover Patricia and Mark ................................................ 68 The Family Group Conference May 2000 ............................................................... 78 Shaping Criminal Charges May-July 2000 .............................................................. 84

Police Investigation and Charges July 2000 ........................................................ 96 The Medical Examination 10 July 2000 ............................................................ 100 Family Court Hearing July 2000........................................................................ 106

Maureen’s Attempts to Resolve the Situation Aug-Oct 2000 ............................... 118 Tamahere and Aftermath November-December 2000............................................... 131

Cathy Flynn’s Report 20 November 2000 ............................................................. 144

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WARNING

This narrative account has been prepared under commission from Charl

Hirschfeld, barrister-at- law, Jamaica Chambers, Auckland. As such it is information

that is privileged and not for wider dissemination without Mr Hirschfeld’s express

permission.

Introduction

This narrative account has been based on an indexed collection of documents

compiled by Mr Hugh Smith. As such it is done without personal knowledge of any of

the participants in the story, or of the events portrayed except as they are revealed in

the documents. This has limitations as much was also said and done without a

documentary record, while some of the documents in the sequence are themselves

missing for various reasons.

However, the file does seem to contain all of the important documents as they

have been held and/or reproduced from a range of sources, mostly court or

departmental files. The most apparently important source that seems to be entirely

absent is the internal CYFS case notes. There must (or certainly should) have been

notes made of each phone call, visit or other contact CYFS officers had with the

various people involved in the story, yet not one of these notes is present in the

documentary record. They might well have contributed an additional dimension to

understanding what CYFS personnel thought about what was going on as well as

confirming or challenging other accounts.

The Service’s title is abbreviated a numerous different ways throughout the

documents, partly because the title itself has changed over time. CYFS has been used

throughout this account as a convenient, readily comprehensible and relatively brief

variation and also because the name of the defendant department in the current action

is Child Youth and Family Services (i.e. CYFS).

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Background: the 1990s, a difficult family situation

There were problems with Maureen’s eldest son, Lance, from at least the mid-

1990s. A Plunket nurse’s notes recorded Maureen seeking help when Lance was aged

only about 5—this would be used by CYFS later to show her as an incompetent

mother.

The family history is recorded in some detail in several of the more substantial

documents throughout the indexed file. One that relates matters to the issues of

present concern is Maureen’s affidavit of 8 August 2000 (Doc 269), also Maureen’s

contextual historical account of 3 August 2001 for her criminal court barrister (Doc

726).

Maureen’s husband, David Marriott, was a drug and alcohol abuser. In the early

1990s he also became a stroke victim and so was of minimal assistance in supporting

the family. Furthermore, he was violent—he had caused Maureen 5 miscarriages

through violence—and cruel to the young Lance and later to the younger children. 1

Patricia was born on 22 November 1989 and Mark a year later on 19 November

1990.

By late 1994, Maureen separated from her husband who was now permanently

hospitalised. Maureen working at nights on shifts at Georgie Pie Bombay to support

her family, meaning Lance was left in charge of smaller children (and possibly

building up picture of Maureen as irresponsible mother). They lived at Maramarua in

a derelict house without water.

In 1995, Maureen and Hugh met and formed a friendship. When Hugh

discovered her situation, he allowed the family to move into a vacant house he had

purchased at Meremere, allowing the small children, Patricia and Mark, to walk to the

nearby Meremere School. Hugh began to act as the children’s informal foster father

and Maureen filed for divorce from her husband.

Children’s father died 6 October 1996. Lance’s behaviour became increasingly

difficult including secretly joining street kids, and he was not accepting of having a

foster father.

1 Maureen Reti, affidavit, 8 August 2000. Doc 269.

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Although only 5, Mark was already exhibiting problem behaviours and in 1996

was diagnosed with ADHD by Dr Tony Hanne of Howick. Dr Hanne had a particular

interest in ADHD, which is why Mark was referred to him by Dr Chin, the GP. Dr

Hanne stated inter alia:

He presents with a typical history of this condition in that he has poor concentration, is easily bored and distracted. He has mood swings, is hyperactive and is impulsive making him accident prone. He has poor short term memory…. At present he still has great difficulty recognising letters and numbers and is disruptive in class…. As is so commonly the case there is a likely family history involving his mother who had great difficulty with spelling, probably because of an attention problem. Mark’s birth parents divorced so that his father is a stranger to him but he apparently has an excellent relationship with his step father so there do not appear to be substantial social factors.2

Dr Hanne prescribed a course of Ritalin to treat the disorder and arranged with

Maureen to keep in phone contact over Mark’s progress.

Dr Gabrielle Galler-Rimm of Campbell Lodge, the children’s unit at

Middlemore Hospital, confirmed Dr Hanne’s diagnosis and repeated a trial Ritalin

treatment in May 1997.3 Mark did not respond well to the drug, within a week losing

weight, acting like a zombie and unable even to recognise Maureen. Maureen on her

own initiative stopped the Ritalin treatment at that point.

Then shortly after that diagnosis was confirmed Hugh and Maureen moved in

together, shifting from the Meremere house to one in Manukau, intending to improve

the children’s educational opportunities.

Maureen began to take active steps to improve her situation. She applied

successfully to a Pukekohe Maori Trust Service for Mark and Patricia to attend a

Mangere School, and in a caregiver’s home during the week. Lance went to stay with

friends on a farm, with the approval of Pukekohe Social Welfare. Hugh supported her

to take some time off, after which she took an NZQA-approved course in Caregiving

at Counties Polytechnic, Pukekohe, and attended weekly classes at Pakuranga in

Spiritual Development.

2 Dr J.A. Hanne to Dr C. Chin, 22 August 1996. Doc 4. 3 Dr G. Galler-Rimm to Teacher, 23 May 1997. Doc 13.

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In 1997, Maureen received assistance for the children’s education. The Dingwall

Trust gave scholarship assistance for Lance to attend St Stephens College, Bombay,

and Maureen successfully sought election to the Board of Trustees as a parent

representative, with the intention of monitoring Lance’s progress. Hugh moved out

into another flat but maintained the ongoing friendship while planning towards his

intended Natural Therapies Centre.

In April 1997, Dr Belinda Austin, paediatric registrar at Middlemore Hospital,

examined Mark following a referral from the Public Health nurse due to Mark’s poor

progress at school. Dr Austin found that Mark had bilateral glue ear which was

impairing his hearing so much it was resulting in him making no progress at school

and was leading to class disruption. Dr Austin urged he have grommets inserted, but

she stated that neither Maureen nor the school were aware of the extent of his hearing

impairment.4 Dr Austin also noted several possible symptoms of fetal alcohol

syndrome as possibly contributing to his comprehension and behavioural problems,

although admitting that she did not conduct a comprehensive examination. But she did

conclude that ‘it is clear that Mark’s primary problem is speech and language delay

due to poor hearing’.5 Maureen responded with a letter of complaint to the Head of

the Paediatric Department at Middlemore. As to the letter to the Grommet Clinic, she

stated that she had no fear of anaesthetic but having had an unsatisfactory experience

over the grommets Lance received previously, she preferred an alternative treatment

such as the dietary changes she had herself already introduced and which were having

a perceptible effect. Nor was she unaware of the extent of the problem, as she had

been seeking assistance for two years and Mark had already attended the Manukau

Ear Clinic (which Dr Austin failed to mention).6

At this time, Mark appears to have had one month leave from school in a trial

with Maureen and Iris Peihana, Community Support Worker for the Spectrum Trust,

to try to develop his social interaction and behavioural skills.7 Mark’s behaviour

quickly reverted on his return to school, so Maureen applied for a special benefit and

then for a disability grant from the Lottery Grants Board.8 [with what result? To

achieve what?]

4 Dr Belinda Austin to Manukau Grommet Clinic, 22 April 1997. Doc 8. 5 Dr Belinda Austin to Dr C. Chin, 22 April 1997. Doc 9. 6 Maureen Reti to Head of Paediatric Dept, Middlemore Hospital, 19 May 1997. Doc 11. 7 Iris Peihana, letter, 20 May 1997. Doc 12. 8 Doc 14; Doc 15.

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In May 1997, Lance stole and crashed Maureen’s car while on leave from

school, causing significant damage and resulting in the involvement of the Police and

a social worker and counsellor. Knowing he had taken the car, Maureen had notified

the Police of the theft in the hope of his early apprehension, 9 so as to minimise danger

to other road users. Lance was put into CYFS approved whanau care with Maureen’s

sister Brenda Reti, who by consent became his unofficial guardian. He was supposed

to remain at St Stephen’s as a full-time boarder, but Brenda unilaterally relaxed that

condition and allowed him to stay with her on weekends in a less controlled

environment. This arrangement may have been with Lance’s consent, but Maureen

was not consulted; if she had been she would have pointed out to CYFS that Brenda

already had 8 children of her own and was in no position to supervise Lance.10

Clearly, CYFS never checked on the suitability of the arrangement for themselves—a

common theme later on, as will be seen.

Hugh rejoined the household for some months, but as the house they were

renting was sold they had to move again, this time to Manurewa. He bought them a

computer and extensive software. Continuing to pursue his aim of setting up a health

centre, he had gained financial backing from a UK lender, but this turned out to be a

fraudulent operator and, with the New Zealand Serious Fraud Office, he successfully

persuaded the Sussex equivalent to prosecute the organisation. Nevertheless, this

meant that he had by now leased the former Paeroa Maternity Hospital building and

grounds and set up the project, but lacked the finance to progress the centre further.

CYFS Failure to Halt Lance’s Downward Spiral

On 5 September 1997, a Family Group Conference was held at St Stephens

College regarding Lance. Present were Lance, Maureen, Maureen’s sister Brenda

Reti, Lois Rogers a ‘Family Supporter’, Max Maaka the 4th Form Dean, Kevin Floyd

representing the ‘victim’ the Auckland Regional Council, John Borchard a Youth Aid

Officer, and Shannon Wetere a Youth Justice Co-ordinator.11

9 Police Complaint Acknowledgement Form, 12 May 1997, File 970512/7012. Doc 10. 10 Stated in Doc 52. 11 ‘Outcome of Family Group Conference’, 8 September 1997. Doc 23. A second conference resulted in Lance’s friend Jermaine Saifiti also writing a letter of apology to Maureen. Docs 24, 25.

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The outcomes were:

• The Auckland Regional Council sought reparation from Lance for $600-900

damage done, and it was agreed that he would work this off during school

holidays. Lance would live with Freda and Alan Pearson of Papakura and

assist them and the ARC.

• Since Maureen was also a victim, Constable Borchard undertook to approach

the Traffic Camera Office to try to have waived the speed camera fines

incurred by Lance but imposed on Maureen.

• Lance would write letters of apology to ARC, Paul Buchanan and Maureen.

However in October 1997 Lance signed himself out of St Stephens and

undertook no further schooling, turning up for one day in the following February at

Hauraki Plains College.

In February 1998, the Education Ministry agreed to provide special funding to

assist Mark under the Education Act 1989 s 9, to provide individually targeted

resourcing to meet his specific needs.12

Another Family Group Conference in Manurewa on 11 March 1998 resulted

from Lance’s burglary on 26 February 1998. He was to complete 80 hours of

community work and return to secondary school. It was agreed that he would return to

live with Maureen although he did not want to. He had already absconded from living

with his aunt at Maramarua, claiming the rules were too strict, and refused to live with

another aunt, Bella Peters. A CYFS social worker was to complete a placement and

counselling assessment for Lance and the Police sought various curfew and non-

association bail conditions to be imposed by the court.13 Lance failed to attend a court

hearing on 20 March 1998 and the court issued a warrant for his arrest.

In early May 1998, Hugh and Maureen separated again and she shifted to a flat

in Otara while he moved to Paeroa. She enrolled for further study at Manukau

Polytechnic.

Yet another Family Group Conference was held in Manurewa on 21 May 1998

after Lance had burgled another property and ‘escaped custody’.14 This time he was to

apologise to the new victim and complete 120 hours community work, divided

12 Secretary for Education to Maureen Reti, February 1998. Doc 26. 13 ‘Outcome of Family Conference’, 11 March 1998. Doc 27. 14 ‘Outcome of Family Conference’, 21 May 1998. Doc 30.

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between the victim’s farm at Maramarua, the Mangatangi Marae, and the Maramarua

Primary School Library. Since he expressed a desire to return to school the Youth

Justice social worker was to follow up with a referral to the Ministry of Education’s

Truancy Service. An adjournment was granted while a social worker’s report was

completed, the prospects being either that Lance remained out of further trouble and

the existing matters would be discharged, or that the Police would seek a court order.

On 26 May Lance was placed in the Northern Residential Centre (Weymouth),

but on 6 June he was involved in an incident where he threatened staff with a baseball

bat, smashed a window and attempted to abscond, but was placed in the Secure Unit.

After that disruption and attempted absconding by Lance from the Centre, Frank

Taipari the Unit Manager applied on 8 June 1998 for Lance’s removal to detention in

secure care, which was approved until 12 June.15 This was followed by yet another

Family Group Conference in the Secure Unit at Weymouth on 11 June.16 This related

to (a) Lance’s failure to complete the recommendations of the previous family group

conferences of 11 March and 19 May (he was still not attending any school), and (b)

the theft of up to $14,000 of tools from a stolen van on 26 May. Matters were

adjourned for a fortnight. On 19 June, Lance again absconded from Weymouth with 2

others after having been out of secure detention for only a few days.17 Once caught

again he was readmitted to the Secure Unit on 28 June for 14 days.18 On 30 June he

appeared in the Otahuhu Youth Court and a retention in the Secure Unit until 15 July

was approved.

In response to all of this, Maureen was feeling at a loss. Her thoughts and

questions were written down by a now-unknown support person on 30 June.19 She

was at that time unaware of any counselling being provided for Lance, and questioned

the level of help he was receiving, as opposed to the custodial/supervisory care. She

also believed that for 14 months Lance had been under the care of CYFS, not her,

noting that in that time, and under their care, Lance had changed from being an

‘underaged youth’ who had committed one minor offence, into an ‘irresponsible adult

with an attitude’ who had committed nine offences. This CYFS supervision had come

about, she said, without her being informed, and she wondered if it derived from a

15 ‘Notice of Application relating to Detention in Secure Care’, 8 June 1998. Doc 33. 16 ‘Outcome of Family Group Conference’, 11 June 1998. Doc 34. 17 Doc 36. 18 Doc 37. 19 Handwritten notes, observations and questions, dated 30 June 1998. Doc 39.

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court order. She did not like the person Lance had become and did not want such a

person to come back to her home; instead she wanted her son back, clearly meaning

the person he was prior to entering CYFS care. She strongly requested assistance in

placing him under the care of Neville Walker, who, she believed, could provide the

kind of direction Lance required. Sensibly, she sought clarification of exactly what

her current responsibilities and rights were vis-à-vis Lance and the extent to which she

could override his decisions and undertakings, or challenge arrangements made by or

for him and which she believed to be inappropriate.

The notes also reveal Maureen’s distinct awareness that all was not well for

Marion (now 8) and Mark (now 7). Mark’s ADHD was pointed out, as was the fact

that he therefore attended a special school in Glenburn. In this, he needed ‘constant

support’, including continual monitoring of his health and behaviour, travelling

backwards and forwards between his school and the family home in Great South

Road, Manurewa, and attendance at parent-teacher meetings.

She was concerned that Marion was unsettled by the disruptions her brothers

were causing and suffering from both that and the resulting demands on Maureen’s

time and attention. Maureen wrote/dictated:

She is in a vulnerable position where she can see that things around her aren’t quite stable and she can see the struggle the we [sic] her family are going through. So I feel that I need to give her as much time as I give my two sons.

Maureen spelled out that:

• She as the children’s mother felt she needed ‘to fulfil my role by enforcing

guidelines (with support)’;

• She was asking for CYFS support for her parenting ‘to guide me in making

sure things are done in its [sic] proper manner and to check that the right help

is being given and that progress is being made’; and

• She was asking for this support and guidance because ‘I am a solo mother with

3 children’.

No-one reading this could have mistaken the facts that:

• Maureen was a woman in a very difficult situation, trying to cope virtually

alone with not just one but two, and potentially three, very difficult children;

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• She was not detached from reality, nor in denial, but was fully aware of the

extent of the problems facing each of her three children;

• Far from abdicating parental responsibility, or being a ‘bad mother’, she was

facing up to the full extent of the difficulties and shouldering the burdens

resulting from them;

• She was realistic enough to know that she could not deal with all of these

problems alone, either in terms of finance or skills, and therefore sought both

support and guidance from appropriate sources, especially the official experts,

CYFS.

Maureen’s attempt to struggle for what she believed to be proper professional

care and supervision for Lance was likewise revealed in a long submission she

prepared for the Family Court, in its hearing of Lance’s case on 7 July 1998.20 She set

out, point by point, the way in which Lance had observed none of the previous

agreements or prior conditions and punishments imposed in earlier conferences, all

while under CYFS supervision or even detention. Clearly, CYFS intervention was

failing in every aspect: in detaining him, supervising him, or enforcing legal sanctions

imposed on him, let alone providing any assistance, counselling or therapy that might

have had a positive attitudinal effect.

Beyond the bare facts, though, she expressed her and frustration at the way in

which Lance’s case had not been handled by a single knowledgeable person, nor with

any sort of consistency, nor, so far as she could see, with any thoughtful regard for the

individuality of Lance as a person or the particular facts of his case history. She

stated:

In the interests of trying to get my son onto a productive yet corrective path I have attended five conferences over the last year and witnessed several changes in his designated welfare officers, with total lack of communication with respect to Lance’s activities, his history, case facts etc. I also experienced long periods of time between unsuccessful resolution and attempted implementation of so-called corrective approaches. I have been deeply frustrated suffering the time wasted with Departmental reports and procedures, and near crying at the lack of departmental effective action directed towards bringing out the best in Lance under firm disciplinary control. It is of genuine concern to me as his mother and long time author of many attempts over recent years to guide him on the right path, that procedures to date have allowed Lance to

20 Maureen Reti, typed statement, 7 July 1998. Doc 40.

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dictate and influence to a large degree the penance he should pay for his actions. He is NOT learning from this privilege, and his thinking and attitude is rapidly deteriorating towards a more serious and dangerous criminal lifestyle. This is appearing to flourish through the present uncreative, unproductive detentions.

Maureen had continued to pursue other options and recommended to the Court

the programme of John De Silva, on Great Barrier Island. This had been proposed to

the immediately preceding conference, but had been rejected by Lance—who publicly

declared his refusal to submit to any form of discipline—together with the CYFS

officer, who insisted he remain at large in mainland Auckland in order to fulfil his

obligations to the latest victim. Maureen expressed her strongest objection to the

Court approving any release of Lance from detention, as residential care had had no

positive impact on him, and asked that her maternal care and experience be given

precedence over CYFS recommendations otherwise.

Maureen was here highlighting that there appeared to have been little or no

constructive attempt made by CYFS to direct Lance over well over a year’s time; their

sole response appeared to her to have been to lock him up for brief periods, which he

either escaped from or manipulated himself out of. In either case, there appeared to be

no sanction enforced by CYFS when he invariably broke either his vo luntary

agreements or conditions imposed. She was arguing for a ‘tougher love’ solution than

CYFS was prepared to countenance, while their concern appeared to have scant

regard for either Lance’s greater well-being or for his family, particularly her.

The judge at the 7 July hearing noted this letter and directed that it be put on

Lance’s file with a note requiring any other judge dealing with Lance to read it.21

The suggestion of another programme in Matamata had been made to social

worker Shannon Witere, who had undertaken to follow it up and get back to Maureen,

but he did neither. When she checked with the programme for herself, he had not

checked nor reported back to her.22

Lance was due to appear before the Otahuhu Youth Court on 21 July but on 15

July, the day on which he was discharged from the Secure Unit, he escaped from

Weymouth again and the 21 July hearing was cancelled.23 On 23 July he was uplifted

by a group of associates in a stolen car which he then took over from them and drove

21 Stated in Doc 52. 22 Stated in Doc 52. 23 NZ Police Caption Summary/Summary of Facts. Doc 45.

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to Ngatea to see his Auntie Tania, where he was then caught by the Police, who took

him to Hamilton.

Meanwhile, on 21 July, Maureen had visited the Manurewa CYFS offices and

spoken to two officers, Charlotte and Shannon. The CYFS report due for the Court by

this date on the FGC of 6 July had still not been prepared. Maureen raised her

concerns directly with them and also suggested the De Silva programme on Great

Barrier Island.24 Rather than arrange matters so that he could be dealt with as soon as

he was picked up, Charlotte merely said that they could do nothing until he was

apprehended.

The Youth Court in Hamilton heard the case on 27 July 1998, the charges being

unlawful conversion of a motor vehicle (possible sentence 7 years) and escaping from

a penal institution (possible sentence 5 years). The Court ordered Lance’s ongoing

detention in the custody of the Director General of Social Welfare at Weymouth’s

Secure Unit under s 238 of the CYPF Act 1989 until he appeared before the Youth

Court in Otahuhu on 6 August 1998.25 Maureen was speaking to Charlotte at CYFS

again on this day but Charlotte could not tell her who would be with Lance in Court.

Maureen made her displeasure known, but states that she did not swear at the social

worker.26

As a result of this exchange, Hugh now raised directly by phone with Andy

Gillies the serious concerns Maureen had regarding the Service’s management of

Lance and his situation. He named the social workers with whom they had been

dealing. 27 Mr Gillies, Area Manager Auckland Youth Justice, a department with the

Department of Social Welfare, wrote from Grey Lynn acknowledging the receipt of

those complaints. He undertook:

Arrangements will be made to have the matters raised on your behalf by

Mr Smith properly investigated and you will hear from me further in due

course.28

By 10 August, Mr Gillies had not replied to Maureen or Hugh and the same social

workers were still dealing with Lance’s case.

24 Stated in Doc 52. 25 Order for Custody, 27 July 1998. Docs 44, 46, 47. 26 Stated in Doc 52. 27 Stated in Doc 52. 28 Andy Gillies to Maureen Reti, 29 July 1998. Doc 47.

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On 5 August, Maureen spoke to social worker Charlotte by phone to tell her that

Neville Walker could take Lance into his programme. Charlotte agreed to fax a note

to the Court supporting this option before the hearing the next day but would not

attend the hearing as she was going on a course on that day. She did, though, ask

about Lance’s education, although Lance had not been at school since the previous

year, suggesting a substantial lack of familiarity with Lance and his situation. 29

Charlotte did not know who might attend Court with Lance on the following day. 30

In preparation for the 6 August court hearing, and following these discussions,

Maureen again wrote at length, as a submission to the Court, her concerns about

CYFS supervision and her proposals for Lance’s rehabilitation. 31 These were only

compounded by the complete breakdown of communication between the Police, the

Court and CYFS with regard to information about both Lance’s re-offending and his

appearance before the Court on that day.

• She described how she had on her own initiative found Lance a suitable

placement in Neville Walker’s programme at Opotiki, and the particular

and relevant merits of that programme.

• She stated that she had herself confirmed on 27 July with the

management of John De Silva’s programme on Great Barrier Island that

there was a place available there for Lance, despite a CYFS officer

having claimed on 22 July that the De Silva centre was full.

• She set out various failures by CYFS to prepare for Lance’s court

appearances or to complete reports due for presentation at the recent

hearing.

• She set out in detail her various efforts, on 5 August, the day before

Lance’s scheduled Court appearance, to gather information about Lance,

only to find that not one Government agency—neither Police, CYFS or

the Court itself—was prepared with current information. The answer

suggested by one CYFS officer was that another CYFS officer might still

have the information—now 13 days old—still in his briefcase, but that

he was away at a conference.

29 Stated in Doc 52. 30 Stated in Doc 52. 31 Maureen Reti, typed statement, 5 August 1998. Doc 49.

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• She attached the summary of Lance’s offending prepared by the

Weymouth Manager on 27 July.

The Otahuhu Youth Court that day ordered his detention by CYFS and his

reappearance before the Court on 25 August 1998. Immediately after appearing before

the Court on 6 August Lance asked to see a doctor in the administration building for a

cut on his hand.32 On the way there, he jumped the front wall and absconded again.

By 10 August, he had been apprehended and was being placed back in the Secure

Unit.

On 6 August Maureen, on the advice of the Citizen’s Advice Bureau, arranged

for someone from the Te Hiku o te Ika Trus t to be at the Court with Lance.33 There is

no indication that CYFS sent anyone to the court hearing

The next day, Maureen arranged with a minister to organise another meeting.

She then spoke to Tania, a CYFS Manurewa supervisor, who agreed to facilitate a

meeting on 13 August, including several of Lance’s social workers, but a number no

longer worked there. Maureen contacted Reihana Murphy at Otahuhu through the

Waipareira Trust. Maureen also contacted the Otara Maori Wardens, but received

short treatment from Tuhi Vahakola, who told her she was a liar, although clearly

Tuhi had been given incorrect information by CYFS.34

On 10 August 1998, Maureen was visited, at Maureen’s own request, by Sonia

Hawea, Acting Regional Director of Te Puni Kokiri/the Ministry of Maori Affairs,

after Maureen’s frustrated attempts to gain official notice culminated in her going on

8 August to Te Atatu to speak personally to the then Minister of Maori Affairs, the

Hon Tau Henare, at his electorate office. Maureen sought to explain to someone

official, who she thought might listen to her and take some action, the mounting

frustration and disillusionment she felt with the CYFS system’s dealing with Lance,

and its apparent failure to even keep him in custody, let alone make any attempt at

rehabilitation or redirection of his life.

Ms Hawea’s file note sets out the number of agencies and officials Maureen had

approached or tried to deal with on Lance’s behalf, many of which are set out above,

32 Absconding Report, Northern Residential Centre, 6 August 1998. Doc 51. 33 Stated in Doc 52. 34 Stated in Doc 52.

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together with other details and examples that are either repeated in other documents or

are not important to set out here.35

In addition to all the failures of procedure and responsible or pro-active

supervision detailed in Ms Hawea’s file note there were complaints from Maureen

about the attitude displayed by CYFS officers in several different ways.

• They did not seem really to care about how realistic or sensible the

arrangements were that they made or supported concerning Lance,

indicating a failure to be responsible about the outcomes. For example, at

the 5th FGC, Lance agreed to repay the victim in a very short time from

the proceeds of a $14,000 car sale, but Maureen suspected that the car

was stolen or that Lance was planning to steal again to raise the money

and refused to support the agreement. In her opinion, Ida and the CYFS

staff seemed only interested in reaching an agreement, not in how Lance

might find that large a sum of money.

• They appeared too idle or unconcerned to follow up on more pro-active

options for addressing Lance’s needs than simply placing him in

Weymouth. When Maureen had found out about the Great Barrier Island

programme and arranged for Lance to be accepted, Charlotte had then

told her she had phoned the programme and it was full. Yet when

Maureen contacted the programme again, the Co-ordinator said Charlotte

had never contacted them by phone or fax. Social worker Shannon

Witene then made excuses but likewise never acted to follow up the

option.

• They seemed to take no responsibility for supervising or enforcing any

of the court orders or FGC arrangements. Lance had broken every one of

these with impunity over a year and a half by then.

• They treated Maureen with what seemed to her like contempt. (a) They

failed to consult her on Lance’s placements. (b) They failed to follow up

on the placement possibilities she had unearthed on her own initiative.

(c) They failed to communicate with her about Lance. (d) They failed to

retain information she gave them repeatedly about Lance and his history,

indicating both the lack of consistency in his treatment and lack of value

35 Sonia Hawea, File Note, Te Puni Kokiri, 10 August 1998. Doc 52.

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placed upon such knowledge. (e) When they did speak to her it was in

such a way that she felt they were putting her down and making her feel

stupid. For example, Ms Hawea’s file note records: ‘At the same meeting

[on 21 July] Charlotte “lectured” Maureen about “how kids are”.

Charlotte knew about Maureen’s letter to the Court. Charlotte told

Maureen it was a waste of time writing the letter because the court

wouldn’t pay any attention to it. Maureen had been told otherwise by the

judge.’36

As a result of her meeting with Maureen, Ms Hawea undertook to recommend

the Minister speak to Social Welfare Minister Roger Sowry about the situation and

ask him to investigate, and to write to Andy Gillies of CYFS explaining what was

going on and asking for the results of his own promised investigation. 37

Ms Hawea wrote immediately to Andy Gillies as promised, pointing out the

ministerial interest and involvement.38 She reminded him of the as-yet unfilled

commitment he had made to investigate Hugh’s complaints and pointed out that the

situation had not changed and CYFS service had not improved. She gave the example

of one failure relating to the court hearing just past, how instead of providing the

Court with the promised information regarding the placement Maureen had

investigated, CYFS Manurewa had provided the Court with nothing. The Court had

had no option but to cancel the hearing that day and Lance immediately absconded

again, remaining still at large.

Ms Hawea also reminded Andy Gillies of the meeting on 13 August that

Maureen had organised of all the people dealing with Lance and that would be held at

Manurewa CYFS, although facilitated by TPK. She explained that Maureen was

seeking explanations there for the handling of Lance. Furthermore, this was not

merely a raking over of the past, but, Ms Hawea stated: ‘Mrs Reti is anxious to be

heard so that something is done immediately for Lance.’ She did not want him to be

locked up with ‘the big boys’ as could happen soon when he turned 16, and which

appeared to be what CYFS was biding their time for.39

36 Stated in Doc 52. 37 Doc 52. 38 Sonia Hawea to Andy Gillies, 10 August 1998. Doc 53. 39 Stated in Doc 53.

18

Lance’s solicitor to about this time had been Laverne King. By the remand until

25 August 1998, his new counsel was Ida Malosi.

On 12 August the Glenburn Centre in Massey, West Auckland, wrote

welcoming Maureen, Hugh and Mark to the Centre. Mark’s therapist was to be

Devina Jervis.40

A social worker’s internal summary of Lance’s case history was completed on

13 August 1998.41 There had already been 6 CYFS staff involved in his case to date—

these appear to have been those with a primary responsibility as other staff had

participated in the various incidents, interviews and such. Patricia was omitted from

the list of significant people in Lance’s life, although the deceased father was

included. The current charges Lance was facing were: burglary x 2, breaking and

entering x 2, theft x 2, unlawfully taking a motor vehicle x 2, and escaping custody x

2.

On 24 August, Social Worker Charlotte Harris completed a report for the Court,

but it acknowledged that it was up to date only to the 6 July Family Group Conference

and did not take note of Lance’s further offending. 42 Ms Harris noted that both Lance

and Maureen felt there was no point to further conferences as he had no income or

savings to enable any reparation payments. The report presented a plan, agreed to by

Lance, for supervision with residence at Weymouth—the top tariff available to the

Youth Court—followed by a further 3 months of living with Maureen under her

supervision. Lance’s remorse, awareness of the impact of his actions on others, and

willingness to undergo the supervision programme were emphasised.

An unnamed programme proposed by Maureen was mentioned, but it was

considered unsuitable as it was under investigation. This will have been the Neville

Walker programme.

Maureen’s visit to CYFS on 21 July was mentioned as Maureen ‘discussing her

feelings’ with Ms Harris and the Co-ordinator. There was no mention of the type or

extent of Maureen’s concerns.

The report set out Ms Harris’s understanding of Lance’s understanding and

opinions of various aspects his life and the family situation. One key paragraph stated:

For these same confused reasons Lance disapproves of his mother’s present relationship. He had been his mother’s ‘protector’ until she formed

40 Wendy Taylor to Maureen Reti and Hugh Smith, 12 August 1998. Doc 56. 41 Unsigned [Charlotte Harris?] typescript, 13 August 1998. Doc 57. 42 C. Harris, Report on Lance Marriott, 24 August 1998. Doc 58.

19

this present relationship. He has fears for his mother’s well being (presently unfounded). His younger brother 7 and sister 8 adore him and he relates well with them. They would like Lance to come home to them.43

This is hard to untangle. ‘These same reasons’ were being upset at his father’s

death and being denied spending the upcoming weekend with him as planned at that

time, and also being pleased that the alcohol, drugs and physical abuse had now

ended. None of this applies to Hugh, nor to Hugh’s relationship with Maureen. There

is no reason to link Hugh with alcohol, drug or physical abuse. The ‘presently’

qualifying ‘unfounded’ carries a strong implication that there is reason to believe that

the alleged fears that Hugh would harm Maureen might have substance—a completely

unfounded and highly prejudicial implication.

With regard to implications, in subsequent paragraphs Ms Harris commented on

how Maureen ‘now understands’ the need for counselling both Lance and the family,

how she ‘now realises’ that the concerns went back into Lance’s childhood, and was

‘now more understanding’ of the CYPF Act. The clear implication of such comments

is that Maureen previously understood little of the situation. But the letters Maureen

had been writing and the questions she had been asking for months indicate clearly

that Maureen was well aware of the problem and was taking extremely seriously both

the level of supervision and help Lance was receiving and the trend his life had taken

in the Service’s care.

The Otahuhu Youth Court ordered on 25 August that Lance be placed in custody

for 3 months. On the morning of 26 August, Lance absconded again. 44 Once caught,

Lance was placed in the Hamilton Secure Unit.

Andy Gillies responded on 3 September to the concerns raised in late July and

Sonia Hawea’s letter of 10 August.45 He had, even then, seen no documentation or

minutes of the 13 August meeting. Instead, he commented:

However, on the information provided to me by my own staff I am very hopeful that the working relationship between yourself and the Youth Justice staff in South Auckland will be enhanced and the areas of communication particularly those which Mr Smith expressed to me have been resolved.

43 This appears to be solely based on Lance’s perceptions. There is no independent confirmation that the younger two did ‘adore’ him and wish him home, nor any comment on what impact on the family’s life his presence might have. 44 Absconding Report, 26 August 1998. Doc 62. 45 Andy Gillies to Maureen Reti, 3 September 1998. Doc 67.

20

This was apparently putting virtually the entire responsibility for fixing the situation

on that meeting, which was run by TPK, not assuming any restorative responsibility

himself.

Only two issues of the many concerns Maureen and Hugh had were even

mentioned in Mr Gillies’ letter. First, he commented on the difference of opinion over

the Whakapakari programme on Great Barrier Island. Whereas Maureen had been told

by CYFS staff that there were no beds available and that her own enquiries had found

that no contact had been made and that beds were available, Mr Gillies explained this

as a failure by CFYS to explain that there were no beds available to CYFS on a pre-

existing pre-purchase basis. Other community groups could still have purchased

bednights. He did admit that CYFS should have explained the distinction. This

sidesteps the issue. No CYFS contact had been made at all with the programme, but

she was told they had. Further, this did not explain the complete CYFS inaction; if the

programme was worthwhile, could they not have spent money on buying another

bedspace, rather than sending more good money after bad in trying ineffectually to

keep Lance incarcerated at Weymouth? Surely the impression created—apart from the

possibility of a lack of truth on someone’s part over the actual contact—is that no real

commitment existed, that the first difficulty raised was enough to discourage any

further effort to think and act more energetically on his behalf.

The second of Hugh’s issues that Mr Gillies addressed was the lack of CYFS

communication with Maureen. He said nothing about the specific problems and gave

no indication that he had investigated them in any way. Instead, he merely stated

Service policy to try to ensure consistency and to keep her informed, and that he had

asked that this occur in the future. There was no apology or explanation for past

failings.

Gillies’ concluding statement did recognise officially that Maureen was actively

working in the best interests of her son:

It is appreciated that you are very concerned to ensure that everything possible is done to assist Lance at this difficult time and to also make him realise that he needs to be held accountable for his offending. 46

Having been returned from the Hamilton Secure Unit on 14 September, Lance

absconded from Weymouth yet again on the same day, earning himself additional

46 Doc 67.

21

time in the Secure Unit from 20 September, after the Police had apprehended him

following further reoffending. 47 Arthur Uruamo, the Unit Manager, commented that

Lance had now absconded on 5 occasions, reoffending on 4 of them, and also that

despite reassurances and support Lance had seized all his opportunities to abscond.48

As Lance was to appear before the Court once more on 17 November, on 16

November, Maureen again wrote to the Court asking that a different approach be

tried, applying different sections of the CYPF Act 1989 to give Lance more

appropriate care and protection. Particularly, she again asked for a six-month period

in Neville Walker’s Opotiki programme, although she was well aware that the

Probation Officer would oppose such a resolution. She gave her opinion that he also

needed a court-ordered psychological evaluation, as given his family history,

especially with his father, ‘Lance is now firmly bent on making other people suffer for

what he sees as his situation in his 15th year’.49

Following a burst of 15 offences in late November and December 1999, another

FGC was held for Lance at Weymouth on 12 January 2000, chaired by Shannon

Wetere, Youth Justice Co-ordinator.50 Lance was due to appear before the Auckland

District Court on 19 January and in both the Papakura and Waihi Youth Courts on 20

January 2000. Not surprisingly, there was a large but unspecified sum of reparations

outstanding. It was recommended that the Police lay information in the Waihi Youth

Court on 5 of the charges, that Papakura matters be heard in Waihi too, and that Lance

be convicted and transferred to the District Court for sentence.

Treatment for Mark and Maureen

A collection of documents gathered together as Document 85 outline some of

the efforts made by Maureen and a series of health and education professionals to deal

with Mark. Dr Hanne’s initial ADHD diagnosis in 1996 has been discussed above.

There was then a 1-year waiting list to be attended to at Campbell Lodge,51 but Dr

Galler-Rimm nevertheless saw him on 21 February 1997, indicating a consensus that 47 Docs 68, 69. 48 Arthur Uruamo to Presiding Youth Court Judge, Takapuna, 21 September 1998. Doc 71. 49 Maureen Reti to Presiding Judge, District Court, Otahuhu, 16 November 1998. Doc 73. 50 Shannon Wetere to Maureen Reti, 18 January 2000. Doc 95. 51 Doc 85/2.

22

Mark’s case was urgent. Dr Galler-Rimm prescribed a course of Ritalin to treat the

condition. 52 Family GP, Dr Chin, also wrote a general letter of reference, stating:

He presents with a typical history of attention deficit hyperactivity disorder. He has poor concentration, easily bored and distracted. He has mood swings, is hyperactive and impatient. As a result, he has poor school performance with lack of comprehension and poor speech. 53

Maureen had approached Glenburn Centre by the beginning of June 1997, being

first invited to a generic information session there. In August, he was placed on the

last ‘chance’ before suspension at Homai Primary School.54 He was accepted into an

intake of the Pakuranga Children’s Health Camp 14 October to 12 November 1997.55

Maureen attended a week- long parenting skills course at Pakuranga Children’s Health

Camp 3-8 November 1997, presumably while Mark was still in the camp.56 At this

time, the Ministry of Education refused to resource Mark under the Special Education

2000 Ongoing Resourcing Scheme, however on 28 November approval was given for

him to be enrolled at the Special Education Needs Class at Manurewa Central

School. 57

The tenth of August 1998 had been a very busy day for Maureen as in addition

to all the dealings over Lance it was also the day on which Mark started at the

Glenburn Centre. He remained there for 15 weeks and exited on 4 December 1998.

Glenburn’s exit report confirmed that Mark had made significant progress while there,

but also that Maureen had too, learning new coping strategies and also greatly

increasing ‘her own confidence of been [sic] a parent & setting boundaries &

consequences’.58 Glenburn’s recommendations were that Maureen enter a

detoxification programme at Federal Street and then look at some assistance for anger

management. It noted that Maureen had already sought support ‘in Paeroa’ and

guidance from Maori kaumatua but added that there was conflict apparent between

‘the Maori solution and Pakeha expectations of support’.

There is some discrepancy here between the Exit Recommendations and the

Residential Summary/Closure, both of which appear to have been dated 4 December.

52 Dr Galler-Rimm’s letter and prescriptions. Docs 85/5 & 6. 53 Dr Chin, letter, 4 June 1997. Doc 85/7. 54 Docs 85/9 & 10. 55 Doc 85/13. 56 Doc 85/12. 57 Ron Scott to Maureen Reti, 28 November 1997. Doc 85/15. 58 Glenburn Centre, ‘Exit Recommendations’ and ‘Residential Summary/Closure’, 4 December 1998. Doc 74.

23

The recommendations are for further assistance for Maureen, but the Summary

appears actually to have been written some time later and reports that she had already

attended the full detoxification programme at Federal Street and then voluntarily put

herself into the Fifth Dimension Resource Trust. Mark and Marion/Patricia,

meanwhile had been in the care of Baptist Family Services. Since they had stayed

there for longer than 56 days, a Family Group Conference was called (presumably

that of 31 March 1999. The whole family had then moved to Paeroa.59

It was agreed at that FGC that the children remain in Baptist Family Services

care (under CYFS supervision) for another 28 days, with a possible extension for a

further 28 days only. 60 The complete Baptist Family Services file relating to their care

of Mark and Patricia is Docs 225 and 225A, compiled following a written request

from Maureen 12 July 2000 as she was facing the Family Court hearing that month

for custody of the two children. She sought an additional written confirmation from

BFS that the whanau had come to the Service of their own initiative, but if one was

written it is not attached to those documents.

Somewhat taking the gloss off these many positive developments for Mark and

Maureen’s efforts to resolve her own personal issues was a note that towards the end

of ‘the programme’, presumably the Glenburn treatment, Maureen had become

stressed and had informed the Centre that she had ‘hit’ Mark.61 There is no indication

that Mark was distressed enough to report this or that the effects of this were

otherwise apparent to Glenburn staff, so that they would have even been aware

without Maureen informing them. Nevertheless Glenburn had felt obliged to report

the incident to CYFS.

In her Post-Exit Review on 15 December, Glenburn worker Reona Jarvis noted

that Maureen still had alcohol and drug issues that were causing problems, leading to

her inflicting some further violence upon Mark.62 She was very open about the

situation and very upset also. She had requested that the two children be taken by

Baptist Family Services for respite care while she attended Glenburn supported her

requests and referred the situation to CYFS and to the Federal Street detoxification

programme.

59 Residential Summary. Doc 74. 60 Agreement for Temporary Care, 31 March 1999. In Doc 225A. 61 Residential Summary. Doc 74. 62 Glenburn Centre, Post Exist Review, 15 December 1998. Doc 76.

24

Glenburn also referred Mark for a psychological report, which seems also to

have been done on 4 December.63 Psychologist Robyn Vertongen summarised the

violent and disrupted home background from when Maureen’s husband had been alive

and noted that Maureen had first sought help for Mark when he was 4, for aggressive

and inappropriate behaviours. Mark’s current problems were ina ttention and being

easily distracted, aggressive behaviour, lack of social skills, and nightmares. The

aggressive behaviour and nightmares occurred mostly at home, Ms Vertongen noting

that Maureen found it difficult to maintain a consistent discipline, especially when

feeling she was punishing him for something she had caused. Maureen, too, admitted

her difficulties with controlling her own frustrations and anger.

Amongst the psychologist’s recommendations for addressing Mark’s various

problems was an up to date educational assessment to enable appropriate remedial

teaching at school. She also recommended that Maureen receive anger management

training, assistance to address unresolved issues from the abuse that she herself had

suffered, and attending a drug and alcohol programme.64

Mark and Patricia continued to remain in the care of Baptist Family Services. A

Family Group Conference, run by Otara CYFS, was held on 31 March 1999 to discuss

their ongoing care. The representatives of Glenburn, Baptist Family services and

CYFS agreed that there were care and protection concerns pursuant to s 14(1)(a), (b)

and (f) of the CYPF Act. The conference could not reach agreement though and they

were left with Baptist Family Services until the conference re-convened on 13 April.65

Subsequently, Mark went to live with Maureen in Paeroa, while Patricia went to

Rotorua to stay with her aunt, Alice Reti.

Patricia stayed with Alice for seven months ‘by voluntary mutual arrangement

with Maureen’, especially so that Maureen could focus on dealing with Mark.66

During that lengthy period, CYFS was supposed to follow up and arrange services for

Patricia, ‘but’, Alice stated, ‘nothing ever eventuated in the 7 months that I had

Marion, despite both Myself and Maureen frequently ringing CYPFS’. She gave one

example where an appointment was finally arranged, but although the CYFS worker

was in town she failed to keep the appointment. ‘Maureen kept in regular contact

63 Robyn Vertongen, Psychological Report, 4 December 1998. Doc 85/17-9. 64 Doc 85/17-9. 65 Evelyn Bennett, ‘Record of Decis ions…’, 31 March 1999. Doc 87. 66 Alice Reti, affidavit, 17 July 2000. Doc 240.

25

during this time and often showed her disappointment at broken promises by CYPFS

and other services.’67 In general, Alice observed:68

As Maureen’s older sister, I have tried to help her in her search for help and a greater understanding of Mark’s ADHD. I have been to FGCs, have seen and heard Maureen ask for help from many services including CYPFS, and I have seen her hurts and disappointments when the cries for help never produced any effective help.

Mark was seen on 8 July 1999 by Dr Elizabeth Allen at the Paeroa Medical

Centre, confirming the ADHD family history and diagnosis. Dr Allen stated that

Maureen would need respite care provided and informed Disability Support Link

accordingly.69 This was an acute visit, but the report does not say why it was acute.

Mark was evaluated by the iridologist at 5th Dimension on 28 October 1999.70

Findings included confirmation of ADHD/hyperactivity, and stress and tension and a

course of treatment was recommended, especially relating to nutrition.

Lance was now in serious trouble, having walked out of St Stephen’s College

and being repeatedly in trouble to CYFS and the Youth Courts. As a 16-year old he

was several times sentenced to periods in Weymouth Detention Centre, but he each

time re-offended as soon as he left the Centre. Maureen attended the various hearings

and family conferences. She actively and repeatedly sought assistance in providing for

Lance, but in each case was turned down by CYFS. On one occasion, she asked for

Lance to be sent to Great Barrier Island where John De Silva ran a camp for troubled

youth. A social worker told her that there were no places available there. Despite her

finding out directly for herself from the De Silva’s camp management that there were

indeed places available and they were prepared to take Lance, CYFS refused to assist.

Again, Maureen found on her own initiative Neville Walker’s Youth Rehabilitation

Programme in Opotiki, but no government agency would assist her to meet the costs,

which were beyond her own financial resources. No help was therefore provided

which would take Lance out of the situation he had now created for himself and the

family, greatly stressing the family and failing to forestall his escalating anti-social

behaviour.

67 Alice Reti, affidavit, 17 July 2000. Doc 240. 68 Alice Reti, affidavit, 17 July 2000. Doc 240. 69 Dr Allen to Dr Newman, 8 July 1999. Doc 90. 70 B. Amos, Iridology Analysis, 28 October 1999. Doc 93.

26

On Lance’s 17th birthday, he was driven to begin a sentence in Waikeria Prison

by John Henwood. Henwood was then a probation officer, but subsequently became

CYFS Supervisor at Paeroa and thus an important participant in later events there.

From that encounter with Lance—a long-term rebellious teenager being incarcerated

on his birthday—Henwood formed the view that (in Lance’s opinion at least) Hugh

Smith was an undesirable foster father and he testified to that effect in the Family

Court hearing four years later.

To try to resolve the stress on her family, Maureen through her own initiative

and efforts located the Glenburn Special Needs School in West Auckland and then

arranged for Baptist Social Services to provide temporary care for Patricia and Mark.

The advice she received [from whom?] was that she could not get financial support

for the children unless she volunteered for a rehabilitation programme herself. She

therefore volunteered to undertake a detoxification programme, which she did at

Hugh’s new Paeroa Centre.

Session notes from the Addiction Resource Centre in Rotorua noted Maureen

having had a session with Peti Matenga on 4 May 1999.71 She had reported that the

last time she had then taken alcohol or drugs was a small amount of beer and cannabis

on Christmas Day 1998. It was noted:

Maureen wants a better life for her and the children. She does not wish to see the children repeating the vicious cycle of addiction i.e. alcohol, drugs and violence.

Maureen told the counsellor that whether she could attend the two further counselling

sessions depended on transport and whether CYFS could assist her financially to

attend. In the event, she attended no more sessions there. Was this another incident of

CYFS failure to intervene when asked to prevent emergent difficulties, before then

dishing out punishment and blame some months later?

The two children were enrolled in Paeroa schools. Mark began at Tirohia

Primary school in May 1999 ‘as a result of his mother wishing to place him in a

school where every effort was made to prevent “special needs students” being

stigmatized as such’, and which ‘provided a curriculum which Mark’s mother

believed would benefit Mark’.72 Together with the Special Education Service,

Maureen worked in cooperation with the school to gain funding and staffing to assist

71 Rachel Haumate to Maureen Reti, 13 March 2000. Doc 128. 72 Peter McNair, affidavit, 7 July 2000. Doc 209.

27

Mark. While Mark ‘responded well’ to this programme his behaviour grew

increasingly difficult and offensive, but ‘despite requiring more supervision than most

he generally responded to a firm approach’. In November 1999, Mark was accused of

molesting young girls in a taxi; Maureen wanted to call the Police in at that point to

provide Mark with a shock that would make an impression on him, but Principal Peter

McNair made the decision not to involve the Police.73 Mr McNair’s statements

confirm independently how difficult Mark was to handle, that ‘firmness’ was required

in dealing with him, and that Maureen was trying all avenues to cope with him.

Patricia began at Paeroa Central School at the start of the 2000 academic year.

Maureen chose that school for her after ‘previously satisfying herself that we could

offer the Educational benefits which the mother sought for her daughter, two of the

benefits being bi- lingual classes and cultural awareness, which followed on from the

child’s previous Kura Kaupapa schooling in Rotorua’.74 This confirms independently,

against later CYFS implications, that Patricia’s time in Rotorua was of intended

benefit to her and that Maureen was going to considerable thought and effort in

looking out for the best interests of her children through this period—only a few

weeks before CYFS took them from her.

Conclusion

This extensive background is important for several reasons.

First, it makes clear that the events of 9 February did not appear without

warning from a clear blue sky, but there was an immensely difficult complex of

intractable issues swirling around Maureen and her children for a decade prior to that

time.

Second, it reveals the lengths to which Maureen had been going to address those

issues, to the best of her ability and with extremely limited personal and financial

resources.

73 McNair, affidavit. Doc 209. See also his later testimony at the criminal trial, basically to the effect that he left dealing with the matter to a classroom teacher. 74 Brian Pratt, affidavit, 19 June 2000. Doc 182.

28

Third, it shows how singularly inert and useless CYFS had been in either

heading off Lance’s spiralling antisocial career or in providing necessary

counselling/treatment/assistance for Maureen and the other two children.

Fourth, and very importantly in the context of subsequent events and the present

litigation, it gives the lie to subsequent CYFS attempts to use this history against

Maureen, either directly, as in Matich’s selective use of the odd occasion on which

Maureen faltered in coping with all that was heaped on her, or more subtly, as in later

references to Maureen having ‘a long history’ with the Service, implying that she had

been a longstanding failure and menace as an unfit mother.

So by February 2000, a situation existed in which Maureen and Hugh, indeed

the whole family, had had years of coping with immense difficulties and of

experiencing the failure of outside agencies, particularly CYFS, in addressing them.

They were wary of CYFS empty promises and undertakings and the futility of the

Service’s few actual actions. They were also aware that Maureen was already being

seen as something of a troublemaker, someone who rocked the boat incessantly.

CYFS, for its part, was amassing a file (not necessarily complete or balanced)

that would have indicated that his family was trouble; the children would cause

trouble in school and community and the mother (and Hugh too) would stir things up

to try to get what she wanted. This would have been indicated, that is, until the file’s

reader actually stopped to consider what Maureen’s agitations were about and were

aiming to achieve—usually to have CYFS or others give assistance to her children or

honour promises or undertakings they had already made but failed to deliver.

29

The Abductions

The Discipline: 9 February 2000

On the evening of 9 February 2000, Mark was disciplined physically at home.

This much is certain and uncontested. Almost every other fact in the account of the

next day is portrayed differently in the various accounts and reports given

subsequently.75

The reason for the discipline was for stealing $100 according to the Principal’s

statement 76 and ‘money’ according to the CYFS safety warrant application and

Principal’s original note,77 but for going into a woman’s office according to the CYFS

supervisor who interviewed him.78

The form the discipline took was of him being struck. This was being held down

by Maureen while Hugh struck him, but in 1 version also included being later

‘booted’ by Hugh. 79 The instrument used was originally said to have been a broom

handle, then a wooden pipe, then a length of bamboo.

Maureen’s version was that this was an event in a particular context, beginning

with Lance’s going off the rails and continuing with an escalating pattern of anti-

social behaviour from Mark.80 She had tried over the years to gain assistance from

CYFS (unsuccessfully), she had herself sought and gained some professional

assistance from various bodies as outlined above, she had tried to gain some increased

parenting skills herself when faced with yet another immensely difficult situation, and

she had already tried all manner of other disciplinary measures on Mark, ‘but which

came to mean nothing to Mark includ[ing] Isolation and Grounding, Denial of

Privileges, Sit in a Corner, Writing Lines, Long Talks and Explanations’. On the night

75 Maureen’s brief of evidence for the eventual criminal trials sets out much of the background and series of events. Doc 748. See also Hugh’s brief of evidence. Doc 754. 76 Peter McNair, Statement to CYFS, 21 February 2000. Doc 96 77 Elizabeth Matich, affidavit, 10 February 2000. Doc 98; Peter McNair, handwritten chronology, 13 February 2000. Doc 100. 78 Louise Cairney, report of interview, 10 February 2000. Doc 98A. 79 Peter McNair, statement, Doc 96. 80 See, for example, her affidavit of 2 June 2000. Doc 170A.

30

in question, the discipline had come only after Maureen and Hugh held a two-hour

discussion with Mark, and it was done in a formal and controlled manner.

The Uplifting of Mark: 10 February 2000

At 8:15 am on 10 February, Maureen phoned Mr Peter McNair, the Principal of

Tirohia School, Paeroa—and Mark’s classroom teacher—to tell him that Mark had

been given ‘a hiding’ for stealing the money. 81 Mr McNair subsequently altered that

version to say that she was informing him that Mark might tell him he had been given

the hiding—the implication derivable from the written document being that any such

a story would be a fabrication. 82 In his later affidavit, Mr McNair gave more detail,

that Maureen had told him that Mark had been disciplined on his buttocks, but that he

was now ‘making a joke of it and therefore might behave a bit irrationally that day in

front of other children’.83 However, his statement to Police on 17 July specifically

said that the stealing was ‘all she mentioned’.84 In none of his written accounts did he

state that he said what Maureen and Hugh would come to claim, words to the effect

that Mark needed some such discipline to halt the path he was already on, and in his

statement to Police, he commented: ‘I didn’t question her any more about it, I thought

it was strange her ringing, its not the normal thing a parent would do….’85 Maureen’s

own explanation is that she was phoning to inform the principal in case Mark then did

anything silly, or misbehaved, as the discipline had not after all had the desired effect

and he was already making light of it.

Mark was apparently fine at school during the morning—‘his usual self’86 and

Mr McNair ‘didn’t see anything untoward and he hadn’t mentioned it to any of the

kids’.87 Mr McNair stated he ‘wouldn’t have known anything about it until the

secretary Jeanie bought [sic] it to my attention’.88 However, his other statements to the

81 Peter McNair, chronology. Doc 100; P. McNair, statement to Police, 17 July 2000. Attached to Doc 218. 82 McNair, statement. Doc 96. 83 McNair, affidavit. Doc 209. 84 McNair, statement to Police. Attached to Doc 218. 85 McNair, statement to Police. Attached to Doc 218. 86 McNair, affidavit. Doc 209. 87 McNair, statement to Police. Attached to Doc 218. 88 McNair, statement to Police. Attached to Doc 218.

31

Police somewhat contradict this when he says that ‘Mark was pretty fidgety that

day’—but that he was a special needs student—and ‘he was a darn sight more quieter

[sic] than usual, almost withdrawn.’89 Either he was unchanged from usual as Mr

McNair said at the time, or he wasn’t, the second being what he said to the Police

alone and only when the criminal investigation was under way.

But at mid-day Mark was hanging around either the school office90 or a toilet91

while the other children went swimming. When spoken to by the school secretary, he

either said he did not want to go swimming as he had a sore bottom (and then

explained why),92 or that he did not want to be seen by the other children changing as

he had marks on his bottom. 93 He explained that ‘he’d had a hiding last night, and that

[?] had hit him with a broom handle and then he said that it was a rod’.94 He did not

ask to be excused from swimming as the CYFS affidavit says,95 nor were the marks

on him only discovered when he undressed as several later documents state. When the

other children were in the pool Mark changed in private and also went for a swim.96

He also told the secretary tha t everyone at the hospital had voted that he was a liar,

that while Hugh was hitting him he had been held by Maureen, and that he had been

‘booted in the bum’ by Hugh while he was in the shower—an allegation that seems

not to have been repeated at any other time.97 Having been advised of Mark’s story by

the secretary—who was his wife—Mr McNair spoke to Mark while on playground

duty and Mark said he had been ‘held over a table and hit with a broom handle’.98

At 1 pm, Mr McNair phoned CYFS about Mark and spoke to a caseworker, who

told him that she and another CYFS staff member would come to the school.99 Mr

McNair did not record then or in his later affidavit exactly why he felt he needed to

contact the Service, as he had not at that stage seen any physical evidence, nor was

Mark distressed. Perhaps it was merely Mark’s description of what he had been struck

89 McNair, statement to Police. Attached to Doc 218. 90 McNair, statement. Doc 96; Jeanne McNair, statement to Police, 17 July 2000. Attached to Doc 218. Jeanne McNair, testimony at criminal trial, p 24. 91 McNair, chronology. Doc 100; McNair, affidavit. Doc 209. 92 McNair, statement. Doc 96; Jeanne McNair, statement to Police. Attached to Doc 218. 93 McNair, chronology. Doc 100; McNair, statement to Police. Attached to Doc 218. 94 Jeanne McNair, statement to Police. Attached to Doc 218. 95 Matich, affidavit. Doc 98. 96 McNair, chronology. Doc 100. 97 Jeanne McNair, statement to Police. Attached to Doc 218. Mrs McNair confirmed at the trial that Mark had told her he had been hit with a broom stick and later booted by Hugh, and that these two factors were what had made he decide to report the matter to Mr McNair. Trial transcript pp 25-6. 98 McNair, chronology. Doc 100; McNair, affidavit. Doc 209. 99 McNair, statement. Doc 96.

32

with—probably ‘boom stick’ as later—which Mr McNair took to be ‘broom handle’.

In his statement to the Police, he said that the secretary had told him Mark’s reason

for not going swimming and since Mr McNair thought he could not ask Mark to ‘drop

his trousers’ he rang CYFS instead.100 At the trial, though, he made no mention of

having spoken to Mark and agreed that he rang CYFS ‘as a result of what your wife

had told you’.101 It should be noted, too, that Mr McNair was Mark’s classroom

teacher, but despite Maureen’s call and being thus alerted had not found anything

untoward about Mark’s behaviour such that he had needed to follow the matter up

during the morning’s school-time. One might think that if Mark had indeed been

struck with a broom handle in any serious way, the small boy would hardly have been

able to be joke or behave in a normal way for a whole morning and his worries would

have been greater than merely what other children might see.

The 2 CYFS staff members—Supervisor Louise Cairney and Social Worker

Correen Smaller—arrived at 1:40-45 pm, discussed the situation briefly with Mr

McNair and asked to interview Mark, which then occurred immediately. Mr McNair

was present during the interview. Mark was asked to show the persons present the

marks and showed one buttock, which had ‘bruising welts’,102 or ‘raised welts,

bruises’, 103 or ‘a raised welt’.104 The immediate response of the CYFS workers was to

want to take Mark away. They wanted to do so on the spot, but the principal insisted

that they return at the end of the school day with a warrant,105 or the more consistent

evidence of McNair himself is merely that he wanted them to inform Maureen before

they did so.106 There is no clear indication in Mr McNair’s four written accounts as to

why the CYFS workers believed Mark should have been uplifted so urgently and with

so little investigation of the situation—nor of why Mr McNair believed he should be

either. He was in no immediate danger, he was not distressed, nor was he substantially

injured. Mr McNair said in two accounts that the CYFS staff wanted to take Mark to a

doctor107—but this was not actually a priority for them as when they did take him they

simply left it to his aunt to take him to a GP the next day. The CYFS workers left the

100 McNair, statement to Police. Attached to Doc 218. 101 Trial transcript p 28. 102 McNair, statement. Doc 96. 103 McNair, statement to Police. Attached to Doc 218. 104 McNair, trial transcript, p 29. 105 McNair, affidavit. Doc 209. 106 McNair, statement to Police. Attached to Doc 218. McNair, trial transcript, p 29. 107 McNair, chronology. Doc 100; McNair, statement to Police. Attached to Doc 218. It was not touched on in his trial testimony.

33

school after the interview and Mark went back to class for the last hour or so of

school.

Social workers Elizabeth Matich and Saranna O’Dowd visited Maureen at about

2:20 pm ‘for the purpose of assessing Maureen’s ability to prevent further

maltreatment of Mark and to ensure Mark’s safety’.108 Presumably this would have

been done after the other two had seen Mark and established that there was a

perceived problem requiring action. At this time, Ms Matich said, Maureen said that

Mark deserved the beating—but Ms Matich made no comment as to whether Maureen

had justified that assertion and explained what had led up to it, nor how it had been

conducted.109 She also reported that: ‘Maureen did not accept that the injuries Mark

had sustained as a result of the beating, constituted physical abuse’.110 But at no point

in any of these records is there a report of how CYFS workers were defining ‘physical

abuse’. Nor is there any report of how the issue and definition, if any, were put to

Maureen, crucial issues in evaluating whether Maureen should have accepted the

point, especially in the context of Maureen believing that Mark had deserved it—an

issue never addressed by CYFS, it seems. Maureen refused to comment when asked

what she could do to guarantee Mark’s safety. 111 This was an extremely loaded

question and to answer it would have been to admit that he was presently unsafe,

which she had just denied, yet her abstention seems then to have been taken as some

sort of threat to repeat the ‘unsafe’ behaviour. When Ms Matich ended the interview

by informing Maureen that she would be seeking a Place of Safety Warrant in respect

of Mark, Maureen ‘told me to go ahead and do this and that this would be the best

option for Mark anyway’—which sounds to the casual reader much like uncautious

irony on the part of an understandably emotional Maureen, particularly when coupled

with her other reported comment that ‘if we were going to take Mark then we should

take Marion too because she gets hit as well’.112 Of course, the entire situation was

complicated by both Maureen’s previous history with CYFS, and her resulting low

opinion of them and both their threats and promises, and the immediate context of her

being at her wits’ end with regard to dealing with Mark. These contextual factors

counted for nothing, though, and the immediate result was that Ms Matich concluded

108 Elizabeth Matich, affidavit, 14 July 2000. Doc 235. 109 Elizabeth Matich, affidavit, 14 July 2000. Doc 235. 110 Elizabeth Matich, affidavit, 14 July 2000. Doc 235. 111 Elizabeth Matich, affidavit, 14 July 2000. Doc 235. 112 Elizabeth Matich, affidavit, 14 July 2000. Doc 235.

34

that ‘there were reasonable grounds to suspect that Mark had suffered and was likely

to suffer further serious harm’, and so she later applied for a place of safety

warrant.113

Maureen’s version of this encounter is somewhat different and supported by

Hugh as witness.114 She stated that Matich began with:

‘We’ve come to see you out of concern for Mark, and need to ask you, did you beat him up last night?’ I answered ‘no, but I disciplined him with good reason.’ Matich answered, ‘we see that as abuse, and therefore Mark is unsafe here and we are going to place him elsewhere.’ As Maureen tried to explain the difficulties with Mark, Matich kept cutting off

her explanations with ‘You have broken the law, Maureen, you have broken the law,’

and reiterations that Mark was unsafe with her.115 Although Hugh was in his office

twenty feet away, he could hear the raised voices and Matich’s repetition of her

statement that ‘You broke the law, Maureen.’116 Of course, it is not CYFS’s place to

determine whether the law has been broken, but that of the Police and ultimately the

courts—Matich had clearly jumped to a conclusion although she had not even seen

Mark herself.

In Maureen’s account, Serana O’Dowd seemed to be trying to calm the

situation—which Maureen describes as Matich deliberately trying to wind her

(Maureen) up—and that O’Dowd said that they only wanted to take Mark to Tania’s

for one night while they made inquiries. Maureen urged them not to do so as there

were other problems there, but was again dismissed, while Matich’s response to

Maureen’s insistence that they needed a warrant was: ‘We don’t need a warrant, we

have the power to remove children if we see fit, such that the child is unsafe, but we’ll

come back with a warrant’—and walked out. Maureen commented that during this

interview:

Matich kept avoiding my concerns and over-powering the conversation by saying, ‘we can’t stay long, we have to get back,’ and ‘what you have done Maureen is against the law and Mark is not safe.’ When Sarana (the other Social Worker) was trying to speak to me Matich kept on over-riding what she was trying to say and so Serana just sat there like an obedient puppy.

113 Elizabeth Matich, affidavit, 14 July 2000. Doc 235. 114 Maureen Reti, information to counsel, 5 May 2001. Doc 599. 115 Hugh’s draft brief of evidence. Doc 754. 116 Doc 754.

35

Later CYFS argument would be that Matich was merely securing Mark’s safety,

but these constant references by her to Maureen having broken the law make it clear

that she was taking it upon herself to adjudicate on the legal issue that Maureen and

Hugh were acquitted of in the criminal trial.

The CYFS workers returned to Tirohia at 3pm and uplifted Mark.117 They did

not show anyone at Tirohia School a warrant; they could not have done so because at

this time they had not even begun the process of getting one. Nevertheless, Mr

McNair handed Mark over to CYFS, apparently without any authority to do so. Mr

McNair’s accounts are unclear as to exactly what happened at the time of uplifting

and the CYFS accounts are silent. His chronology simply says ‘Mark was released to

CYPS who took him away.’118 His statement to the Police—which makes no mention

of any discussion at any time of a warrant—said that once he had been assured that

Maureen had been informed ‘I released Mark at that stage to the officer’.119 His

affidavit adds a deliberate misrepresentation made by the CYFS workers to gain

possession of the boy:120

At 3.00 p.m. CYPFS returned without a warrant and said they wanted to take Mark away for one night and that the mother had been informed. I released Mark into their custody with that understanding.

Of course, the intention was not at all to take Mark for only one night, which was

what O’Dowd had already told Maureen. CYFS—or at least Matich, if not her

colleagues—had already confronted Maureen and were intending to remove him for

much longer, perhaps permanently even at that stage. However, when this information

was incorporated into Maureen’s affidavit, Elizabeth Matich denied that she had ever

said to Maureen, during the course of her interview prior to the uplifting, that Mark

would be taken for only one night.121 But it had been said to Mr McNair by CYFS

personnel in order to convince him to release Mark to them. And it had indeed also

been said to Maureen. Maureen later explained that indeed it had not been Ms Matich

who mentioned the one night—so technically Ms Matich was telling the truth up to a

point. But Maureen’s account was:122

117 McNair, statement. Doc 96. 118 McNair, chronology. Doc 100. 119 McNair, statement to Police. Attached to Doc 218. 120 McNair, affidavit. Doc 209. 121 Elizabeth Matich, affidavit, 14 July 2000. Doc 235. 122 Maureen Reti, affidavit, 8 August 2000. Doc 269.

36

I continue to dispute Matich’s claims that she requested my co-operation for the placement of Mark whilst an investigation was carried out. Flatly there was no such mention of an investigation, her mind was made up to take Mark from the moment I saw her eyes and she opened her mouth. However Saranna O’Dowd at 2:15pm 10th February attempted to soften Matich’s bullying attitude by suggesting they keep Mark one night while they conducted an investigation. I felt strongly there was deception in that offer and they gave me no reason to think otherwise. Matich continued to dominate the discussion and intimidate me, without wanting to hear me, and left after a few minutes with a look of triumph in her eyes.

Thus both Maureen from the 2:15 pm interview and Mr McNair later, elsewhere and

independently confirmed the CYFS statement about taking Mark for one night only,

whether or not it was Ms Matich specifically who made it.

As to the question of the school principal handing over the child without a

warrant, this is emphatically not standard acceptable practice, even if he did know

there was a problem with the child and that the ‘receivers’ were CYFS staff. CYFS

staff are required by CYPF Act s 17 to investigate any complaint that a child has been

ill treated or neglected under s 15. Authorities state that ‘Orders under these sections

[i.e. ss 39, 40, 71, 101, 102 or 139] would authorise a social worker to remove a child

from the school.’123 But they take note of no other way of acting without this

authority. Consultation by the present writer with a very senior primary school

principal and the chair of the Wellington Primary Principals Association revealed that

standard procedure would be to demand either a warrant or at a minimum formal

documentation stating explicitly both the need to remove the child and the statutory

authority under which it was being done.

Maureen rang at 3:30 pm and asked Mr McNair where Mark was since he had

not been returned home by the usual taxi service.124 When he said that CYFS already

had the boy, she told him that she had refused to consent to him being taken and asked

if he had sighted a warrant.125 He told her that ‘CYFS had rung her and she knew as

much as I did’.126 Mr McNair phoned CYFS who told him that Maureen had been

informed Mark would be taken. 127 Being informed is of course not the same as giving

one’s consent.

123 J Hannan, P Rishworth and P Walsh, Education Law—continuing challenges (NZ Law Society seminar, May 2004), p 127. 124 McNair, affidavit. Doc 209. 125 McNair, affidavit. Doc 209. 126 McNair, statement to Police. Attached to Doc 218. 127 McNair, statement. Doc 96.

37

At 4:15 pm (or 4:30), Maureen again phoned Mr McNair. He told her he would

get CYFS to ring her. He phoned CYFS who told him they were trying to place Mark

with a relative and would inform Maureen. 128 Or he merely told her ‘it was all in the

hands of CYPS now’.129 Mr McNair in his statement to Police made no mention of his

after-school calls to CYFS, actions which might also suggest he was not entirely

convinced about how CYFS were acting.

Mr McNair in his affidavit also noted several procedural matters relevant to the

behaviour of CYFS and Maureen’s knowledge of what was happening to herself and

her child:130

At no time did I seek additional understanding or information from Ms Reti and I did not invite Ms Reti to sit in on the interview or discuss the matter with CYPFS Officers. The CYPFS Officers drove an unmarked car, and did not produce identification although I assumed they were legitimate representatives. CYPFS did not produce any Court- issued Warrants or Orders. At no time were the Police called to our School in relation to this matter.

Late that afternoon, CYFS applied for a Place of Safety Warrant under s 39 of

the CYPF Act 1989.131 The fax timestamps on the top of the document indicate that

this all took place after Mark was already removed from his school and in CYFS

custody. The form appears to have been faxed from the District Court in Waihi to

CYFS Paeroa at 3:40 pm and the completed form back from CYFS Paeroa to the

District Court at 3:52 pm. The warrant was issued by Sandi Purcell, Assistant Court

Manager, Department for Courts, Waihi. It is assumed that Ms Purcell had authority

to issue such a warrant; the present writer has seen nothing challenging her authority

to do so. The warrant declared that Mark Marriott was ‘suffering, or is likely to suffer,

ill-treatment, neglect, deprivation, abuse, or harm’.

The warrant authorised Mark’s removal or detention and placement in the

custody of the Director-General of Social Welfare, and for his examination by a

doctor under s 53 and subject to the restrictions in ss 53, 54 and 55 of the CYPF Act

1989. It also required the social workers to comply with s 124 of that Act.

128 McNair, statement. Doc 96; McNair, affidavit. Doc 209. 129 McNair, statement to Police. Attached to Doc 218. 130 McNair, affidavit. Doc 209. 131 Place of Safety Warrant, 10 February 2000. Doc 99.

38

The application for the warrant was supported by an affidavit sworn by

Elizabeth Matich, a CYFS supervisor in Paeroa.132 The information contained in it is

not consistent with the principal’s reports and appears to have been presented in such

a way as to maximise the reader’s negative impression of Maureen and Hugh.

Specifically:

• Para 3: the information was said to have been sourced from departmental

files, her own personal knowledge, and professionals who had had

contact with the family. None of these were specified.

• Para 4: despite such apparently wideranging sources of information and

her own supposed knowledge of the situation, Ms Matich was unable to

say whether there were any other children ‘within this relationship’.

Even if ‘this relationship’ refers only to that of Maureen and Hugh, at

this time CYFS Paeroa appears to have been unaware of the existence of

Patricia, indicating less than detailed knowledge and that there were no

concerns with regard to her. Lance, about whom they knew so much,

was similarly invisible.

• Para 5: Ms Matich’s personal knowledge was so limited she did not even

know the name of the principal of Mark’s school. Mark did not ask to be

excused from swimming, but was loitering away from the pool, and he

did not ask to do so because he was in too much pain. Mr McNair’s

accounts are that the boy was embarrassed about the marks and of course

he did indeed go swimming once there was no-one to see him getting

changed. There was no question of continuing pain being too great, nor

was the topic even mentioned in the supporting social worker’s report.

• Para 6: Ms Matich knew at this time that a bamboo cane had been used

in the discipline. In later documents she would revert to the more violent

sounding misunderstanding about a broom handle.

• Para 7: Ms Matich had visited Maureen at the Fifth Dimension Trust.

Maureen admitted having disciplined Mark and refused to accept that the

discipline was ‘not appropriate’. Ms Matich noted that Maureen had

refused to consent to Mark being placed in Social Welfare custody, or in

whanau care’ ‘while we investigate’. Three points emerge here. There is 132 Elizabeth Matich, affidavit, 10 February 2000. Doc 98. It later appeared that it may have actually been written by Louis Cairney and only signed by Ms Matich.

39

no mention here of why Maureen might have objected to these options,

for example her knowledge that the various whanau members would not

provide suitable or safe care. Secondly, there is an indication here to the

court that CYFS were undertaking an investigation, but what would be

investigated is not specified (given that the facts were already known and

admitted) and in fact no investigation ever took place. Thirdly, the entire

matter appears to hinge on Ms Matich’s conviction that the discipline

was ‘not appropriate’ versus Maureen’s that it was and that it was

deserved. Subsequent court decisions would eventually decide in

Maureen’s favour, at least as to whether it was reasonable discipline or

abusive.

• Para 8: this issue reappears again here. What Maureen viewed as

discipline, Ms Matich categorised as ‘physical abuse’ with no further

knowledge of how any such hitting was done, under what circumstances,

or how often. There is no written record that Maureen acknowledged all

of this, certainly on 10 February 2000, apart from the one incident noted

by Glenburn, and the present incident.

• Para 9: Ms Matich then affirmed that in her professional opinion Mark

was ‘a child who is suffering, or is likely to suffer, ill treatment, neglect,

deprivation, abuse or harm’, and that he was or was likely to be harmed,

ill-treated, abused or seriously deprived, such that his development or

physical, emotional or mental well-being was endangered. These may

well have been a form of words to comply with the requirements of the

Act, but none of these apply to Mark other than Ms Matich’s perception

of the ill treatment or harm. Taken together they create the impression of

a situation much worse and sinister than it actually was.

Attached to Ms Matich’s affidavit was a report by Louise Cairney of the CYFS

interview with Mark at Tirohia School that afternoon. 133 Mark said he had been hit at

least 8 times. It took some questioning to establish that what he had been struck with

was a bamboo cane, not the broom handle that kept appearing in various accounts. He

stated that both Hugh and Maureen had struck him within that total number. He also

said that generally he was hit ‘lots of times’ by both Maureen and Hugh, on his head,

133 Louise Cairney, report, 10 February 2000. Doc 98A.

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his bottom and over his body and that a variety of implements were used:

broomsticks, bamboo, hands and wooden spoons. He showed them his current marks

which included ‘several linear bruises across his cheeks and red welts, while the skin

appeared ‘lacerated or broken at some points’. Ms Cairney also reported that: ‘Mark

requested that we organise for him to go and live somewhere else.’134 This request

from Mark was strangely not mentioned in Mr McNair’s reports, although it seems

rather significant and was important enough to be relied on as a reason for removing

Mark.

The warrant was delivered to Maureen at her home at 5:30 pm by Elizabeth

Matich and Saranna O’Dowd. They operated very anonymously, travelling in an

unmarked car and carrying no identification other than a business card. Ms Matich

refused to disclose to Maureen any information concerning what they had done with

Mark.135 Again, Maureen’s account gave additional colour to the skeleton facts:136

Matich sneered as she approached me and waived [sic] a piece of paper in front of me and said, ‘we’ve got Mark and here’s the warrant.’ I asked, ‘where have you taken him, I hope it’s not to my sister’s place.’ Matich answered, ‘I’m not telling you.’ I replied, ‘He has special needs for God’s sake, I need to know what sort of environment he’s in and I need to get stuff to him’…. As Maureen was shocked at her cruelty and worried for Mark, she reacted by

calling them hypocrites for their apparent prejudice, having already convicted her,

‘and in disgust and anger I said, “you may as well take Patricia with you now since

you have already taken Mark because I discipline her also.”’ Matich said ‘we are not

here for her, only Mark.’ In response to Maureen’s continued questions about Mark’s

whereabouts, ‘Matich walked back out to her car, and as she was climbing into her

car, she said, ‘ring me tomorrow and I might tell you depending on how I’m feeling.’

Hugh and Patricia both witnessed this ‘interview’. Maureen finally found out where

Mark was on Sunday 13 February when Tania admitted that CYFS had told her not to

tell Maureen (she had already lied to Patricia).

A key question that immediately arises from this is that given the nature of the

circumstances, with the knowledge that Mark had some special needs, and that

Maureen’s ‘crime’ had been of a particular nature, why Matich was so obsessed with

keeping Mark’s whereabouts a secret from Maureen. Maureen was not a stalker, she 134 Louise Cairney, report, 10 February 2000. Doc 98A. 135 Hugh Smith, MS notes, 10 February 2000. Doc 99. 136 Maureen Reti, information to counsel, 5 May 2001. Doc 599.

41

had no history of any sort of action that would threaten Tania and family or Mark at

Tania’s, she did not apparently fight Mark being taken temporarily (overnight?) so

much as the placement with whanau and especially Tania. Mark was in no immediate

danger and was not distressed at all that day. It is hard to avoid the conclusion that

this was done by Matich simply because she could, motivated by an antipathy towards

Maureen—as Maureen and Hugh have claimed all along.

On the following day, Friday 11 February, Mark’s aunt Tania Mapu took him at

the request of Ms Matich to be examined by Dr Robert Hilligan at the Hauraki Plains

Medical Centre, Ngatea.137 It is not immediately apparent whose idea this examination

was: Hugh later stated that it was Tania’s initiative, completely independent of

CYFS.138 Certainly, CYFS arranged no medical examination on the day of the

uplifting, which would presumably have been important evidentially, and if they were

really concerned about the physical damage Mark was suffering, while the Police

seem to have done nothing but take photos. Most of the examination report was in fact

an often inaccurate recounting of the events of the previous couple of days, and was

of no medical relevance.139 Dr Hilligan stated that Mark had stolen $20 (when it was

$100), that it was with a broom stick (when it had already been ascertained it was a

bamboo stick), that the incident had come to light when Mark told his teacher (when it

was Maureen who had informed the principal prior to the start of school). When he

saw the doctor, Mark claimed that he was in discomfort and unable to sit without pain.

This may well have been so, as it was still only a day and a half after the disciplining,

but it cannot be made too much of because at school on the day befo re Mark had been

sitting all day and had gone swimming. The doctor found:

multiple linear bruising, approximately ½ to 1 cm in width, consistent with being beaten with an object, such as a broom handle. There was no

137 Dr Hilligan to Elizabeth Matich, 14 February 2000. Doc 105. The is some confusion as to when this examination took place. The letter is dated 14 February, but says Mark was examined ‘today’. Later, though, it explicitly says that the examination took place at 11:10am on 11 February. The answer appears to be that the examination took place on the 11th, which was a Friday, and that Dr Hilligan drafted or dictated the letter that day, but that it was not typed up until the next business day, which was Monday 14th. Unfortunately, it was not then proofread to correct the impression given. 138 This, of course, cuts both ways without evidence of why Tania d id it. It might be argued that she was taking him because he was so badly injured, which would support CYFS. Or it might be that she was seeking to gain independent evidence of how limited his injuries were, which supports Maureen and Hugh. 139 As was the s ame portion of Dr Hilligan’s later affidavit, 10 July 2000. Doc 213. One supposes that his source of information was Tania Mapu, who was not acquainted with the full facts, or Matich, who would also then seem not to have a grasp on them.

42

other visible injury and he said his only discomfort was in his buttock area.140 He also sent away a urine sample to check for blood in the urine, which would

have indicated more extensive internal injuries, but there was no trace of any. 141

Some points to note are:

• The width of the bruising. Bruises spread and if they were only this

width after that lapse of time they must have been no wider earlier. Such

a width seems unlikely to have been consistent with hitting with a broom

handle, as Dr Hilligan says, since broom handles are much wider than

that. For some reason, without explanation in his affidavit—made five

months later—Dr Hilligan had changed his statement regarding the

width of the bruises to ‘broad 1-2 cm linear bruises ... consistent with

being beaten with an object such as a broom handle’.142 As there can

have been no way for him to re-examine and evaluate those bruises, the

most obvious but least palatable reason for such a change is that Dr

Hilligan had himself realised in the interim that the observations made

on the spot did not fit with the broom scenario and he had altered the

reported size accordingly.

• The focus on the broom handle. This is a mistake and was known to be

so from the time of Mark’s very first interview with CYFS on the

previous afternoon. It was, however, still being repeated in much later

CYFS and related evidence, such as Ms Matich’s 14 July affidavit,

despite Ms Cairney having identified from the outset that bamboo was

used.143

• Mark was experiencing discomfort only in the buttock area, which was

where the bruising was located. There is no evidence in either of Dr

Hilligan’s reports, nor any other observer’s, nor apparently the photos

taken by the Police at the time, to support Mark’s initial extravagant

claims of having been struck more often and over many other parts of his

140 Dr Hilligan to Elizabeth Matich, 14 February 2000. Doc 105. 141 Hilligan to Matich, Doc 105; Robert Hilligan, affidavit, 10 July 2000. Doc 213. In the affidavit he stated: ‘His urine was tested and found to be normal. He had no other obvious injuries.’ 142 Hilligan, affidavit. Doc 213. 143 Elizabeth Matich, affidavit, 14 July 2000. Doc 235.

43

body (claims so obviously false that they should surely have undermined

the credibility of many other things he ‘disclosed’).

• Dr Hilligan observed no lacerations or broken skin as reported the

previous afternoon by Ms Cairney (but not by Mr McNair). What had

happened to them in the meantime?

• There were no other injuries (or discomfort). Yet the story of additional

punishment Mark told somewhat contradicts the lack of any physical

indication.

• Later discussion of the photos during the assault prosecution indicates

that on 10 February Mark had marks on his skin in addition to the weals

from the bamboo stick and that these had resulted from a tree-climbing

incident some time before. Dr Hilligan made no differentiation between

the two sets of marks in his report—perhaps those were the larger

‘broom-handle sized’ marks, if in fact any of those ever existed.

The findings of Dr Hilligan from the examination and blood tests that there was

no indication of any abuse other than the marks from the caning seem to have been

overlooked in subsequent CYFS/Police depositions and reports. Yet surely that is

physical not opinion evidence that goes directly to the issues of abuse and Maureen’s

parenting, the two planks on which the entire CYFS antagonism rested.

The photographs the Police intended adducing as evidence in the assault

prosecution that would result from all this are attached to Doc 581. They do show

weals on the buttock region from a small number of cane strokes. They do not show

damage done to other parts of Mark’s body and face where he claimed to have been

struck repeatedly also, and which clearly the Police would have photographed and Dr

Hilligan reported had they existed. They do not show there to have been any

lacerations or broken skin, which is also how Dr Hilligan reported the next day and

contradicts Cairney’s statement that there were lacerations at the time of the school

interview and made in support of obtaining the warrant.144 As an aside, an adult male

wielding a bamboo cane would not have to strike that hard to create lacerations and

break the bare skin of a young boy. The present author in a former incarnation was a

teacher in a school that including caning in its disciplinary repertoire not many years

144 Note also that the other person present at the initial inspection of Mark’s injuries was Peter McNair, who said that there were ‘raised welts and bruises on his bottom’. Affidavit, 14 September 2000 eg Doc 581.

44

prior to this ‘assault’, and he and other teachers sometimes drew blood when caning

teenaged boys wearing heavy school shorts, not bare skin. Either Hugh is feeble and

weak-wristed or he was not striking Mark with much force.

Mark was enrolled at Ngatea School on Monday 14 February. His enrolment

form notes that Mark has ADHD and had been receiving Ritalin treatment,

information that would have been supplied by Ms Matich who was the designated

contact person. 145 Yet there was never any move made by CYFS to ascertain Mark’s

ongoing needs for treatment. On Tuesday 15 February, CYFS phoned to find out

about the specialist education support Mark was receiving. On 16 February, Mr

McNair met with Maureen and Hugh over the concerns they had regarding the

placement of Mark with Tania Mapu’s family.146 It is hard to know what such a

meeting might have achieved, given that Mark had been removed from the school

altogether, but at the time Mr McNair was probably the most influential person they

had contact with regarding Mark. CYFS had told Mr McNair on Friday 11 February

where Mark had been placed, but they were withholding that information from

Maureen. 147 Mr McNair also noted that the ORS funding was because of foetal

alcohol syndrome, resulting in Mark’s many antisocial behaviours, which was not the

case.

There was a professional interview with Mark at 2pm 14 February in Tauranga,

conducted by Ms Fiona Strange at the CYFS offices. This interview, its accuracy and

its ultimate admissibility were the subject of extensive argumentation when it finally

came to be produced as actual evidence for the District Court. Many trenchant

criticisms of its conduct and the quality of the interviewing were made by Matthew

Goodwin, Maureen’s criminal counsel at the time of the trial.148 However, in its raw

form, and without critical appraisal even when huge swathes of it were patently

wrong, absurd or contradicted by other evidence, it was a cornerstone of the CYFS,

Police and prosecution dealings with Maureen and Hugh for the next year and a half.

The first point, on which Mr Goodwin particularly focused, was that it was

immediately and repeatedly apparent that Mark simply was not telling the truth for

some reason, yet Ms Strange persisted and accepted whatever he said even when

patently false; he even clearly failed the ‘truth test’ she began with, yet she failed to 145 Enrolment form, 13 [sic] February 2000. Doc 102. 146 P. McNair, notes 11-16 February 2000. Doc 101. 147 P. McNair, notes 11-16 February 2000. Doc 101. 148 See Doc 730.

45

perceive this and proceeded without hindrance. This point was canvassed in

considerable detail for the trial by Hans Laven, a registered psychologist, who had

also viewed the videotape as it related to Ms Strange testing Mark’s truthfulness, and

concluded:

In summary, Mark’s responses suggested that he did not understand the concepts of truth, lie and promise. In my opinion there was little evidence that he appreciated the gravity of the interview, that he had developed a commitment to maintain the utmost attention to accuracy and truthfulness, that he was capable of making a promise to tell the truth or that he had made a solemn promise to tell the truth. 149

Yet despite the responses Mark gave and his wayward behaviour for her, Ms Strange

persisted with the interview, and CYFS and other professionals on their side persisted

in placing complete reliance on it. The present writer has viewed the transcript

although not the videotape (which of course provides additional visual information)

and agrees completely with Mr Laven’s professional opinion of the inadequacy of

both Ms Strange’s questioning technique and Mark’s answers to often ambiguous and

pre-cued questions.

Mark began by telling her false information about how bad his time at Tirohia

School had been, that it had no swimming pool or playground, that the children had to

stay inside and pick up rubbish, but that by contrast his new school—Ngatea—had a

big field and two swimming pools.

Mark admitted stealing the money from Hugh’s office (p 9), spending it with

friends, then denying he had taken it, until finally admitting it. He said this time that

he had received 10 whacks. Ms Strange never understood that what Mark was talking

about being hit with was a bamboo stick, but got no further than a ‘boom stick’, made

of wood with a hole at each end. Mark did repeatedly correct her when she

misinterpreted it as a broom stick (eg pp 10, 28). After describing Hugh giving him a

number of strokes of the bamboo cane on his hands, bottom and knees, Mark then told

of Maureen holding him upside down in the air by the foot and whacking him another

six times with the cane. He said he was crying, but it was because his neck was sore

where Maureen was holding him down over the edge of the kitchen table (p 20). He

denied having been to the doctor, although he had seen Dr Hilligan (p 32). He was

unequivocal in stating that although he had had many hidings, this was the worst (p

149 Hans Laven,, supplementary brief, 18 August 2001. Doc 746.

46

35) and that this was the only time the bamboo stick had been used on him (p 36). He

reiterated this, that this was ‘the first hiding I have had in my whole life time, the

hardest hiding in my whole life time’ (p 42). He described only one other in

Manurewa, when Maureen had banged his head against a wall for playing with

matches (and that he had burned down a lady’s house through playing with matches).

Mark remembered that ‘Dad’ did the most hitting, but had jumped to remembering

David Marriott giving Maureen a black eye, and then he specifically said that Hugh

had not given Maureen a black eye (pp 39-40). He also reported that a policeman,

who had been present when CYFS ‘dropped me off’, had told him they were going to

arrest Maureen (p 43).

A different typescript of this interview (but not an exact typescript of the

conversation, more like notes), together with photos of Mark’s injuries and his

drawings of the ‘boom stick’ and where he was struck, were included in Police

materials leading up to the charging of Maureen and Hugh. 150 At the conclusion of

that later typescript, after the statement that he had not seen Hugh give Maureen a

black eye (NB which is emphatically not the same as the above transcript statement

that Hugh had not given Maureen a black eye) there was the following:

Q. Has there ever been any blood? A. I’ve had blood come out of my bottom, the part where you go

wee wees and pooh poohs. There was blood coming out of there.151

On 15 February 2000, an application was made in the District Court at Waihi by

Elizabeth Matich, seeking a declaration that Mark, then aged 9 years and 9 months,

was ‘a child in need of care or protection, pursuant to Section 67 [of the CYPF Act

1989]’.152 The two reasons specified were:

a) that Mark was being, or is likely to be, harmed (whether physically, or emotionally or sexually), ill-treated, abused or seriously deprived (Section 14(1)(a)), or

b) that Mark’s development or physical or mental or emotional well-being was being, or was likely to be, impaired or neglected and that impairment or neglect is, or is likely to be serious and avoidable (Section 14(1)(b))

The application also relied on Section 70(2)(a) and (ba).

150 Doc 218. 151 Interview typescript, attached to Doc 218. 152 Notice of Application, 15 February 2000. Doc 106.

47

Although the application for declaration stated that the action to be taken in

relation on any such declaration was ‘to be determined’, in fact Ms Matich

simultaneously filed an ex parte application under s 78 (2)(a and b) for Mark to be

taken into Social Welfare custody. Her preferred course of action was actually already

determined.

The application for custody was filed ex parte because ‘the delay caused by

proceeding on notice might entail undue hardship to the child or entail risk to the

personal safety of the child in reliance on Rule 54 (1)(a and/or b) CYPF Act 1989.’

How this danger might occur was not explained.

The two applications, for the declaration and the custody order, were supported

by a single piece of evidence, an affidavit by Ms Matich herself, sworn on 15

February 2000, the same date as the applications were made.

Simultaneously with the applications for declaration and custody order filed in

relation to Mark, Ms Matich also filed identical applications in relation to Patricia,

then aged 10 years and 9 months. The same allegations about the actual or potential

harm were given as the reasons for the application and the supporting evidence

likewise consisted solely of Ms Matich’s affidavit.

Ms Matich’s affidavit summarised a number of the events of the difficult history

of the Marriott family:

• She began with 1991 when Maureen had sought assistance with the

family given her husband’s serious illness, leading to her having ‘a

breakdown’, a more accurate description of which was not supplied. No

further details regarding the abusive relationship David Marriott inflicted

on Maureen and his children were given, nor of his stroke,

hospitalisation or death, leaving the impression simply that Maureen was

incapable of coping.

• In 1993, Lance’s school had reported concerns about him, leading to

Lance alleging that Maureen was leaving him at home alone in charge of

the small children while Maureen went out partying. Again no mention

was made of the father, nor of any action having been taken at the time;

the allegation and implication were left hanging.

• In 1996, a SES psychologist had reported Mark behaving in ways

suggestive of his having been sexually abused. Ms Matich’s mention left

48

the allegation unresolved, but also blamed some of Mark’s problems on

Maureen’s abuse of alcohol and drugs when pregnant. Mark had been

referred to Campbell Lodge. No mention was made of how the

authorities had been alerted to the problems.

• Next was a mention of Glenburn’s report in 1998 of Maureen having told

them she had hit Mark. Although Ms Matich did report Maureen’s

remorse, there is no mention of any of the other events of the time,

including Maureen’s having struggled without CYFS assistance to gain

Glenburn treatment and so on—nor of the struggles she was having over

Lance at the time. Maureen was about to enter a detox programme and

the small children were going into care with Baptist Family Services.

• In March 1999, Glenburn had called a Family Group Conference as the

children had been in BFS care for 56 days. The resulting plan had the

children remaining in BFS care for a period longer and for Maureen to

have a drug and alcohol assessment and for the children to have a CYFS

assessment. Ms Matich did say that CYFS had no record of either of

these tasks having been completed—which seems a rather large gap and

a failure to undertake important tasks for which CYFS was responsible,

and which if undertaken might have headed off the problems as they then

emerged. This would seem to be another situation in which CYFS failed

in providing preventative support and later blaming Maureen as solely

responsible for events as they unfolded.

• Patricia had gone in May 1999 to stay with her aunt Alice Reti in

Rotorua, but had returned to her mother several months later, where she

had remained until this time. Ms Matich’s ‘However’ implies that

Maureen had repossessed Patricia in defiance of a whanau hui’s

decision, but includes no information as to the terms of that whanau

hui’s decision, such as the term for which Patricia would go to Alice’s.

• In September 1999, a SES psychologist [Ms Gamby] had raised concerns

that Maureen ‘was leaving’ Mark in the care of Carilla [i.e. Camellia]

Reti and her partner, and that they had made him scrub the kitchen floor

until 3am to remove burn marks, as well as withholding food from him.

Ms Matich did not say why Maureen had been doing this, nor whether

49

the allegations were true, or even whether Maureen knew anything of

them. She did say that CYFS had not followed up on the report, so

presumably they had not believed it, or not thought it very serious—in

either case why then mention it now—or once again simply failed to

assist in a preventive capacity. There is no point to para 10 apart from it

simply being prejudicial towards Maureen in her capacity as a caring

mother.153 Camellia would later explain that care and that none of the

allegations made about it were true apart from the floor scrubbing (which

was another non-violent attempt to make Mark deal with the results of

his fire-starting misbehaviour and was not at 3am).154

• The removal of Mark was dealt with in cursory fashion in para 11,

covered by a reference back to the 10 February affidavit.

• Ms Matich described her visit to Maureen on the afternoon of 10

February in a way which portrayed Maureen as entirely hostile and

uncooperative (para 12). She did not say why Maureen objected to Mark

staying with whanau. She made no allowance for any human reaction to

social workers turning up at Maureen’s door out of the blue and saying

they were in the process of taking away her son. She misleadingly

portrayed the removal as temporary, ‘while we completed our

investigation’, as if they were actually going to conduct some sort of

investigation. She reported Maureen as saying they should take Patricia

too as she also got hit, portraying Maureen as hostile and leading to the

present custody application. She did not even get Mr McNair, the school

principal’s, name right. She mentioned seeing Patricia at the house at the

time of the visit—again on its own, without explanation such as Patricia

being ill, this portrayed Maureen as irresponsibly keeping her child at

home when she should have been at school.

• The placement with Tania Mapu, objected to by Maureen for substantial

reasons, was presented as neutral and hearsay about Mark and Patricia

153 See below for the psychologist, Joy Gamby’s, formal statement about this dated 3 May 2000 (Doc 153). Apart from the concern that ‘such a young couple should have responsibility for a boy with such a history of disturbance’, which was a concern directed at Maureen’s leaving him with them, Ms Gamby’s report actually impliedly criticises/shows up deficiencies with CYFS rather than Maureen. Ms Matich’s version in the affidavit once more ‘spins’ the matter against Maureen. 154 Camellia Reti, affidavit, 17 July 2000. Doc 241.

50

being hit frequently was casually dropped in without substantiation (para

13).

• Dr Hilligan’s report was appended (para 14), and his inaccurate

comment about the broom handle was reproduced without amendment,

although it contradicted the evidence that it was bamboo, included in Ms

Cairney’s statement supporting the previous affidavit.

• In the paragraph summarising Mark’s interview with Fiona Strange (para

15), Ms Matich repeated the incorrect statement that Mark had said he

was beaten with the ‘broomstick’, although, as is clear above, Mark had

been at pains to correct Ms Strange and say that it was a ‘boomstick’, not

a ‘broomstick’.

• Without pausing to consider the likelihood of this, Ms Matich wrote

(para 15) of Mark having ‘disclosed’ that Maureen had held him upside

down off the floor by his feet while further beating him with the

broomstick. Her statement that this was the worst of a number of hidings,

while not exactly incorrect, is misleading. How well had she actually

read the transcript—or was she in pursuit of another agenda?

• She then said that Mark had said that ‘Hugh is the one who hits him

most.’ This is unequivocally incorrect—as noted above Mark explained

clearly that it was his father, David, who had done the most hitting (p 39)

and that Hugh had never given Maureen a black eye (p 40)—evidence

that things were actually better now than they had been when Mark was

little.

• The next statement in para 15 is either complete fiction on Ms Matich’s

part, or the transcript of the interview with Ms Strange that is Doc 103 is

incomplete, despite being consecutively numbered. Ms Matich stated

that Mark told Fiona that ‘Maureen puts a big pipe up his bum to take the

junk out of his stomach. Mark said that the gas takes the junk out. Mark

referred to this as being a cleansing.’ Nowhere does this or anything like

it appear in the interview transcript. Was this a deliberate untruth on Ms

Matich’s part? Even if Mark had told someone this at some other time,

giving a child an enema is of itself hardly evidence of abuse, particularly

since Ms Matich knew well that he was also receiving therapy from Fifth

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Dimension. Left as it is though, not only is it untrue, but leaves an

impression of sadistic and perhaps sexual abuse.

• Ms Matich then recounted the interview she and another social worker,

Sharon Blisset, had had with Patricia just that day (para 16). The

impression Ms Matich conveyed of the interview in her affidavit was

somewhat different from the principal, Mr Pratt’s. The stick being

bamboo was clarified yet again by Patricia, although ignored by Ms

Matich who nevertheless said that Patricia was disciplined in the same

way as Mark. Ms Matich said Patricia told them she sometimes felt like

running away after being disciplined, but Mr Pratt’s version was ‘Do you

feel unsafe at home? No.’ She ignored Patricia’s statement that it was

‘Mum’ who disciplined her, not Hugh, despite already having made the

statement about Hugh being the one to mostly hit Mark. There are

additional ‘facts’ in Ms Matich’s affidavit that are not reflected in Mr

Pratt’s notes, discussed below, nor did she pay any attention here to

Patricia’s statement that Mark was laughing when she came home from

athletics.

• Para 17 set out three ‘estimations’ that Mark was ‘highly vulnerable’ at

home, and should therefore be taken into Social Welfare custody.

Vulnerable to what is not explained, which should have been done given

the extremely broad catch-all terms of the applications fo r the declaration

and custody.

• Secondly, although in her own evidence Ms Matich had stated that this

was the only time either child had ever received such a hiding, the

‘estimation’ was that a re-occurrence was ‘highly likely’. This

‘estimation’ was based on a ‘pattern of child maltreatment’ by Maureen,

which the evidence cited does not actually show as much of the

information set out does not go to this point at all, and nowhere is a

‘pattern’ established’. It was based also on Maureen’s ‘belief that Mark

deserved the hiding he got’, whereas this affidavit says nothing about

why he was disciplined to go to the issue of desserts, there was no

evidence explicitly contradicting Maureen’s belief, and to this point in

proceedings the only countervailing point of view was Ms Matich’s own

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where she had argued with Maureen on the day that it was inappropriate

and broke the law. Thirdly, it was based on ‘Maureen’s belief that the

use of moderate force is an appropriate form of discipline’, which

perhaps does go to the likelihood of re-occurrence, but does nothing

more than imply that Maureen was wrong to think this way. It may be

noted that the Tauranga District Court eventually agreed with Maureen,

not Ms Matich, over this.

• The third estimation was that future episodes were likely to be severe

based on ‘the appearance that the pattern of intensity of harm inflicted on

Mark appears to be increasing’. What pattern? There was only one

incident and the incidents mentioned through the affidavit seldom have

relevance to the point. Arguably the harm resulting from this formal

caning was less than the head-banging long before and prior to Maureen

receiving treatment, so the ‘pattern’ was trending down. Again this

ignores the unique reason for the discipline being inflicted; the scale of

Mark’s ‘offending’ had also reached a new level.

• The affidavit concluded with a note that the Place of Safety Warrant

would expire that afternoon (para 18), which gives the motive for the

rush at this time as then Mark’s retention would have been without the

warrant’s cover.

• Ms Matich also said that she was seeking the declaration and the ex parte

custody order ‘because I believe that the delay that would be caused by

proceeding on notice would or might entail undue hardship or entail

undue risk to the personal safety of Mark and Marion’ (para 19). At no

point in the affidavit was a need for such urgency addressed. The

violence in the trigger incident had been the result of a particularly

serious offence by Mark, no such violence had ever been offered

Patricia, and Mark was out of the home in a location unknown to

Maureen. Furthermore, Ms Matich contradicted her own sworn statement

here by waiting another 6 days before moving to ‘rescue’ Patricia from

this situation that was supposed to be entailing such undue hardship or

risk of safety to the girl.

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The use of this affidavit to support the retention in custody of Mark is one thing,

gravely flawed though it was. However, the same affidavit was also used as the sole

support for the uplifting and placing in custody of Patricia as well. Although the more

contextual paragraphs provide some background—with the same enormous caveats as

discussed above in relation to Mark—little of it has any direct relevance to Patricia.

The references in paras 8 and 9 to Patricia being sent to BFS and Aunt Alice provide

no evidence of her being in any danger. The reference in para 12 to Maureen saying

she had hit Patricia too is of small use without context for the saying or the hitting.

The only direct evidence is in para 16 and as already noted Ms Matich’s version is

rather more negative than Mr Pratt’s.

Furthermore, Mark’s evidence to Fiona Strange had been that although he got

whacked ‘all the time’, Patricia did not (p 24). That suggests she was not in the same

‘danger’ that he was—if one believed Mark—which clearly Ms Matich did in other

matters that better suited her purpose.

Also, Ms Matich’s affidavit appears to have contained other false information.

Tania Mapu later swore affidavits in support of Maureen and the children. In one she

specifically challenged Ms Matich’s para 13 and its report that Tania had said both

children were ‘frequently hit’. This was a substantial misrepresentation, deliberate or

otherwise, of what Tania had said:155

I remember telling Sarana O’Dowd in March [NB not in mid-February] that our family was concerned for Maureen and the two children because of what Maureen had been through in trying to help Mark grow into a better person because he can be a very difficult child to handle through these times. I did say that Maureen had hit her children but I say that I have never witnessed myself anything more than a correction that most parent use from time to time. I do know that I DID NOT say she frequently hit her children. I also told Serana that we all have hit our children for a reason.

Later documentation indicates that although this affidavit was sworn by

Elizabeth Matich it may well have been Ms Cairney who wrote it. I am unsure as to

the implications of this. On the face of it, surely an affidavit is sworn as the solemn

evidence of the person making it, not of their adoption of someone else’s information

and allegations.

Ms Matich later stated, concerning this Custody Application:

155 Tania Mapu, affidavit. Doc 233.

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I am of the opinion that Maureen Reti was given a reasonable opportunity to explain how she could keep Mark and Marion safe. Maureen did not acknowledge that Mark’s beating was a form of maltreatment. Maureen was not willing to keep Mark and Marion safe.156

This ‘reasonable opportunity’ consisted—even in the much later context of the

14 July affidavit—of the single surprise visit on the afternoon of 10 February, which

Matich herself by all accounts cut short due to their need to be doing other things. The

term ‘form of maltreatment’ is a prejudicially loaded one without a definition of

‘maltreatment’ and an apparent presumption that an action that leaves temporary

marks on the skin is ipso facto maltreatment. Further, that 10 February argument

apparently did not even mention Patricia until Maureen’s unguarded parting shot, so

she had no opportunity at all to defend or explain herself with regard to Patricia. The

final statement is a complete travesty of Maureen’s attitude regarding her family, as

was well known to CYFS. Again the definition of ‘safe’ is left completely open and it

ignores and/or misrepresents the previous decade of Maureen’s dealings with the

Service.

As a comment on Ms Matich’s affidavit, Hugh observed in his 17 March

application to the Family Court to be appointed a Lay Advocate:

The presentation of material stated therein is presented out of context of the true picture and as such reflects practically the opposite of the true circumstances of this family and the intentions of Maureen when volunteering information which has obviously been transposed to file not in the same light.157

A reader of the whole body of documentation, including that generated by

CYFS themselves and the two principals, comes to the same conclusion as Hugh did.

This was a partial telling of the story in both senses of the word. It was partial in that

it omitted many crucial and influential aspects of the context, including the domestic

stress being caused by Lance, or the numerous attempts Maureen had made to have

CYFS engage with her needs and those of her family in confronting the many crises

and stresses upon them. It was also partial in the way in which it portrayed events and

added in material to show Maureen (and Hugh) in the worst possible light, so that, as 156 Elizabeth Matich, affidavit, 14 July 2000. Doc 235. 157 Hugh Smith, Application to be appointed Lay Advocate, 17 March 2000. Doc 132. Hugh also made notes on the affidavit in relation to its applicability to Patricia and whether it conformed with the use of private information under the Privacy Act. (Doc 120, with attached Principles from Privacy Commissioner) He had observed how much of the affidavit was irrelevant with respect to Patricia and also wondered whether Principles 8 and 11 had been breached by paras 2, 4, 8, 13 and 14.

55

Hugh said, Maureen’s efforts to gain help and sort out the difficultie s were presented

solely as evidence of her incapacity and even malevolence.

The Uplifting of Patricia 21 February 2000

On Tuesday 15 February—prior to applying for the custody order—CYFS

personnel (identified in Ms Matich’s affidavit as herself and Sharon Blisset) came to

Patricia’s school, Paeroa Central School, to interview her, clearly with the ultimate

intention of taking her into the Service’s care, too.158 They first phoned Patricia’s

teacher, then arrived at the school after lunch. This was the first contact CYFS had

had with the school in regard to Patricia.159 Brian Pratt, the Principal, sat in on the

entire interview. Patricia was reticent about the interview process but answered all

questions and remained positive throughout.160 Mr Pratt recorded some of the

questions asked and Patricia’s answers:161

1. Was [Patricia] present when Mark was disciplined? No I was at athletics.

2. Where was Mark when you got home? In bed. 3. What was he doing? He was laughing. 4. Do you ever get hit? Sometimes. What for? When Mark and I argue.

What do you get hit with? A hand or the stick. What sort of stick? A bamboo one. Where do you get hit? On the hand or bottom. Who is it that disciplines you? Mum.

5. Do you feel unsafe at home? No.

She was also asked where she had been living and why she had been living there, but

her answers were not recorded and nor is the point of those questions apparent, given

that CYFS knew perfectly well the housing history of the whole family having

organised much of it.

Patricia also asked the CYFS staff questions of her own: where was Mark? ‘At

your Auntie Tania’s.’ and ‘Will he be coming home? ‘We’re not sure.’162 This seems

158 Brian Pratt to Maureen Reti, 17 February 2000. Doc 112. 159 Brian Pratt, affidavit, 19 June 2000. Doc 182. 160 Pratt, affidavit. Doc 182. 161 Pratt, 17 December 2000. Doc 112. He later repeated these in an affidavit sworn on 19 June 2000. Doc 182. 162 Pratt, affidavit. Doc 182.

56

disingenuous given that they were at that very time in the middle the process of

applying for long-term custody from Maureen.

Several points to note seem to be:

(a) When Patricia returned home on the night of 9 February, Mark was

laughing in bed, not crying or otherwise showing signs of great distress.

(b) An implement was not always used when the children were being

disciplined.

(c) It was yet again made clear to the CYFS staff that the ‘stick’ was a

length of bamboo, not a broom handle.

(d) Maureen was the one who disciplined her. Hugh did not.

(e) Patricia felt safe at home.

In July, Elizabeth Matich would swear that these details, provided spontaneously

at the time by Mr Pratt and included in his sworn statement, were false. Having read

an affidavit of Maureen’s repeating them, she stated:

At no point during this interview did I ask Marion directly whether she felt unsafe at home or not, therefore, Marion did not express to me her feelings of safety, or otherwise. Marion did disclose to me that she got the same kind of disciplining that Mark did. Marion spoke of Maureen hitting her with her hand and with a bamboo stick. Marion said that she sometimes felt like running away after being hit by Maureen. On the basis of these disclosures, it was my belief that it was not safe for Marion to remain in her home. During this interview, I did not indicate to Marion that there would be a possibility that she would be taken away from her mother, therefore, Marion did not express to me that she did not wish to be taken away from her mother.163

It is true that Mr Pratt had offered his questions and answers as only a sample of

what was said, not a verbatim account. Therefore, the additional things Ms Matich

claimed Patricia had said may possibly be so, although they seem significant enough

to have been likely to be recorded by Mr Pratt. But the question of feeling safe is

explicit in Mr Pratt’s report and affidavit and exp licitly denied in Ms Matich’s. The

variation is hard to explain without concluding that one or other did not report the

events accurately for some reason—Mr Pratt reported this crucial statement

immediately and seems to have no reason for misrepresenting things; Ms Matich

wrote hers months later and did have a motive for matters to appear in a certain light.

163 Elizabeth Matich, affidavit, 14 July 2000. Doc 235.

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Patricia’s explicit denial of wanting to be taken away came when the ‘possibility’ had

become actuality, when CYFS came without warning to remove her.

On the following day, Maureen contacted the school for an appointment to

discuss Patricia having come home ‘depressed and deeply disturbed’ after the CYFS

interview. Behaviourally, Patricia was ‘very quiet and confused’. Maureen had not

been informed by CYFS of the interview—either before or after it took place—and

gained all her information either from ‘her upset 10-year-old daughter’ and Mr

Pratt.164 Clearly CYFS were planning to maintain secrecy about their formulation of

the custody application and its contents in order to prevent Maureen from having any

opportunity to forestall them.

On the strength of the 16 February custody order, which had been based on Ms

Matich’s allegations of the immediate hardship and risk Patricia was said to be

suffering under, Ms Matich proceeded eventually to move to remove Patricia from

Maureen’s home and care. It would appear hard to justify a five-day wait if CYFS

believed there really was such immediate danger as she alleged.

On 21 February 2000, CYFS phoned Mr Pratt at 1pm to ask whether Patricia

was at school and when told she was ‘they said they would like to come up and see

her’.165 They (no documentation stating exactly who the personnel were has been

sighted) arrived at 1:30pm and it was not until he had ‘reluctantly’ taken her from

class to his office at their request that they told both him and her that they were

executing a court warrant (which they then showed him) to uplift her from the school,

take her into their custody and remove her to her aunt’s.166 They told Patricia that

‘they had come to take [her] for a ride to see her Auntie Tania for a while’.167 The

phraseology of that statement is important as it could readily be construed by a child

as being a short-term event, possibly as brief as a single car trip for a visit, and

certainly not as forcibly removing her against her will from her mother and home on a

long-term, possibly permanent, basis. How long are ‘a ride’ and ‘a while’? Patricia’s

reaction, though, suggests that whatever their words, and however misleadingly they

may have been phrased, she saw through what they were actually doing.168

164 Pratt, affidavit. Doc 182. 165 Brian Pratt to Maureen Reti, 23 February 2000. Doc 115. 166 Pratt, 23 February 2000. Doc 115; Pratt, affidavit. Doc 182. 167 Pratt, affidavit. Doc 182. 168 Patricia also maintained that this was what they told her (Maureen Reti, information to counsel, 5 May 2001. Doc 599.) and that when she realised she had been conned she was so upset she refused to go to the new school for several days.

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Mr Pratt recorded at the time:

Patricia then got her bag and I went to get her book after having a talk to her. She was visibly upset and said she did not want to go. I informed her that unfortunately she had no choice.169

Later he stated:

Patricia was visibly upset with the shock of this declaration. I asked for and was granted permission to talk to Patricia. Patricia told me that she did not want to go. I gathered her books and bag and explained to her that unfortunately she did not have a choice, since a Warrant had already been issued.170

At the principal’s prodding, the CYFS staff admitted Maureen did not know this

was happening, but said she was going to be informed.171 He stressed that:

Patricia was shocked when the two CYPFS personnel came to ‘take her away’. She had definitely told them that she did not feel unsafe at home, and from my observations, did not really want to go but seemed resigned to the situation. 172

After they had left, Mr Pratt phoned the CYFS office shortly afterwards, just

after 2pm, and told them to tell Maureen before the end of school as he did not want

to be having to field calls from her wanting to know where Patricia was and her being

caused ‘unnecessary concern when her daughter failed to return home’. He also

phoned the Area Manager ‘about the manner in which this matter had been dealt

with’, as well as to gain an assurance that he as principal would be fully informed in

advance of the purpose of such visits.173

Later, Mr Pratt added in a letter to Hugh that, while Patricia was at Paeroa

Central School, ‘she was always happy and motivated’174—a sad contrast to how she

presented to Hans Laven after CYFS had finished ‘caring’ for her. He also stated, as

he would again in his affidavit:

Patricia was shocked when the two CYFA personnel came to ‘take her away’. She definitely told them that she did not feel unsafe at home and from appearances did not really want to go but seemed resigned to the situation.

169 Pratt, 23 February 2000. Doc 115. 170 Pratt, affidavit. Doc 182. Emphasis in original. 171 Pratt, affidavit. Doc 182. 172 Pratt, affidavit. Doc 182. 173 Pratt, affidavit. Doc 182. 174 Brian Pratt to Hugh Smith, 9 June 2000. Doc 172.

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In his affidavit he expanded and reinforced these statements:

I further state that it was a pleasure to have Patricia at my School during those few weeks. She was observed to be happy and motivated, a conscientious and mature student for her age, a keen listener, and a generally polite and contented girl with a pleasant disposition, showing no signs of any need for care & protection.175

It can be noted that these behaviours and statements from Patricia would hardly

be the case with a child who was being systematically abused and in such danger and

at such immediate risk as Ms Matich claimed in her sworn affidavit to the court.

Mr Pratt and the Board of Trustees of Paeroa Central School were very angry

and dismayed at the way CYFS had handled this whole matter. Mr Pratt took

immediate action with his phone call that afternoon and the Board did also that night.

Clearly these professionals were unimpressed with the quality of CYFS’ behaviour

vis-à-vis the school, Patricia and Maureen. As Mr Pratt reported to Maureen:

I also asked Mr John Henderson to ring me. I expressed my displeasure to him at the way the matter had been dealt with and also that in future I want to know the purpose of visits prior to them happening. He assured me this would happen. The matter was raised at our BOT meeting that night and the Board is writing a letter to CYFA [sic] expressing their dismay at what happened and how it happened.176

He also stated in his affidavit that ‘I was neither impressed with the absence of

empathy shown towards the child, nor with the absence of consideration for School

and student functions’.177 This indicates that, regardless of the vendetta which Ms

Matich and CYFS Paeroa seemed to be mounting against Maureen and Hugh, there

was scant consideration given to the actual welfare of the child concerned, nor for the

role and obligations of other trained and experienced professionals who had

responsibilities towards her.

The Board of Trustees of Paeroa Central School did make a strongly worded

written complaint to John Henderson about the conduct of his staff in the removal of

Patricia.178 They noted that at the previous board meeting ‘some consternation’ had

been expressed at how CYFS had removed Patricia from the school. However, the

school’s focus was on the CYFS actions vis-à-vis the school, no more. They 175 Pratt, affidavit. Doc 182. 176 Pratt, 23 February 2000. Doc 115. 177 Pratt, affidavit. Doc 182. 178 Teresa Handley to John Henderson, 17 March 2000. Doc 133.

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commented on the way in which the principal had been kept ignorant of the CYFS

purpose until he brought the child with him into the school office and they met there

with the social workers. They stated:

We feel that this situation is totally unacceptable and that a similar occurrence must not take place in the future.

They therefore asked that the principal be informed in advance in any future

case of this sort.

It should be noted that this school complaint was not a comment on the

substance of the CYFS allegations concerning Maureen and Hugh’s treatment of

Patricia, nor on the issue of whether it was necessary for Patricia’s safety to use state

power to take her from her family home. The school board was not in a position to do

so anyway, and the principal had been confronted with an existing warrant, rather than

being asked for his professional opinion about the need for one. The board’s

complaint was, though, an indictment of the professionalism of the CYFS staff and

the lack of any reasonableness and concern for others that they displayed in

performing to the letter of the law (in this case), rather than any spirit of seeking the

least traumatic means of resolving the situation. Quite apart from any issues over their

treatment of Maureen and Hugh, in this case there was complete disregard for the

feelings of Patricia, giving her no opportunity to be prepared for the trauma about to

be inflicted on her or to have any say in how she wanted to be treated or where she

wanted to be. Similarly, there was complete disregard for the professional

responsibilities of Mr Pratt as the adult in loco parentis with regard to Patricia at the

time. A school principal has particular responsibilities, legal and moral, for the

welfare of the children in their care and keeping, including protecting them from

undue emotional trauma inflicted by other adults. In this situation the CYFS staff

presumed it was good enough simply to show him a warrant obtained without the

parent’s knowledge or consent to force him to stand aside and relinquish those

responsibilities. All he was able to do was try to comfort her as she was taken away,

by complete strangers, protesting that she did not want to leave her mother.

It should also be noted that Elizabeth Matich would later state in an affidavit of

14 July 2000 that: ‘Despite enquiries, I am not aware of any complaint having been

made about me by Brian Pratt to the Area Manager.’179 This hardly comports with

179 Elizabeth Matich, affidavit 14 July 2000. Doc 235.

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both the telephoned and written complaint. If her ‘enquiries’ were that ineffectual,

then there is another information problem within CYFS Paeroa, centred around the

manager himself. The written complaint was, of course, from the Board and thus

technically not from Mr Pratt. Or could the complaint perhaps have been able to have

been taken as not being about her, but about the process? Or was she not one of the

CYFS personnel who actually uplifted Patricia and therefore not one of those

complained of?

Elizabeth Matich and Saranna O’Dowd did go to tell Maureen in person after

Mr Pratt’s 2pm phone call.180 Ms Matich told Maureen that CYFS had 5 days after the

issue of the Place of Safety warrant to inform the parent about CYFS’ plans, but

Maureen pointed out that it had actually been 11 days elapsed before Ms Matich had

made contact with her. The custody order had been sought and obtained 5 days after

Mark had been taken and all through this time she had not known where her son had

been spirited away to. Hugh’s note at the time was:

When Cyps arrived today at 2:15pm saying they must go by 2:30pm, produced a care & protection order for Mark & Marion stating it was initiated last Tuesday 15th, (after or B4 talking with Marion at her school in presence of Pratt?). They CYPS were very authoritative & dictatorial with no compassion, no conscience, and were adamant they were acting within the law—Elizabeth [Matich] at leaving, said she was not bothered at all by what she was doing.181

Given that they were both telling a mother that they had just already taken away her

daughter without notice (or any apparent cause or trigger event) and were giving that

mother her first information for 11 days as to the whereabouts of her son, simply

showing up out of the blue and stating peremptorily that they had to then leave again

within a few minutes seems callous in itself.

Ms Matich’s report of that meeting made no mention of Patricia being

discussed, but mentioned only Hugh challenging them on the humanity of what they

were doing to Maureen and her response challenging the humanity of their beating

Mark.182 Once more she reported no explanation given on their behalf, merely their

apparently pig-headed denial that ‘any form of maltreatment had occurred to the

children’—an expansion from Mark alone. She reported having tried to make a time

to meet with Maureen ‘to hear from her, her perspective of the situation’, but reported 180 Hugh Smith, MS notes, 21 February 2000. Doc 113. 181 Hugh Smith, MS notes, 21 February 2000. Doc 113. 182 Elizabeth Matich, affidavit, 14 July 2000. Doc 235.

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Maureen’s response as being a refusal apparently on the basis that this meeting should

have taken place 11 days earlier. If accurate, that response again suggests that no

indication was picked up by Maureen that CYFS were also about to take Patricia.

After an initial discussion with the CYFS staff, Maureen had called Hugh and a

neighbour, Dorothy Thomas, to be witnesses to the meeting. Ms Thomas subsequently

wrote up a statement, and later an affidavit,183 about what transpired, and how Ms

Matich conducted herself in the meeting:184

I state that the dialogue and attitude delivered by Elizabeth Matich was the cruellest and most incomprehensible thing I have ever had to witness, the lack of justice for the children, and the lack of consideration for the parent. No compassion for either was evident, only the power of wilfulness in Elizabeth Matich was dominant. The longer I sat and listened to this very ignorant and callous female, the harder I found it possible to accept she was a supervisor in the welfare of family care….

I sat in this meeting until my disgust and anger overwhelmed me and I had to walk out.

Ms Thomas, knowing the family and living at the centre also, pointed out that,

whatever the reasons for their actions, there seemed to be no recognition by Ms

Matich of Mark’s character or his need for thoughtful handling:185

She [Ms Matich] appears not to know, but obviously does not care that Mark … has lied…. I say CYPF have condoned Mark’s lies, his thieving, his often destructive behaviour, and have betrayed the efforts of his mother and others to help him see his wrongs…. As for myself, also being a victim of Mark’s ways, it is my opinion that CYPF did not follow through and find the truth, and the facts of events leading up to this crisis, acted [sic] with prejudice and haste, and now have effectively destroyed any chance Maureen had of correcting with necessity [sic] Mark’s current behaviour and his new belief that his actions are allowable. While this boy continues to exploit his ideas of getting recognition, his understanding of right from wrong, and of respect for others, will take him down a path that I shudder to think about. It is likely that in the long term he will be locked up by the law and CYPF will wrongly blame the mother.

Further, Ms Thomas noted that the new dealing with Patricia was also

inappropriately done and pointless:186

183 D.M. Thomas, affidavit, 29 June 2000. Doc 188. The affidavit reproduces word for word what was in Ms Thomas’s earlier statement. 184 Dorothy Thomas, statement, 24 February 2000. Doc 118. 185 Dorothy Thomas, statement, 24 February 2000. Doc 118. 186 Dorothy Thomas, statement, 24 February 2000. Doc 118.

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Marion was happy on the morning of 21st when she came to say good-bye when leaving for school. When this female told us, ten minutes into the meeting, she had already taken Marion from the school, I was shocked. I know Marion would have been shocked and scared but this woman was unconcerned for the child’s reaction. Don’t anyone ever tell me that CYPF cares for people, be they little ones or big ones!

After the visit by Ms Matich, Hugh phoned Patricia’s school at 3pm and spoke

to both the deputy principal and Mr Pratt. Mr Pratt confirmed that he had already

objected to CYFS manger John Henderson to say ‘“don’t ever do that again” (come

into my school with an order without first informing him of case.)’187 He also told

Hugh what he had earlier written to Maureen about the 15 February interview again

confirming both the questions and answers:

Do you ever get disciplined? (Yes) What sort of things do you get disciplined for? (Mark & I argue a lot, & fight) How do you get disciplined? (a wack [sic] on the hand or bottom) What do you get wacked [sic] with (usually Mum’s hand, sometimes a stick). Does Hugh ever wack [sic] you? (No).188

In this discussion, which was only at most half an hour after CYFS had told

Maureen, Mr Pratt also told Hugh:

Marion had made it clear to Pratt that she didn’t want to leave her mother, she didn’t want to stay with her aunty Tania, and she was concerned that her brother Mark was going to end up in Jail like her brother Lance.189

That night at 6:20pm, Maureen did get to speak to Patricia by phone. According

to Patricia she was told by the CYFS staff that ‘she was just going for a ride to her

Aunty Tania’s and staying for a few days.’190 This, of course, was not what Mr Pratt

had been told when advised that she would not be coming back.191 Much later,

Patricia told psychologist Hans Laven that the CYFS workers had ‘lied’ to her, telling

her:192

they were just taking her on a little ride, but instead she was taken to her aunt’s and left there without explanation. She said that she felt ‘very, very sad, angry, depressed’ about this.

187 Hugh Smith, MS notes, 21 February 2000. Doc 113. 188 Hugh Smith, MS notes, 21 February 2000. Doc 113. 189 Hugh Smith, MS notes, 21 February 2000. Doc 113. 190 Hugh Smith, MS notes, 21 February 2000. Doc 113. 191 Hugh Smith, MS notes, 21 February 2000. Doc 113. 192 Hans Laven, psychologist’s report, 3 December 2002. Doc 995.

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She also told him that this was made worse by being done on Maureen’s birthday and

that Patricia had been ‘looking forward to getting home from school and baking a

birthday cake’. The date was clearly significant not just to Maureen, but CYFS never

knew this as they never consulted the child they were allegedly working in the best

interests of.

Apparently from the same phone call, Maureen found out that Mark already was

close to being expelled from Ngatea School. Also, Mark—a 9-year old—told her that

a male police officer who had taken photos of him had told him his mother would be

sent to jail. He said that CYFS had told him he could only go back to his mother when

she ‘got her attitude right’.193

This day’s events and the discussions with her children had shaken Maureen so

badly that Hugh had to take her down to the Paeroa Police station to seek reassurance

from Constable Madison, that the Police were not going to come and take her away in

handcuffs without any notice.194

As for Tania Mapu, she too was feeling bemused and eventually misled by

CYFS, and particularly Matich, about the whole business:195

When my husband and I agreed to have Mark stay with us we were told by Liz Matich that it was going to be a couple of weeks, then 11 days later on the 21st Feb 2000, I got a phone call from CYPFS asking if we would look after Marion. I agreed but also asked why was Marion needing care but I never got a clear understanding as to why both children was in need of care and protection.

On 15 February, Maureen wrote to the CYFS District Manager at Paeroa

complaining formally that the CYFS workers Elizabeth Matich and Saranna O’Dowd

had committed professional misconduct, misrepresented the intentions of the CYF

Act, abused their position and exceeded their lawful authority, and thereby created

mental cruelty and stress, anxiety and suffering to her and the family.196 She also

advised in that letter that CYFS had failed to communicate with her at all since Ms

Matich’s visit with the warrant on the afternoon of 10 February.

At some time on 21 February, Maureen faxed her MP, the Hon. John Tamihere,

seeking his assistance.197 She set out a summary of key facts relating to the previous

193 Hugh Smith, MS notes, 21 February 2000. Doc 113. 194 Hugh Smith, MS notes, 21 February 2000. Doc 113. 195 Tania Mapu, affidavit, 13 July 2000. Doc 233. 196 Maureen Reti to District Manager CYFS, 15 February 2000. Attachment to Doc 269. 197 Maureen Reti to Hon, John Tamihere, 21 February 2000. Doc 114.

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week’s events and apart from giving her opinion as to the CYFS ‘gross abuse of

powers, misrepresentation of the Act … slander, and total lack of considerations to

circumstances, facts, or the concerns of a mother’, she pointed out other failings. Both

Patricia and Maureen were opposed not just to the taking, but to the children being

placed in the same whanau home. Mark had special needs, but even after 11 days

‘nobody has asked if he has special medication or nutritional supplements’. No

attempt had been made to offer an intermediate step, such as calling a family group

conference. She was concerned that irreversible damage was being done to her

children and family by CYPS. Already at this time, Maureen and Hugh had identified

a number of serious problems with the CYFS procedure:198

• The facts as set out in the letter from Mark’s school were contextless,

inaccurate and misleading.

• The application for the place of safety warrant had been made after they

had already taken Mark. Maureen alleged here that they had led Mark’s

principal to believe that they already had the warrant—although of

course he had not demanded to see it before releasing him to them.

• Maureen had had not opportunity for any input, explanation or even

expression of concern to anyone at any time in this process, either about

the situation as it developed or the home into which CYFS had placed

the children.

• The home in which Patricia and Mark had been placed already had 4

adults and 10 children jammed into a 3-bedroom house. Maureen also

had other objections to that particular whanau home that was being used.

Ms Matich later defended on several grounds her having placed the children

with Tania Mapu. 199 She said both Mark and Patricia had identified Tania as the

relative they felt safest with and stated that ‘My belief was that the children’s sense of

safety was paramount’—again no definition of ‘safe’ although used in yet another

context where there was such extreme overcrowding and which was definitely not

‘safe’ in the way she had been using the term against Maureen. Ms Matich was aware

of Tania’s home situation at the time of placement, but stated that Tania had assured

198 Maureen Reti to Hon, John Tamihere, 21 February 2000. Doc 114. 199 Elizabeth Matich, affidavit, 14 July 2000. Doc 235.

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that having the two children ‘would not place undue stress on the household’ and that

they were looking for a larger home.

By contrast, Patricia later told psychologist Hans Laven that the experience was

miserable for her (as it was also for Mark, although for slightly different reasons):200

While Patricia held no grudge against the aunt and whanau with whom she was left, she said there were 15 people living there in a 3-bedroomed house and she [said] the sleeping arrangements were ‘not very enjoyable’ because of the large number of people she had to share a bedroom with. Patricia reported [to Laven] that she was assaulted and otherwise picked on, for example by being made to do dishes and chores, by the children living at the aunt’s house because they were jealous that she frequently received clothes and gifts from her mother.

Clearly that state of affairs did not obtain solely on the first few days of uplifting

Mark, or even both children, when some argument might have been made for a need

for ‘emergency’ accommodation. The two children would be left at Tania Mapu’s for

the rest of the year, and then only grudgingly removed by CYFS on the basis that

Tania and Maureen were not getting along.

On 22 February 2000, Hugh phoned John Henderson to ask for the name of the

CYFS legal adviser. He was told of Mr Tony Page, at CYFS in Tauranga.201

Mr Tamihere wrote on 23 February to Elizabeth Matich and the officer in charge

of the Police Station in Paeroa, asking each of them for a report in response to

Maureen’s plea for help.202

Not until the morning of 24 February, a fortnight after Mark had been taken and

2 days after Patricia had been taken too, did Maureen finally find out the information

given to the Waihi Court by Ms Matich to enable the taking of her two children. As

she wrote to the Paeroa Police, she was deeply saddened to learn that they contained

‘gross irregularities, untruths, and a subsequent incorrect portrayal of events,

circumstances, and intentions’.203 This letter was written in response to Constable

Manu Taitoko informing her that the Police would be taking no action in response to

her complaint of 10 February alleging the abduction of Mark from Tirohia School.

Apparently, on 24 February also, Tania Mapu told Saranna O’Dowd that Hugh

was ‘very hard on the children’, hitting Mark to get him up in the morning and then

200 Hans Laven, psychologist’s report, 3 December 2002. Doc 995. 201 Hugh Smith, MS notes, 21 February 2000. Doc 113. 202 John Tamihere to Elizabeth Matich, 23 February 2000. Doc 116; John Tamihere to Officer in Charge, Police Station, Paeroa, 23 February 2000. Doc 117. 203 Maureen Reti to Paeroa Police, 24 February 2000. Doc 119.

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going in an hitting him again. 204 Even if the report is true—which it appears not to

be—that information was provided over a week after custody was sought and could

not have been supportive of CYFS seeking it.

Sergeant CR Smith of the Paeroa Police replied on 29 February that he could not

take Maureen’s complaint of abduction any further.205 This was for a three-stage

reason:

1) Under the Crimes Act ss 209 (kidnapping) and 210 (abduction of a

child) there was a statutory defence in each case where a person gained

possession of a child ‘claiming in good faith a right to the possession of

the child’.

2) The social workers uplifting Mark did so under principles 5(d) and 6 of

the CYPF Act.

3) ‘Therefore, the Social workers can claim to have had possession of

Mark “in good faith” for the short period of time while a warrant was

obtained to place him.’

The over-riding factor, Sgt Smith said, was the safety and well being of the

child, and in this case Mark had apparently told the social workers he did not wish to

go home.

Three points occur. What Mark said is actually a non sequitur with regard to the

boy’s safety and well being, and is therefore irrelevant to the main issue. Secondly,

whether or not his safety and well being were threatened right then should surely have

been assessed by some sort of objective test relative to the likelihood of his suffering

inappropriate violence had he returned home that night. This is the issue regarding the

ex parte applications again; given the actual circumstances of what had happened to

Mark, what evidence was there to show that there was an immediate danger requiring

immediate and secretive taking—now of both children? Thirdly, if Mark saying he did

not want to go home was such a weighty consideration in encouraging the uplifting,

then should not Patricia’s very strongly expressed desire not to be taken away from

home, coming from a girl a year older, have been given even more weight?

204 Elizabeth Matich, affidavit, 14 July 2000. Doc 235. 205 Sgt CR Smith to MR Reti, 29 February 2000. Doc 124.

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Beginning the Struggle to Recover Patricia and Mark Maureen had an appointment at CYFS at 2pm on 28 February. She met with

Louise Cairney and Saranna O’Dowd, although the appointment had been made with

John Henderson, their site manager, and no notice had been given of the change 206—

yet these were two of the social workers about whom Maureen had already laid

complaints. Hugh and Olga Campbell, president of the Te Aroha Branch of the Maori

Women’s Welfare League, went as support people. Hugh found Ms Cairney to be

completely intransigent about the accuracy of the information in the two affidavits Ms

Matich had sworn. Cairney asked for fresh clothing for the two children—18 days

after Mark had been taken, what had they been wearing?—but insisted Maureen bring

it to the CYFS office as O’Dowd felt ‘unsafe’ about coming to the house to collect it,

the implication being that CYFS thought (or were pretending to believe) Maureen or

Hugh would physically assault Ms O’Dowd. This implication was made although

there had been no violence threatened to the CYFS staff despite the manner in which

they had treated the family members throughout the affair; it is not apparent from the

documents why or in what way O’Dowd felt ‘unsafe’.

Hugh also noted that in response to Maureen’s request to have her case handled

by a Maori social worker, Ms Cairney responded that there were none—in itself an

incredible claim which would have reflected on CYFS—but in fact their own

inquiries later in the evening revealed that once again they had been misled (or

deliberately lied to) and that there were actually at least three Maori social workers

available.207

Just as Dorothy Thomas had been outraged in the meeting with Elizabeth

Matich, Ms Campbell was appalled at the social workers’ attitude to and treatment of

them all.208 The CYFS staff received her introduction in a ‘very cold’ and ‘rude’

manner. She commented:

From my observation of the meeting and listening to the conversation going on, was all one sided, and very denigrating the dignity, humiliating, and integrity of the mother.

206 Hugh Smith, MS notes, 28 February 2000. Doc 121. 207 Hugh Smith, MS notes, 28 February 2000. Doc 121. 208 Olga Campbell, statement, 16 March 2000. Doc 131; Olga Campbell, affidavit, 30 June 2000. Doc 191. The affidavit reproduced the original statement almost word for word, with a few corrections.

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Maureen was spoken to very forcefully, the mother’s view or anyone else who tried to say something was over ridden by the A factor “ATTITUDE”. The supervisor [Ms Cairney] even rudely interrupted Mr Hugh Smith who tried to say something. The way the meeting was conducted it is no wonder Maureen got upset…. These rules which your organisation has laid out for your workers of CYPs has not been adhered to. The Supervisor who is handling this case of Maureen’s children needs people skills very badly, especially if she puts parents on the defensive.

She also gave her opinion of the uncaring and thoughtless way the children had

been left without clothes for many days and Mark’s medication had not ever been

considered, while their removal from school had been ‘ludicrous’. She also pointed

out that the various rules that CYFS itself had regarding the removal of children had

not been adhered to in these cases.209

Maureen filed a written complaint to John Henderson about this meeting on 29

February. 210 She complained in detail of:

• the disrespectful lack of adequate explanation for Mr Henderson’s

absence, the behaviour of the two social workers and the attitude this

displayed, and the way in which her own ‘natural and well founded

concerns’ for her own children were totally disregarded.

• They had demanded the delivery of the clothes after such a passage of

time, while refusing to even let her speak about the children’s other

needs such as medication, nutrition or education.

• In making the allegation that it was ‘unsafe’ for Ms O’Dowd to come to

Maureen’s home they were being deliberately provocative and

slanderous.

• The declaration that all further dealings would be done on CYFS

premises, at their direction, ‘and that I had no rights or needs to be

consulted in those respects, and that I had no rights to Maori Social

Workers even if one was available, as I myself was not from this ‘Iwi or

Hapu’. This, Maureen said, was extremely personally offensive and

showed Ms Cairney’s ‘total ignorance and disregard for cultural values’.

What the relevance was of Maureen’s trial affiliations was not explained.

209 Campbell, affidavit. Doc 191. 210 Maureen Reti to John Henderson, 29 February 2000. Doc 123.

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Surely she cannot have been saying that Maori could only get culturally

appropriate assistance within their own individual traditional tribal

districts?

• Refusal to allow any possibility that Ms Cairney’s report in support of

the ex parte custody applications, sworn as an affidavit in the name of

Elizabeth Matich, was in any way inaccurate or misleading, or that if it

was it would pervert the course of justice.

• Despite having been told, surprisingly, that there were no Maori social

workers, Maureen had found out for herself that there was at least one,

whom she named together with her days of availability. Maureen

observed: ‘This situation surely clarifies my point that your staff are not

endeavouring to communicate or consider my concerns, but on the

contrary are deliberately withholding pertinent information from me with

intent to mislead or deny me of my rights.’

• In another apparent example of exactly the same deliberate obfuscation,

Hugh had himself asked Henderson who their local legal advisor was

and was told that they had none in Paeroa, but that all legal work was

done in Tauranga by Mr Page. Yet all the legal work relating to

Maureen’s case had been done in Paeroa by a local solicitor, L.G.

Broadbent. [This later turned out to be a distinction between the inhouse

lawyer/legal adviser (Page) and a local who witnessed affidavits etc.]

Maureen also set out the dates and times of the only five occasions on which

CYFS had communicated with her on this matter:

1. 3pm 10 Feb being told that Mark had been taken from school but with no

information about his whereabouts or situation;

2. 5:30pm 10 Feb being served with the Place of Safety warrant, but again

denied any information about Mark;

3. 2pm 21 Feb being told that Patricia had been taken from her school and

being given the ex parte custody orders;

4. 24 Feb a telephone message scheduling the 28 Feb meeting with John

Henderson

5. 28 Feb meeting not with John Henderson but with Louise Cairney and

Saranna O’Dowd

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All of these were procedural events, serving her with orders or setting down

meetings. It can be readily observed that none of these, apart from the latest

unsatisfactory meeting, had given her any information about the issues, the provision

being made for her children, or in any way attempting to do anything other than

exercise some of the most rigorous and confrontational powers CYFS possesses.

On 2 March 2000, Mr Tamihere wrote back to Maureen advising her strongly to

seek legally aided legal support. He pointed out that now that the matter was before

the Family Court, there could be no ‘political interference’ and it was over to her to

seek her own independent advice, since independent counsel would be appointed to

represent the children while CYPFS would also have their own counsel. 211

John Henderson, Site Manager for CYFS Paeroa, acknowledged on 6 March

2000 having received Maureen’s complaints dated 15 and 29 February. He told her he

would reply to them once he had ‘investigated her complaints’.212

Maureen turned to other organisations for help. She was interviewed at Tu

Awhina of Hauraki Maori Trust Board on 10 March 2000 by social worker Denise

McEnteer.213 She approached Shane Graham at Te Korowai Hauora o Hauraki asking

for help regarding the taking of the two children. 214 She also sought from them a male

counsellor for Mark and stated that she had already asked Tu Awhina to provide a

female counsellor for Patricia. In these two approaches to other helping agencies

many of the key issues had already been identified, such as: the uplifting of Mark

without a warrant, Maureen’s opposition to the placement of the children with Aunty

Tania’s household, the unsuitability of other whanau members, whether CYFS had

observed their own practice and procedure guidelines, the CYFS argument that they

were acting to prevent the infliction of any more inappropriate discipline, the

appearance that whenever Maureen turned for help it was held against her as evidence

of her unsuitability as a mother, ensuring that the Counsel for Child spoke with the

children. Denise McEnteer’s second set of notes, dated 13 March, appear to record

either suggestions or agreements as to ways forward. For the first time, though, the

issue of sexual abuse was entered with a note: ‘Denise—Sexual Abuse Counselling’,

but no elaboration was noted as to why it was even mentioned. 211 John Tamihere to Maureen Reti, 2 March 2000. Doc 125. 212 John Henderson to Maureen Reti, 6 March 2000. Doc 126. 213 Notes by Denise McEnteer are Docs 127 and 129. 214 Maureen Reti to Shane Graham, 15 March 2000. Doc 130.

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Hugh then applied on 17 March to the Family Court to be appointed a Lay

Advocate under ss 163, 164 and 169 of the CYPF Act 1989.215 He did so on the bases

of the detailed failings of CYFS to address the urgent needs of the children, of the

way in which Maureen and her history had been repeatedly misrepresented to the

Court by CYFS, and of his own personal knowledge of the case and situation. The

Court Manager replied on 6 April that the Family Court judge had cons idered the

matter but declined the application. No reasons for the judge’s decision were given. 216

A meeting between personnel at Ngatea Primary School and Special Education

Services took place on 21 March. 217 His ADHD diagnosis was recognised and his

extensive anti-social behaviour—including provoking others, stealing, destructiveness

and considerable anger—were documented. A grant for teacher aid support was

approved for 100 hours per week [which would seem to be a mistake, other

documents indicate more like 5 hours per week] and the priority for specialist support

and therapy was that: ‘Mark is in urgent need of anger management counselling.’ It

appears that this urgently needed counselling was never provided for him. It is also

apparent that the behaviours for which Maureen was trying to discipline Mark were

not merely exhibited by him in the home situation but pervaded all areas of Mark’s

life and study. The meeting also observed that: ‘He is having problems adjusting to

another change of home, family and school’. Perhaps, coming from these other

professionals, this might have suggested to CYFS, under whose supervision he was,

that they should reconsider whether he should be having to make such an adjustment

at all.

On 4 April, Maureen and Tania together took Mark to see Dr David Newman, a

paediatrician at the Children’s Clinic, Waikato Hospital. 218 After summarising some

of Mark’s previous assessment at Campbell Clinic and history to date, including

noting the anger management counselling sought by the school, Dr Newman did not

at this time make any further findings or prescribe treatment. He did, though, seem to

accept the ADHD diagnosis as he provided both Maureen and Tania with information

on behavioural management and attention deficit. This letter was copied to Elizabeth

Matich at CYFS Paeroa. As Dr Newman’s followup, an appointment was made for

Mark at the Paeroa Paediatric Medical Clinic for 13 June. These appointments were 215 Hugh Smith, Application to be appointed Lay Advocate, 17 March 2000. Doc 132. 216 Phil Clarke to Hugh Smith, 6 April 2000. Doc 139. 217 Specialist Education Services, minutes, 21 March 2000. Doc 134. 218 Dr Newman to Dr Carroll, 4 April 2000. Doc 136.

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made by Maureen who was concerned that CYFS were not taking proper care of

Mark.

On 12 April, Jessie Clubb, CYFS Paeroa Care and Protection Co-ordinator,

called a FGC for 4 May. 219 This FGC was called under s 18 at the social worker’s

referral. It was called, though, over two months after the children had been taken by

CYFS and would be he ld almost 3 months after that event. There was clearly no

urgency felt by CYFS about the situation or the care of the children.

CYFS Paeroa Site Manager John Henderson responded to John Tamihere’s

query on Maureen’s behalf with a mixture of truth, half- truth and incorrect

information:

• He said Mark did not want to go swimming because of a sore bottom,

whereas it had been because he did not want to be seen and did in fact go

swimming once he could change in privacy.

• He said Mark had been beaten with a broom handle, whereas it was known

to CYFS from Ms Cairney’s very first preliminary interview that it was a

bamboo cane.

• The beating was because Mark had done ‘something wrong’, whereas the

theft of $100 and subsequent lying was the culmination of years of incidents.

• Ms Matich had informed Maureen that what had happened met ‘our

definition of physical abuse’ and was not reasonable discipline, whereas that

conversation had not had that tone at all. Nor, as has been pointed out, was

any definition of physical abuse given.

• The Police had not taken further Maureen’s abduction complaint, whereas

this was done because CYFS had statutory protection, not because the Police

had made any professional judgment as to whether had acted appropriately

or professionally.

• Maureen had not taken up an invitation to talk to Ms Matich the following

day about possible placements and other issues, whereas Ms Matich had

seen her twice on the day Mark was taken, the placement had already been

made and CYFS made no further contact with Maureen about placements,

care of Mark (or then Patricia), therapies etc.

219 Jessie Clubb to Hugh Smith, 12 April 2000. Doc 141.

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• Patricia had been uplifted pursuant to a s 78 custody order and she had

identified Tania Mapu as someone with whom she felt safe, whereas the

order had been obtained secretly ex parte, Patricia had also told the CYFS

workers she felt safe at home, and Patricia had been taken against her

express will.

• The CYFS actions had ensured the ‘immediate safety’ of the children,

whereas there was no evidence of any immediate threat to either of them,

and especially not to Patricia.

• The CYFS actions had been pursuant to court orders, whereas as discussed

above the Place of Safety Warrant was obtained after the uplifting of Mark,

it was issued by a court official (presumably within authority), and if the

custody order was made by the Court the judge never had any information

other than the misleading CYFS affidavits and certainly none that remotely

questioned the CYFS presentation.

• Two attempts had allegedly been made to gain information from Maureen

with regard to the children, at the execution of the custody order on the day

Patricia was taken, and at the 28 February meeting at the CYFS office.

However, it is clear from the documentary accounts of those meetings,

including the witness accounts, that anything said about the children was

dismissed by the CYFS staff.

• On both those occasions both Maureen and Hugh ‘appeared to be more

interested in questioning the process as opposed to being focused on the

needs of the children’. This is a travesty of the written record of both those

‘meetings’ and of the various documents over a number of years that show

Maureen constantly battling for support and assistance for all 3 of her

children. It implies (a) an ongoing lack of real concern for the children by

Maureen and Hugh, and (b) a presumption that the CYFS actions were

above challenge since children were involved—presumably children are

always involved when CYFS is!

Taking this letter at face value and noting that the matter was about to be progressed

through the FGC and an 8 May Court hearing, Mr Tamihere made no comment and

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took no action, but merely passed Henderson’s letter on while hoping things would

somehow ‘work out’.220

On 15 April, from prison Lance wrote a brief statement in support of Maureen.

He said that ‘… my brother doesn’t know what he’s doing to our family and he thinks

this is a joke because he’s young. I think my mother is just trying to teach him the

right way because she does not want him to go down the same track I went down

because he’ll end up where I am (JAIL).’221

Saranna O’Dowd advised Maureen that she had arranged access to Patricia and

Mark at Tania Mapu’s house in Ngatea on Saturday from 1 to 3pm, two months after

they had been taken. This access would be supervised by Regina Rodewald.222

On 20 April, in an attempt to find out what CYFS information actually said

about her, Maureen authorised Denise McEnteer of Tu Awhina to access her CYFS

file so that she could discuss it with Maureen alone.223 The two sheets of Ms

McEnteer’s notes are quite confused and unclear as to what exactly the sources of the

comments recorded are. There is a report from the interview with Mark prior to his

uplifting, which seems to contain much the same as noted above. A second document

cited appears to be a summary by Louise Cairney of the family history from 1993.

There is a brief mention of the evidential interview of Mark conducted by Fiona

Strange which includes comment about developmental delay, which is of course not

on the tapes—how could Mark be giving evidence of his own developmental delay

and why would Ms Strange have recorded something that was not said in the

interview? Then there are notes that may refer to information received from Tania

Mapu which appear to allege:

• That Maureen used pills to attempt suicide in the 1st 3 months of a

pregnancy, presumably Mark’s. This is a factual matter of which there

has been no other evidence sighted.

• That Patricia’s background was one of mental abuse as shown in her

having lived in 5 homes in the past 2 years. The two matters are not

linked of course as Maureen’s moving was hardly cruel but a person

220 John Tamihere MP to Maureen Reti, 2 May 2000. Doc 152. 221 Lance Marriott, statement, 15 April 2000. Doc 143. 222 Saranna O’Dowd to Maureen Reti, 17 April 2000. Doc 144. There is a difficulty over the exact date of this letter with a copy apparently received by Tu Awhina on 13 April [this cannot be verified from the datestamped photocopies in the Doc Bank, which appear more like 18 April] and the fact that it took at least 3 days for NZ Post to deliver it to Maureen. 223 Maureen Reti to General Manager CYFS Paeroa, 20 April 2000. Doc 146.

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living in poverty having to find a roof over her head as she could, while

the placements with BFS and Alice Reti were to give Maureen respite

and treatment.

• Tania said Patricia ‘did not like Hugh says she feels uncomfortable with

the way Hugh looks at her’. This conflicts with Patricia’s clearly

expressed desire to remain living at home and her otherwise positive

comments on the odd occasion that she mentions Hugh in her various

documents.

• She also said that Lance had been exposed to both pornography when

young and to ‘inappropriate sexual behaviour between Maureen and her

partners’.

The photocopy of this document in the Doc Bank has an understandably outraged

response by Maureen handwritten on it, but it is unclear as to when she received Ms

McEnteer’s notes or wrote that response.

Maureen asked in writing to John Henderson regarding several conditions she

had for the forthcoming FGC.224 First, that it be videotaped because of her previous

experiences where things were misreported and ignored. Secondly, that Patricia and

Mark should both be present and able to state their wishes as the CYFS interview

process clearly already considered them old enough to speak for themselves. Thirdly,

that Lance also be given an opportunity to contribute by teleconference his views on

his family’s future. She asked that if any of these were declined that the statutory

authority for such a refusal be cited.

On the same day, and only one week after having initially arranged the

supervised access, Saranna O’Dowd wrote to Maureen with a change to the time from

1 to 3pm to 2 to 4pm on Saturdays and for the venue to be an unspecified ‘neutral

place’, not at either of Tania’s or Maureen’s houses.225 This was written on

Wednesday 26 April but not received by Maureen until Monday 1 May, i.e. after the

pre-arranged access. Unlike the letter of a week earlier, this one spelled out that there

was to be no contact outside those times and that if Maureen ‘broke this agreement’

Ms O’Dowd would take out a restraining order against her. There is no indication here

of why such a threat should have even been thought necessary and it appears as a pre-

emptive threat. Neither was there any ‘agreement’ to break; there were just the 224 Maureen Reti to District Manager, CYFS Paeroa, 26 April 2000. Doc 147. 225 Saranna O’Dowd to Maureen Reti, 26 April 2000. Doc 144A.

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conditions arranged and imposed unilaterally by Ms O’Dowd/CYFS and no aspect of

consent by Maureen.

A second letter followed on 28 April to Maureen from Ms O’Dowd, informing

her that the supervisor could not attend the 2-4 time on this Saturday (i.e. the next

day) but ‘will be hoping to do the access between 1-3pm on Sunday afternoon’.226

This was written on the Friday, but is not marked as received by Maureen until

Monday 1 May, after both times had passed. Also, given that this is a mother’s only

access to her children for 2½ months this seems a very cavalier approach, three

changes within little over a week, two of which Maureen did not receive until after the

scheduled access time. Further, on Friday, Ms O’Dowd was reporting that the access

supervisor ‘will be hoping’ to be able to hold the access on Sunday. This seems

casually cruel to both parent and children. Either the access had been granted on

specified conditions, or it had not; the access having been arranged it was both the

supervisor’s respons ibility to facilitate its happening and Ms O’Dowd’s/CYFS’s to

arrange for an alternative if the designated supervisor could not meet that

commitment. Surely ‘agreed’ arrangements like this cannot be broken simply at the

whim of a third party with no responsibility being on CYFS to ensure that the

arrangements are adhered to with regularity or at a bare minimum adequate notice.

Quite apart from the imposition on the parent, it is an irresponsibly cruel way to treat

the child involved.

An interview took place on 1 May between Maureen and Hugh and Te Korowai

Hauora.227 They set out their concerns that Mark’s condition was deteriorating

because of continued failure by CYFS and Tania to provide treatment and even failure

to attend scheduled treatment appointments. They told the worker of the difficulties of

dealing with Saranna O’Dowd who was ‘scared’ of Maureen, and were only then

informed that Elizabeth Matich was no longer with Paeroa CYFS, another example of

CYFS refusal to communicate. Maureen’s requests for a Maori social worker, for the

FGC to be held on a marae and for the principals to attend had all been ignored by

CYFS to date. She pointed out that she was actively trying to create supports for

herself and the children given the complete failure of CYFS in the past to provide

226 Saranna O’Dowd o Maureen Reti, 28 April 2000. Doc 148. 227 Te Korowai Hauora o Hauraki, interview notes, 1 May 2000. Doc 150.

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anything other than dubious placements, and certainly none of the agreed

counselling.228

The Family Group Conference May 2000

A plan was worked out for the FGC which would concentrate on a whanau plan

working towards the children’s return to Maureen, and that once the plan was in place

the CYFS-related issues could be pursued.

John Henderson refused Maureen’s request for videotaping the FGC as he said it

would breach the CYPF Act s 38.229 He also pointed out that under s 22 the Co-

ordinator of a FGC could decide it was not in the child’s best interests to attend a

FGC—there was no indication of the basis for any such decision to be made by the

co-ordinator, who had never met or interviewed either the children or family members

concerned.

The report of 3 May from SES psychologist Joy Gamby is full of implied

criticism of the way in which Mark’s situation had been handled by CYFS.230 The

incident concerning the fire mentioned in the Matich affidavit was actually a result of

Mark setting fire to a rubbish bin and singeing the kitchen lino, whereupon he had

been set to scrub it. This was arguably a quite appropriate punishment fitting the

crime, and certainly not the impression created by Ms Matich of virtual Oliver Twist-

like child abuse. Ms Gamby made no mention of the alleged starvation either, which

might be seen as a more serious issue. Ms Gamby was indeed surprised that Mark was

in the care of Maureen’s teenaged niece and her partner, so that she drew the situation

to the attention of CYFS. As to CYFS Paeroa, though, she reported:

It seemed [CYFS] had little record of the family and no provision to follow things up. Later CYFS advised they had checked the situation and saw no cause for concern. It was a further surprise early this year to discover Mark had been transferred to the Ngatea area. Repeated calls to CYFS to get clarity on the situation got no response until notification of the FGC [i.e. now in early May].

228 Several times in these notes it is recorded that Denise McEnteer was working with Maureen on ‘s/abuse’ issues as well as CYFS issues. Presumably this stands for sexual abuse, but it is unclear what that might be referring to—the CYFS case was on the ‘physical abuse’ of the disciplining, not sexual abuse by some unspecified person. 229 JP Henderson to M Reti, 2 May 2000. Doc 151. 230 Joy Gamby, report re Mark Marriott, 3 May 2000. Doc 153.

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This is different from how Ms Matich reported it her 15 February affidavit. As

regards Mark being left in the care of Camellia and her partner, CYFS had

investigated and found no cause for concern, but Ms Matich reported it in her affidavit

as a step on the escalating child abuse. Later, Camellia would in her own affidavit

explain the exact circumstances of this—and how it was not a case of Mark ‘being in

her care’, but little more than extended babysitting. Presumably, if they had actually

investigated it at all, CYFS had found that the situation was indeed as Camellia later

explained and concluded that nothing need be done by the about it—so why was it

then trotted out by Matich as an escalation of abusive maternal behaviour?

Secondly, Mark had of course been transferred to Ngatea by CYFS, clearly

without informing other professionals already involved in his care—as had been the

case in their dealings with the two school principals. Ms Gamby’s surprise might also

have derived from Mark being so disturbed, yet being so cavalierly treated. Certainly

Ms Gamby was ignored by CYFS as she simply tried to find out how the boy she was

providing psychological support for was being treated by CYFS who seems to be

treating her as another professional with contempt, again as they had the school

principals.231 The one ‘positive’ in this situation was that the CYFS unprofessionalism

was apparently not personally directed; they just seemed to be going their own way

and disregarding absolutely everyone else.

Ms Gamby’s report continued by recounting many of the difficult behavioural

problems those coping with Mark faced, not an issue that appears in any of the CYFS

reports from this period. Tania Mapu had reported in March that she had

‘considerable difficulties at home incorporating both Mark and his sister into her

already stretched household’, and how Mark was upsetting her own family. Yet this

was the household CYFS placed Mark and Patricia in, kept them there despite

Maureen’s warnings, and staunchly denied any problems regarding that placement, in

preference to making any move towards reuniting Maureen’s family.232

Ms Gamby concluded her report with five major concerns about Mark. Three of

the items spelled out his need for stability and counselling and social support. There

was also:

231 Joy Gamby, report re Mark Marriott, 3 May 2000. Doc 153. 232 Joy Gamby, report re Mark Marriott, 3 May 2000. Doc 153.

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Failure of any follow up with help for his mother with his difficult behaviour after Glenburn and other interventions…. His experience of separation from his mother and concern for her seem to lead to descriptions of him as looking angry and sad.233 Maureen had complained repeatedly that there had been no help given, and here

an independent professional confirmed that not only had there been none provided by

CYFS, but that that failure had led to the worsening of his behaviour. Whatever Mark

said the CYFS on the day he was uplifted, the novelty had rapidly worn off and he

clearly missed his mother, was concerned about her, and wanted to go home. These

were not just sour grapes or wishful thinking by Maureen, but readily observable by

concerned professionals, to whom CYFS had paid no attention either.

The Family Group Conference on 4 May 2000 initially looked promising. It was

convened by Kay Morgan, CYFS Care Protection Co-ordinator, and attended by 12

whanau members, including a teleconference link with Lance. As well as Ms Morgan,

CYFS were represented by Saranna O’Dowd, Louise Cairney and Jill Dawson, while

the Counsel for Child, Cathy Flynn, finally made an appearance in the matter after

nearly three months, although she had made no contact with the children or family to

this point. As well, other concerned professionals attending were Mr Pratt, Ms

Campbell, Ms Gamby, Ms McEnteer, Medenine Moore (counsellor, Te Korowai

Hauora), and Gretta Matafeo (Kai Ahwina). In the first segment of the conference, Mr

Pratt summarised to the meeting all of the events set out in writing in his letter to

Maureen and his subsequent affidavit. He was at pains to make clear that he had

witnessed Patricia saying to Ms Matich and Ms Blisset (and probably in her general

resistance to going with them on 21 February to those who took her away also) that

she did not feel unsafe at home and that she did not want to live with anyone

else.234Although Ms Matich was not now involved, there is therefore no possibility

that any of the CYFS staff dealing with this matter were unaware of Mr Pratt’s

position on Patricia’s removal, nor of Patricia’s feelings about the situation at home

with Maureen. He had told those participating at the time, he had phoned the office

immediately afterwards, the school had written to complain, and now he was spelling

it out to those new participants at the May FGC. This, it may be noted, was again

prior to Matich’s affidavit stating under oath that such things had not happened.

233 Joy Gamby, report re Mark Marriott, 3 May 2000. Doc 153. 234 Pratt, affidavit. Doc 182.

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The conference lasted for 6½ hours. The outside professionals remained for the

first two hours, and with the three Maori social workers the whanau reached a

detailed, 10-point plan for resolution of the matter. These points included, amongst

others:

• The children be returned to the case of the mother as soon as possible, but

remain with Tania Mapu until that could be arranged.

• Maureen’s CYFS-imposed restricted access to the children be lifted

immediately.

• Continued support to the family would be provided by the whanau and the

Maori social services.

• A full needs assessment of the family would be done by the Nascent team, of

Auckland Hospital.

• Maureen and Hugh would undertake additional training to better equip them

for parenting.

This plan was unanimously agreed to by the whanau members, who co-signed it

over the next few days.235

The report filed by Kay Morgan, the CYFS officer who had chaired the

conference, was substantially at variance with these documents signed by all the

whanau members who had attended and agreed unanimously. First, she said that two

matters had been considered: the Section 78 custody order, and section 14 (1)(a)(b) of

the CYFS Act 1989.236 The whanau members, though, were clear that only the second

of these two issues was put before them and that they did unanimously agree that

Mark and Patricia were not in need of care and/or protection as defined in s 14

(1)(b).237 In fact, they said they were actually directed by Ms Morgan to consider only

the s 14 point, not the s 78 custody order. They also unanimously agreed that neither

uplifting was justified nor handled properly by CYFS.

Secondly, Ms Morgan reported that:

The Whanau did not reach agreement that the children are in need of care and protection. The matter is therefore referred back to the Court.

235 Agreement and Plan concluded at Family Group Conference…. 4 May 2000. Doc 160. See also other versions Docs 154A. 236 Kay Morgan, Record of Decisions and Recommendations Made, and Plans Formulated, by Family Group Conference under Part II of Act, 4 May 2000. Doc 166. 237 Doc 160.

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The Whanau have asked to be informed of the Court date.238 This was a direct misrepresentation of the truth, and it was done in yet another

formal document put before the Court, certified by yet another CYFS officer as ‘a true

and correct record of the decisions, recommendations and plans of the conference’. It

is clear and well documented that the whanau did reach agreement and that that

agreement was unanimous. The agreement was that the children were not in need of

care and protection. What none of them agreed with was the CYFS position that the

children did need care and protection from the Service. The situation in which the

whanau were left was that they had attended the CYFS conference, they had sat

together in the conference controlled by the CYFS officer, they had considered the

issue put before them by the CYFS officer, they had roundly rejected unanimously the

CYFS assessment of the position, they had also rejected completely the CYFS

handling of the entire matter, they had recommended the return as soon as possible of

the children, and with professional assistance they had formulated a detailed plan for

addressing the needs of the children and returning the children to their mother. They

had therefore played the whole game and had done so entirely by CYFS’s rules. This

however was all set aside by the same CYFS officer, apparently solely on the basis

that they did not merely rubber stamp the CYFS position. As regards Ms Morgan’s

statement of certification, she was wrong in stating that no agreement had been

reached, and she omitted entirely the recommendations and plans that the conference

did indeed make. Her signed statement was therefore incorrect or incomplete in every

respect.

Although she was not present at the FGC, Ms Matich later defended Ms

Morgan’s version, saying that Section 28(b) requires the Coordinator ‘to ascertain

whether the Confe rence agrees the child is in need of care and protection’.239 The

FGC did not agree that the child(ren) needed care and protection, so the Coordinator

recorded a non-agreement. But that is not what Ms Morgan’s wording is—‘did not

reach agreement’ implies a split vote, not unanimity in opposition—and Ms Morgan’s

version says nothing about what the FGC did agree to unanimously: the return of the

children to their mother’s home care. Alternatively, ‘did not reach agreement’ means

that they strove to agree that care and protection was needed, but were unable to reach

238 Doc 166. Emphasis added. 239 Elizabeth Matich, affidavit, 14 July 2000. Doc 235.

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that goal, which was of course the CYFS position. To this extent, then, Ms Morgan’s

version, a report to the Family Court, is actively misleading; a more accurate

statement would have been that the FGC ‘did not agree’ that continuing care and

protection was necessary. I note that Ms Matich questioned the admissibility in

evidence in later litigation of ‘Maureen’s record’ on the grounds that the proceedings

of FGCs are privileged.240 If that were so, what redress do the members of the FGC

have against misrepresentation of the FGC by the CYFS staff, as is alleged in this

case? ‘Maureen’s record’ was signed unanimously by the FGC members, so arguably

no-one was being prejudiced by such disclosure.

Faced with such an official record, Maureen and Hugh again appealed to MP

John Tamihere, recounting the problems, attaching a copy of their minutes and Ms

Morgan’s record, and pointing out that: ‘The Whanau have reached unanimous

agreement with respect to the welfare of the children, did so in accordance with the

law, yet are apparently are so far powerless to be recognised!!’241 They told him that

they were aware of many other families in the district feeling similarly victimised by

CYFS and that if a ministerial inquiry could be held they were prepared to gather

other such families to give evidence and ‘provide constructive and professional

implementation of the Act’.

Maureen and Hugh also wrote to Maanu Paul, then Chairman of the New

Zealand Maori Council, requesting the Council’s support in identifying legal grounds

on which to question CYFS conduct which damaged the aroha and unity of

whanau. 242 They set out the background with which Maureen had contended for 18

years prior to the present events and the way in which Maureen’s disclosure of this

past to gain help for her whanau had been ignored at the time by CYFS when their

help was needed and was now used against her in a punitive manner. They also

described the present crisis, the CYFS failure to even attempt to provide for Mark’s

special needs since uplifting him, and the way in which even the recent FGC was

misrepresented falsely against them. They alleged directly that the ongoing CYFS

behaviour was an attempt after the fact to justify the Service’s own earlier

inappropriate behaviour by discrediting the mother.

240 Elizabeth Matich, affidavit, 14 July 2000. Doc 235. 241 Maureen Reti and Hugh Smith to John Tamihere, 10 May 2000. Doc 163. 242 Maureen Reti and 5th Dimension Resources Trust, 11 May 2000. Doc 164.

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Shaping Criminal Charges May-July 2000

Without reference to Maureen, Patricia was now taken to Tauranga on 23 May

for a diagnostic interview with Julie Amanda Mechen, an experienced social worker

within the Specialist Services Unit there.243 Patricia had been referred by Saranna

O’Dowd as ‘there were several comments made to [Mark’s] interviewer, i.e. Fiona

Strange, which highlighted concerns for Patricia, and how Hugh Smith treated her’.244

What those comments or concerns were was never identified, the innuendo left

hanging. Patricia confirmed that she had not seen the disciplining—a smack on the

bottom with a bamboo stick—but that Maureen had told her that she and Hugh had

done it. When asked about Hugh living with them, Patricia was ‘very definite and

immediate in her responses’, and ‘her affect was angry and sharp’.245 She told Ms

Mechen that Hugh, who was an ‘alright person’, smacked her with his hand and the

bamboo stick and that this made her angry with him and begin to hate him. She

immediately replied ‘no’ when asked further about her body being injured, could

apparently think of nothing particular when asked about the worst thing to have

happened to her, and when asked if she hurt herself at times she only responded that

she could stop circulation in her arm by squeezing hard. It was made clear that any

arguments between Maureen and Hugh were verbal only and defused by one or other

leaving the site.

With regard to more explicitly sexually oriented inquirie s, Ms Mechen reported:

I asked Patricia amore about her body and when asking if she had private places she withdrew and became disengaged. She remained like this as I inquired about naming these parts and she stated they were your bottom and stomach. To clarify her understanding required me to be more direct in my questioning and I asked her where it was she went poos and wees from. She then stated she used her vagina for wees. Patricia’s presentation indicated she was greatly disturbed by these inquiries and could not tolerate the distress this material generated for her.246

243 Julie Amanda Mechen, affidavit, 12 July 2000. Doc 222. 244 Julie Mechen, Diagnostic Interview Report, undated. Attached to Doc 222. 245 Mechen, interview. Attached to Doc 222. 246 Mechen, interview. Attached to Doc 222.

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Ms Mechen, as with all other CYFS staff, seemed very concerned to investigate

the enemas in detail, even when their nature, place within the 5th Dimension treatment

scheme, and lack of sinister purpose were made plain.

From Patricia’s apparent reluctance to discuss her body with a complete

stranger, whom she had gone to see to discuss Mark’s disciplining and their removal,

had the most sinister interpretation placed upon it by Ms Mechen. Although she was

discussing such matters with a 10-year old, who would soon be so traumatised by the

medical exam of her genitals, Ms Mechen assumed the reticence was probably due to

sexual abuse.

Patricia’s change of affect and presentation when asking her about hr body indicated of [sic] significant disturbance. Although not making any statements with respect to sexual abuse and saying that she would tell her Mum, in my opinion her being a sexual abuse victim cannot and should not be ruled out. Patricia’s presentation is of serious concern and based on this and her statements about her and Mark’s treatment at the hands of her Mother and Hugh Smith, I am of the opinion that Patricia is unsafe to return to the care of her mother. Referral of Maureen Reti for a parental assessment is required to determine her ability to care for and protect her children. 247 She therefore recommended that a Care and Protection Resource panel be

informed of the outcome of the interview, that Patricia be referred to a doctor for a

full DSAC check, that Patricia be assisted to get ACC funding for counselling to deal

with the physical abuse she had apparently disclosed, and that Maureen be referred for

a ‘parental assessment’.248 It was this report that was the reason given for the medical

examination of Patricia along with Mark, although it was not done for nearly another

two months. Ms Mechen later produced an affidavit in support of the CYFS

applications which added nothing but simply summarised or repeated segments of the

23 May report.249 The irony here may be noted, that when Maureen and Hugh did take

Patricia for ACC counselling—CYFS never even tried to get any for Patricia although

here recommended by their own person—they were declined, although the trauma

was admitted, as the real damage she needed it for was all done under CYFS ‘care and

protection’. Another question arises as to why CYFS—allegedly under the paramount

principle of acting in the best interests of the children in their care—felt it necessary

to pursue the sexual abuse innuendos (i.e. pouring more guilt onto Maureen and

247 Mechen, interview. Attached to Doc 222. 248 Mechen, interview. Attached to Doc 222. 249 Mechen, affidavit. Doc 222.

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Hugh), but ignored the recommendation from exactly the same source for the

provision of something positive, in the form of counselling. Could it be that their real

interest/agenda/priority was not to provide for the children? On the same point, CYFS

made no effort to arrange any family/parenting assessment (another positive step

Mechen also recommended); Maureen herself did with Hauora Waikato some months

later on her own initiative.

Although Maureen had not been asked for permission for this videotaped

interview, Tania Mapu had, although it is clear that the reasons for this and the other

taped interview with Patricia were not given to her such that her consent was

informed. Tania agreed to the first interview although she had doubts about whether it

was necessary since the inquiry had been about Mark. CYFS then asked for a second

videotaped interview to which she also agreed, although she had no idea why they

were doing them.250 Elizabeth Matich also commented on this interview, although she

had not been involved or present, pointing out that Tania had given consent and

accompanied Patricia.251

Hugh’s comment on this interview, once Ms Mechen’s affidavit was available,

was that Ms Mechen was reading Patricia entirely wrongly. Far from being

‘emotionally detached’ through embarrassment caused by assumed sexual abuse, she

was in his opinion ‘assessing for herself the purpose of the leading questions she was

being asked’, particularly given that they were only appearing three months after the

children’s removals.252 He asserted further that this supposedly professional

interviewer—‘a culturally insensitive adult who she was supposed to trust’—was

probing Patricia verbally as the doctor would physically on issues to do with her

genitalia and that this was offensive to Maori, let alone any 10-year old girl.

Maureen put the same matter more strongly, saying that the sexual abuse

insinuation was ‘a figment of the interviewer’s imagination’, that Patricia’s

withdrawal was caused by Ms Mechen’s ‘total disrespect, lack of knowledge and lack

of courtesy to my daughter’s cultural background and her moral upbringing’, through

‘insulting, leading questions looking to justify Julie’s hang-up about sexual abuse’.253

Maureen concluded from the report that ‘the alleged “indications of significant

disturbance” came from the interviewer’s own closed mind which failed to see that 250 Tania Mapu, affidavit, 13 July 2000. Doc 233. 251 Elizabeth Matich, affidavit, 14 July 2000. Doc 235. 252 Hugh Smith, affidavit, 2 August 2000. Doc 264. 253 Maureen Reti, affidavit, 8 August 2000. Doc 269.

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Patricia’s reaction was provoked by the interviewer’s own lack of respect for the

sensitiveness of the enquiry about Patricia’s body and the interviewer’s ignorance that

this topic is sacred in our culture’.

Clearly, Maureen and Hugh had the more accurate appreciation of Patricia’s

response. As Patricia herself later told Laven, the CYFS interviewers, not Mechen

only, did not believe her whatever she said and misused the interviews to formulate an

entirely inaccurate portrayal of the family’s life. Laven reported:254

Patricia described subsequent interviews she had asking about her treatment at home and whether H Smith had ever touched her indecently. She recounted telling the interviewers that she felt safe in her mother’s care and that she had not been touched indecently [had this line of questioning been pursued from the beginning and not just starting with Mechen?]. However, she said that when she read the relevant reports from CYFS ‘they twisted every word I had said’ and ‘That’s why now if I see a member of the CYFS office I just mouth off, swear to myself.’ While agreeing that CYFS had and have a responsibility to ensure the welfare of

children they perceive to be in trouble and danger, one wonders at the rationale for the

apparent obsession with sexual abuse relating to the enemas, but also, in a case where

the problem was a caning of a boy, a girl was being quizzed, apparently repeatedly,

over whether the stepfather was indecently assaulting her. What is the reasonable or

necessary connection between the two issues?

On 30 May, John Henderson wrote to Maureen that under a 1996 agreement, the

CYFS would be applying for ‘child support for a formula assessment for the children

presently in the Chief Executive’s care’.255 There was no explanation of what a

‘formula assessment of child support for children who are in care’ might actually be,

nor of what impact this might have on Maureen. Could it mean that some assistance

might finally be given Maureen to help her with supporting her children? Or might it

mean that CYFS were now going to use IRD, without consultation or other more

conciliatory measures, to compulsorily extract money from Maureen, according to

some ‘formula’, to pay for the CYFS care of the children which she and the whanau

did not wish them to have anyway? Was it the ‘parental assessment’ Ms Mechen had

recommended—although that seemed to be related to Maureen’s parenting skills

rather than the payment of child support.

254 Hans Laven, psychologist’s report, 3 December 2002. Doc 995. 255 John Henderson to Maureen Reti, 30 May 2000. Doc 165.

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Mark, meanwhile, was becoming increasingly unsettled. Tania Mapu and her

family had now moved into Paeroa, too, and he was attending Pariwai School—his

third school in less than three months. On 4 May, the principal reported that in the last

fortnight he had received at least three detentions for disruptive behaviour,256 and five

days later it was noted that he had been ‘diabolical’, but his classroom teacher was

reporting an improvement following an additional two hours per day teacher aide

assistance and being kept more on his own. 257 He was not making friends and the

other children were complaining about him. Even in the cross country race he did not

do well ‘possibly due to divided loyalty to different schools’. It may be noted that any

support Mark was receiving at this time was through the school system—CYFS had

cut him off from his home environment and the treatment and support he received

there, but had failed to provide any alternative. The comment about the cross country

is also suggestive of the emotional upset resulting from his being shifted around while

in their care. Other school notes indicate his ongoing disruptiveness subsequently. 258

On 13 June, on her own initiative—and consistent with the longstanding pattern

of her attempts to gain professional assistance for her children—Maureen took Mark

on the follow-up visit to see Dr David Newman, a specialist paediatrician at the

Children’s Clinic of Waikato Hospital.259 Dr Newman’s report was copied to

Maureen, Special Education Services and Tania Mapu as well as to Elizabeth Matich

at CYFS Paeroa. Dr Newman noted that Mark was now at Thames Primary School,

and that a behavioural modification programme had been implemented there for him

with Shane Graham from Te Korowai Hauora. He also noted the family agreement at

the Family Group Conference, but that ‘this was not accepted by CYFA and the

matter has gone to the Family Court’.260 He specifically checked Mark for Foetal

Alcohol Syndrome and found that he did not have it, but a combination of partial

symptoms that amounted to ‘static encephalopathy alcohol exposed’. He also accepted

that Mark had a diagnosis of ADHD and advised that Mark needed an EEG and

several other specialised tests to investigate his other behavioural issues.

256 Peter Poeschl to ‘Steve and Raewyn’, 4 May 2001. Doc 155. 257 File note, 9 May 2000. Doc 161. 258 Doc 168. 259 Dr David Newman to Dr W. Carroll, 13 June 2000. Doc 173. 260 He apparently mistakenly recorded the FGC as having taken place on 7 June, the date of Judge Neal’s hearing.

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On 1 June 2000, Sandra Keen, Family Court clerk at Waihi, sent out a notice of

a judicial conference to be held on 7 June.261 This was received by Maureen on

Saturday 3 June and 5 June was Queen’s Birthday, giving but 1 day’s effective notice.

This court hearing took place before Judge Neal on 7 June as thus arranged.

Judge Neal noted that there was no proof of service on Maureen and that Hugh had

not been served at all (which took place after the hearing).262 They were there

nonetheless, along with Maureen’s sisters Martha and Tania (who was still the

children’s caregiver). Also present were AM Page, solicitor for CYFS, and Mike

Curtis, appearing for Cathy Flynn, Counsel for Child, who four months on had yet to

have anything at all to do with either the children or Maureen and Hugh. Maureen and

Hugh had filed affidavits on 2 June, which had not been given to the judge and which

he later had to obtain from the Court file.263 Judge Neal noted that Maureen opposed

the declaration and that she and Hugh had complaints, but he did not deal with any of

these. Instead, he directed that Hugh should be served, that by 21 June CYFS had to

file any further affidavits, that Maureen had until 5 July to file affidavits in reply, and

that a two-day defended hearing was to be set. A further judicial conference was to be

held on 31 July. 264

This 7 June hearing appears to have been the first opportunity Maureen had to

place before the Family Court any information or argument to counter the CYFS

allegations and to try to reverse the removal and custody of the children, which had

now gone on for nearly four months. It is unclear why there was no proper notice of

the hearing since there was no urgency about the matter, or evidence put before the

Court from either side in a useful manner—it was not even as if CYFS was prepared

itself. But these circumstances were effective in subverting this opportunity and

obliging the children to remain in CYFS custody for a minimum of another two

months.

On 14 June 2000, CYFS social worker Jill Dawson now in charge of the case

met with Tania Mapu and her daughter concerning Tania’s care for the children. 265

261 Sandra Keen, judicial conference notice, 1 June 2000. Doc 169. 262 Judge Neal’s notes, 7 June 2000. Doc 171A. 263 J.E. Miller, receipt, 2 June 2000. Doc 171. 264 These directions were repeated in a letter to parties from Sandra Keen a week later, but this letter omitted the direction to serve the previous material on Hugh, added another direction that there was to be no oral evidence in chief without leave, and merely indicated ‘a further judicial conference’ without a specific date. S Keen to CYPS et al, 14 June 2000. Doc 177. 265 Hugh’s handwritten notes from discussion with Camellia, 17 June 2000. Doc 183A.

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Ms Dawson told Tania then that CYFS would take further legal steps to keep

Maureen away from the children if she would not stay away. Several weeks

previously, CYFS had told Tania they would not drop the case against Maureen and

Hugh because of Hugh’s ‘old records’—but there is no indication of what such

records might have been. Mark had been telling people that he was starved at home

when being looked after by Camellia. Also at this meeting Ms Dawson told Tania that

Mark was not in fact ADHD, a declaration of CYFS’s and Flynn’s enduring position,

but without any indication of any basis for why they thought this.

The next day, Ms Dawson wrote to Tania following the meeting to ‘clarify’

issues around Maureen’s supervised access to the children. 266 She began with a

crucially misleading incorrect statement:

The Family Group Conference of 4/5/00 could not reach an agreement that would allow for plans to be formed for the children…. In fact, of course, the FGC had indeed reached a unanimous agreement—CYFS

had unilaterally rejected the whanau’s unanimous wishes, including those of Tania

Mapu to whom she was writing. The FGC had also unanimously agreed on a draft

plan for dealing with the children, which CYFS had taken no notice of. So the lack of

agreement was not within the Family Group but between the whanau and CYFS. Ms

Dawson’s statement was a reiteration of Ms Morgan’s earlier incorrect report on the

FGC, but extended now to relate to a care plan rather than just to the need for ongoing

care and protection. Ms Dawson than used that ‘lack of agreement’ to justify retaining

the earlier access supervision arrangements.

New supervision arrangements had been proposed to the Open Home

Foundation, but they were not to begin until no earlier than 24 June and possibly not

then if the Foundation could not oblige, and that they were still to consist only of 2

hours on Saturdays. CYFS was now concerned to find that Maureen coached

Patricia’s netball team and asked Tania herself to supervise Patricia at such times or to

arrange for another ‘aunty’ to do so. Ms Dawson throughout this letter, written 4

months after the children had been taken, repeatedly stressed that Maureen and Hugh

were to have no unsupervised contact with the children and asked Tania to contact

either her or CFC ‘if you feel pressured by family to allow unsupervised contact’. She

told Tania that she had told Parawai School that CYFS did not want any unsupervised

266 Jill Dawson to Tanya [sic] Mapu, 14 June 2000. Doc 178.

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contact occurring ‘through them’ either—which cannot have assisted Maureen’s

relationship with her children’s educators.267 The whole tone is of the letter is to

reinforce the barriers between Maureen and Hugh and the rest of the family who were

being required to police CYFS dictates against which they had already voted

unanimously. But of course much time was passing without any satisfactory

arrangements being made by CYFS to (a) resolve the situation in a way that least

damaged the children and family, (b) provide adequate accommodation for the 2

children—Ms Dawson acknowledged the strain the situation was placing on family

relationships but did nothing more than enforce it, or (c) even regularise the

supervised access after all this time.

Medenine Moore confirmed that Maureen had sought the assistance of Te

Korowai Hau Ora o Hauraki to access mental health services for herself and her

whanau and explicitly stated that this was on Maureen’s own initiative, that it was

done ‘without referral or pressure from any other agency, government department or

service’.268 On the same day, Ms Moore wrote a referral to Hauora Waikato Maori

Mental Health Services.269 She noted that Maureen was ‘most willing’ to progress

matters, although being reticent about signing consent forms due to earlier negative

experiences with other agencies. She also noted that Maureen had tried on ‘numerous

occasions over the years’ to seek assistance, but that ‘these attempts have often

resulted in negative impact on herself and her children’. Nevertheless, ‘it is Maureen’s

request that her whanau be supported in a Maori environment’. Here was yet another

attempt by Maureen to reach out and seek help, and the prospective new providers

were put on notice from the start that this family had already suffered at the hands of

other such who had not given the assistance sought. The referral documents attached

gave the reasons for referral. For Maureen, they were: an emotionally, physically, and

mentally abusive relationship and historical drug and alcohol problems. For Patricia,

they were: historical trauma, witness to violence and violence during pregnancy

period, and periods of separation from her mother. For Mark, they were also historical

trauma from witnessing violence and periods of separation from his mother.

267 Doc 178. 268 Medenine Moore letter, 23 June 2000. Doc 183. 269 Medenine Moore to Ani Kapi, 23 June 2000. Doc 184.

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A judicial conference for all counsel was set down for the Family Court,

Tauranga, for 24 July 2000.270 The two-day judicial hearing was set down to be held

at the Family Court in Tauranga on 23/24 August 2000.271

On the day before affidavits were to be filed by CYFS, CYFS counsel requested

an extension of time for several reasons.272 First, in the interview with Fiona Strange

Mark had told of being beaten with a ‘broom stick’—which is, of course, not what he

said or the social workers had understood him to say—and this was now the subject of

a Police investigation, while Ms Strange herself was overseas until 3 July. The

investigating officer was overseas until 26 June and would need to interview Maureen

and Hugh before completing his investigation. Effectively, the Police had refused to

release information to CYFS until they had completed their investigation. Ms Matich

was also on leave and therefore could not either provide an affidavit or respond to

Maureen and Hugh. Mr Page gave his opinion that a delay was unlikely to prejudice

the interests of either Maureen or Hugh, but that there was possible prejudice to the

children if the Court was deprived of the full amount of relevant information. No

notice was taken of possible prejudice to the children by CYFS failure to expedite

resolution of matters. It is noted that this application was copied to Counsel for Child,

but not, apparently, to Maureen and Hugh.

The reason for this application being withheld from them becomes immediately

apparent. Mr Page’s application had attached a letter from Detective Sergeant

Caldwell of the Paeroa Police. Det Sgt Caldwell stated: ‘The information provided by

these two children has formed the basis of a Complaint and we have launched and

[sic] investigation into the alleged abuse.’ The Police wished to conduct further

enquiries before approaching the alleged offenders, i.e. Maureen and Hugh and stated

that it was in the interest of justice that they did not disclose to the alleged offenders

the background information of the inquiry before interviewing them. While this might

be so in general terms, it is hard to see Sgt Caldwell’s—and thus CYFS’s—point here.

The ‘alleged offenders’ knew only too well that the children had been taken by CYFS

because of the alleged abuse, they had seen court documents to this effect, they had

been ‘interviewed’ by CYFS over the single incident in contention, they knew about

the questions asked of Patricia, they knew Police had been involved with Mark and

270 Sandra Keen, notice of conference, 23 June 2000. Doc 185. 271 JR Furniss, notice of hearing, 16 June 2000. Doc 181. 272 A.M. Page to Registrar, District Court, Waihi. 20 June 2000. Doc 185A.

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that he at least had been medically examined in relation to the disciplining, they knew

why they were not allowed access to the children, they and the whanau knew from the

4 May FGC if not before what was going on, and so on. It is hard to imagine what the

additional hoped-for secrecy was supposed to achieve.

On 29 June, Jill Dawson wrote to Tania Mapu following a further meeting with

her on 28 June.273 She stated she (Dawson) had also met with Maureen to discuss

arrangements. Regarding access, Ms Dawson now approved Tania’s daughter

Camellia as the paid supervisor.274 The two-hour period was relaxed in that it could

now be at any time negotiated between Tania and Maureen. However, any other

contact, such as at sports, must also be supervised but this would not be paid for—

which put a considerable but unrecognised burden of CYFS making on Camellia or

whoever else was used. There was no mention of Open Homes or any other option.

Ms Dawson recognised that Maureen had been expressing concern about meeting

Mark’s specia l learning needs and noted that SPELD would be added at Maureen’s

request to what was being provided already. She also recognised Maureen’s concern

that Mark was lacking in opportunities for sport and activity, but felt that the school’s

‘strong sporting focus’ would be adequate although she also suggested investigating

linking Mark to other groups such as Scouts. She noted that Shane from Te Korowai

had now met with Mark and this would continue while Greta from Tu Awhina should

also be involved. She ended with a note that the children were to spend some time

with their Aunty Martha and asked if Maureen had been advised. Several times she

indicated that the various developments should make Maureen happier, an indication

that change may have been happening only or largely because of Maureen’s advocacy

on behalf of her children and attempts to have the situation resolved.

The next day, Ms Dawson also wrote to Maureen. 275 She reiterated that ‘the

supervised access must continue until the court matters have been sorted out’, but

gave no written reason why the access regime was even in place. She reported that

273 Jill Dawson to Tania Mapu, 29 June 2000. Doc 187. 274 Camellia was the same person, only a few months older, who was also being held out by Ms Matich especially as yet another example of Maureen’s incompetence and lack of care as a parent. Yet here she was being entrusted with a paid responsible supervisory position by CYFS in regard to to same child plus others. Is this not something of a contradiction within CYFS—or an indication of expediency in both cases, ignoring the other situation and dealing with a situation as it suited their immediate needs. In Ms Matich’s case the need was to blacken Maureen, in Ms Dawson’s case the need was to find someone—anyone—to enforce for CYFS the access ban which the department had apparently imposed on its own authority. 275 Jill Dawson to Maureen Reti, 30 June 2000. Doc 189.

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Camellia was prepared to be the formal supervisor of access. She set out the various

educational and sporting opportunities available to Mark at school—interestingly,

noting that the teacher stated that Mark responds to ‘firm and clear instructions’. She

said that Shane from Te Korowai had begun to visit Mark. Finally, she informed

Maureen that Tania planned that the children would visit Auntie Martha during the

holidays. There was no indication of consultation with Maureen about that

development, though, and as it transpired this was something Maureen strenuously

opposed as it would place the children in contact with a convicted child molester—

something CYFS seem not to have checked out, simply going along with the proposal.

By this time, Tania Mapu herself, having participated in the unanimous

agreement of the May FGC and repeatedly trying to make arrangements with CYFS,

was prepared to swear to both the difficulties the CYFS intervention had put her and

her own family under, and to the need and desire of both children to be returned to

their mother.276 She stated:

I find it hard to care for the two children because I know what they’ve been through and what there mum has been through. I feel for them because I have eight children of my own and I know what Maureen is going through without her children. Both Patricia and Mark want so much to be with there mum and I feel the same way. I know Maureen has seeked information in every source of legal areas to help her deal with Mark and his ongoing problems and I also know she was at her last ends trying to keep him out of trouble and also trying to keep him from going down the same path as her older son Lance who is now in prison. Theres been enough suffering on both sides of the family and six months is long enough for the kids to be without there mother and I know it is in the best interest of the kids that they be reunited with there mother without further delay. Likewise, Camellia wrote a first-hand explanation of matters that had been used

against Maureen in the applications for custody without consulting any of the

participants including Camellia herself. She explained how the period in late 1999,

during which she and her partner had at times cared for Mark, had actually been an

opportunity for her own personal development provided by Maureen and Hugh:

They also gave us a place to stay at that time to learn and experience how to cope with the day to day responsibility of a relationship, paying power, food, and other necessities of renting a home. In exchange for me minding Mark for a few hours a day, me and my family could get 24 hours guidance while my Auntie [Maureen] finished her therapy, and helped out part time at the center. I could go up and help out too and the

276 Tania Mapu, affidavit, 30 June 2000. Doc 192.

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people that were there helping were lovely people who helped me out a lot. That’s the kind of people they are. [Emphasis added] She also commented on the ways in which Mark was being dealt with at that

time, with various activities and programmes, also:

My experience with Mark was full-on but always had the support of my Auntie Maureen, to help find solutions when mark got out of hand. The way Auntie handled Mark was to sit him down and talk to him so he would get a better understanding of his trouble which was often lying, steeling [sic] and not coming home when he was supposed to. Finally, with regard to the removal of the children and their continued separation

from Maureen, Camellia stated:

I feel that the kids should be with their Mum and Hugh and I feel very strongly that the kids are missing out on time with their mother, and foster- father. No one can ever take away or deny the love that they have got for their mother. I state that Mark and Patricia do not need care and protection and that they should never have been taken away. At this time, Patricia also swore an affidavit, witnessed by the District Court’s

Deputy Registrar in Thames.277 Whatever legal weight it may or may not carry, it

expressed clearly her view on what had occurred. Beginning with the removal of

Mark, she stated:

CYPFS took the wrong action and wrong understanding from both Mark and I because they didn’t ask Mark how much he took and what the full amount was and what the other half of the story was. I didn’t understand why CYPFS took me away and why they were asking me the sort of questions that they were asking, and trying to get me to say things about my Mum on 21st February 2000. She said Elizabeth Matich was ‘very mean’ as she had not taken responsibility

for the two children and their particular needs. Further:

I think that the CYPFS Officers have handled the case wrong and at first didn’t know what was going on. I feel that CYPFS had no right to take Mark and I out of school and [that they should] have a review on what’s happened in the past 4 years and what’s going to happen in the future for Mark and I. Hugh advised CYFS and the Tauranga Family Court by fax that he and Maureen

would be representing themselves in the forthcoming litigation. 278 On the same day, 4

July 2000, he wrote at length to Mr Roger McClay, Commissioner for Children,

277 Patricia Marriott, affidavit, 30 June 2000. Doc 194. 278 Docs 201, 203.

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complaining of the CYFS actions to date and the way in which the CYFS had

distorted the truth in order to gain court orders and take the children away. 279 For

example, amongst many details he pointed out that Louise Cairney had ‘bragged

about the way she put Elizabeth Matich’s affidavit together’. Also:

There are serious flaws in the conduct of the Paeroa Office. Months passed before token efforts were made to follow up on the interrupted special education and nutritional needs previously put in place by the mother. The supervised visiting rights for the mother which were imposed three months into the separation are scandalous, illegal and usurp authority. There has been no such order from the Court and it was not considered or requested at the FGC. The appointed lawyer for the children has never met or spoken to the children but months after the 10 year old was uplifted, she has twice been taken out of school for evidential videos where whanau have been refused admission. On these occasions the girl has been asked leading questions, not of [i.e. with regard to] herself but of others. Hugh’s complaint was specifically about the CYFS Paeroa manner of operation,

especially of Ms Matich and other social workers who, he believed, were not being

effectively supervised, and who were also not only acting in an offensively

authoritarian and insensitive manner but deliberately misleading both their superiors

and the courts. This had resulted in a situation where:

[Paeroa Manager] John Henderson has accepted carte blanche the words of Elizabeth Matich and Serana O’Dowd but in doing so he is preventing himself from discovering the truth of the witnessed discussions which did take place, and therefore he is not seeing the racial bias, the intimidation, the prejudgment, the rudeness, the arrogance, and the other human factors which have led to this family being needlessly broken up. [Emphasis in original]

Hugh therefore asked for the true facts to be evaluated by responsible persons in

authority, including the actual minutes of the FGC and the situation as it now stood.

Police Investigation and Charges July 2000

On the morning of the next day, 5 July 2000, Detective Macky of the Waihi

Police finally interviewed Maureen and Hugh with regard to the alleged assault.

Hugh’s observation of this was that Det Macky arrived at 8:45am, that he ‘has had no

time to make an appointment but is knocking on the door under Orders to press on

279 Hugh Smith to Commissioner for Children, 4 July 2000. Doc 202.

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with the Prosecution’, also that Mark had been interviewed on the previous day and

had admitted that some of what he had said in the original video was untrue.280 There

is nothing in the transcripts which bears on those allegations. Detective Macky’s

jobsheet confirms that he went to 179 Normanby Road at 8:45 am and asked them to

come to the Paeroa Police Station for interviewing and then the administration of

those interviews.281

In her interview, Maureen282 emphatically denied that Mark had been assaulted,

she made clear that the discipline resulted from Mark’s ongoing stealing culminating

in the theft of $100 and its denial, that he was struck on the buttocks only, that she

held him only to stop him wriggling and getting struck on the back, that normally he

was disciplined in numerous non-violent ways and sometimes with a smack, that he

and Patricia were disciplined with the bamboo stick ‘once in a blue moon’. She was

also emphatic that she had only disciplined Mark and not assaulted him. She denied

that there had been any blood drawn or coming from his anus, but that ‘Social

Welfare’ had accused her of putting a ‘pipe up his backside’ which she could only

think referred to the enemas that were part of the normal and ongoing treatment for all

Fifth Dimension clients.

Hugh likewise put the discipline in context of Mark’s ongoing and escalating

behavioural problems, known to CYFS and the Police, Maureen’s extensive and

enduring efforts to provide for her children and get Mark the treatment he needed, the

lengthy discussion they had had with the boy and his admission that he deserved a

hiding.283 He stated that Maureen had held Mark so that Hugh could be sure of

striking the right area and that although Mark had been crying at the time, by the time

he had showered and Patricia had come home, he was laughing and joking with her

about it. As had Maureen, Hugh pointed out that Maureen had contacted the school

and the principal, Mr McNair, had not noticed anything untoward until Mark’s

reticence at swimming time. They also both denied that just because the discipline left

marks it constituted assault. Interestingly, the transcript shows Det Macky asking very

few questions of Hugh and a significant proportion of those being related not to the

280 Hugh’s handwritten notes, 5 July 2000. Doc 204. 281 PS Macky, jobsheet, 5 July 2000. Doc 218. 282 NZ Police Transcription of Videotaped Interview with Maureen Reti, 5 July 2000. Doc 205. 283 NZ Police Transcription of Videotaped Interview with Hugh Alan Smith, 5 July 2000. Doc 206.

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incident in question but to the Fifth Dimension and other tangential matters—

presumably again following the trail of the enemas.

Also on 5 July 2000, John Henwood, Social Work Supervisor at CYFS Paeroa,

wrote to Dr Susan Clements of Thames, telling her that Patricia had come into CYFS

care following ‘physical abuse’ of Mark.284 He attached a copy of a ‘diagnostic

interview’ recently conducted with Patricia—which is not now with this copy of the

letter. He continued:

The report recommends a full DSAC medical and I note the diagnostic interview details physical assaults of Marion as well as frequent enema [sic]. This comment appears to be an implied request for Dr Clements to conduct such

a DSAC medical. Mr Henwood noted the Police inquiry which would be completed

by 12 July and asked for ‘a brief verbal report of the examination pending receipt of

your full report in due course’. This request confirms that he was indeed asking for a

full DSAC examination to be done as that was the only procedure previously referred

to. Also, there appears to be no other medical reason for asking for a medical

examination of the children as Mark, particularly, had been seen by Dr Hilligan in

February and then Dr Newman twice, in May and June.

Two days later, on 7 July 2000, Jill Dawson advised Maureen that the Waihi

Police had asked to interview Mark on the following Monday (without saying

why).285 This was apparently the first time they had done so, at the conclusion of their

inquiry. Ms Dawson also advised that a medical examination had been requested for

Mark (presumably by the Police) and that the interviewer of Patricia had

recommended one for her too, so appointments had been made with Dr Clements for

these—although Maureen was not told when or where these would take place. There

is no information as to what form these examinations might take. She asked Maureen

not to discuss the ‘interviews’ (not the ‘appointments’) with the children, but since the

children would have already known of the interviews, she must have been meaning

giving them advance warning of the medical examinations. It is not clear why CYFS

284 John Henwood to Dr Susan Clements, 5 July 2000. Doc 207A. 285 Jill Dawson to Maureen Reti, 7 July 2000. Doc 208. Much of this is repeated in a file note Doc 210A which includes an undated note contemplating additional examinations. If that note is referring to Mark (the name has been blacked out), then the first examination would refer to that of Mark on the day after the removal and shows that CYFS, five months on, wanted further examination ‘specifically to check out effect/signs of enema’. What the point of that would be is not stated, but one can only presume that they were imagining some form of anal sexual abuse.

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should believe it necessary that the children should have a physically invasive medical

examination sprung on them without warning.

At this time, Hugh and Maureen themselves prepared affidavits regarding the

last six months’ events.286 They made clear the history of CYFS failures with regard

to Maureen and her family and the many inadequacies they perceived in the CYFS

handling of the current situation, including the misrepresentation by CYFS of the

FGC outcome. They expressed their anxiety about the effects on the children who had

been deceived by the CYFS officers and put into other unsatisfactory situations by

CYFS without due attention to their needs. They attached several key documents,

including the FGC resolutions signed by the whanau, Lance’s letter, the reports from

Ms Thomas and Ms Campbell regarding the CYFS meetings they had witnessed, and

the letters of complaint Maureen and Hugh had already made to CYFS without result.

What seems to be the first Police interview with Mark took place on 10 July

2000 at the CYFS Paeroa offices in the presence of Seranna O’Dowd.287 The only

matter recorded on the jobsheet as having been discussed was the enemas, what they

were and how they were administered. Nothing at all was said in this interview about

the alleged assault that was the actual subject of the impending charges. Mark

concluded by explaining that all three members of the family had these enemas, and

saying: ‘It doesn’t hurt me and it has not caused my bottom to bleed.’288 Mark made it

clear that only Maureen—never Hugh—administered these enemas to both himself

and Patricia. This statement by Mark about the process not hurting him and his bottom

never being caused to bleed was given prior to the medical examination which

pursued the question and contradicts the very reason given for having the examination

at all.

Also, this may not be all that was said in Mark’s interview. Hugh subsequently

swore that Detective Macky told him the next day that at this interview Mark had

admitted to both the various behaviours that formed the context of the beating and to

having said things that were untrue in his interview with Ms Strange.289

286 Docs 211 and 212. 287 PS Macky, jobsheet, 11 July 2000. Attached to Doc 218. NB that the date of the interview is on the sheet as 10 July but the date of the sheet itself is 11 July, perhaps reflecting when the notes were later typed up. The handwritten notes at the end of the Doc 218 attachments are undated, giving only the 1200 hrs time. 288 PS Macky, jobsheet, 11 July 2000. Attached to Doc 218. This was also acquired by their counsel on 11 October. Doc 336. 289 Hugh Smith, affidavit, 2 August 2000. Doc 264.

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The Medical Examination 10 July 2000

The examination by Dr Clements of Mark and Patricia also took place on 10

July 2000. Dr Clements noted that:290

The examination had been requested by John Henwood, social worker, CYFS, Paeroa due to a disclosure by Mark that he had been given ‘cleansings’ and ‘enemas’ by his mother. Mark had apparently reported some bleeding from his bottom following these enemas. Maureen attended along with Ms Dawson. In Maureen’s words, while Ms

Dawson waited outside with the children she spoke to the doctor about what was to

happen: ‘I ask her what was the examination for she replied just a normal medical

examination and she normally does this for CYPFS.’ The examination was to be just a

normal exam plus a check of the back passage.291 Dr Clements’ report set out in detail

Maureen’s explanation of the enemas, both their administration and why they were

believed necessary.

A major feature of the exam was concern with the anus of each child. This

followed from CYFS having taken Mark to say after he was uplifted that he had been

bleeding from the rectum following the beating—although as noted above Dr

Clements’ report was that they were particularly concerned with the ‘cleansings’ and

‘enemas’, and she understood that the bleeding was supposed o have followed those

rather than the beating. Maureen explained about the cleansing enemas, that Mark had

been treated 4-5 times over the same number of months and that the last had been in

January. When Dr Clements asked her if Mark had ever bled from the rectum,

Maureen said no and invited her to ask Mark himself: ‘which she did in front of me

and Patricia and Mark replied No I said bruising not bleeding.’292 Dr Clements’

reported that she had asked him if he had bled after the enemas and that he talked

about bruising when he had been hit, ‘but did not clearly describe bleeding’. She

commented: ‘He may have confused “bruising” and “bleeding” when talking

previously.’293

290 Dr Susan Clements to John Henwood, handwritten report, n.d. (faxed 12 July 2000). Attached to Doc 218. This handwritten report is identical to her affidavit, dated 12 July 2000. Doc 223. 291 Maureen Reti, handwritten notes. Doc 216. 292 Maureen Reti, handwritten notes. Doc 216. 293 Dr Clements, handwritten report. Attached to Doc 218.

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Dr Clements examined both children in this way and also examined Patricia’s

anus. She did not examine Patricia’s rectum as it would have been invasive and ‘I felt

neither of these [techniques of doing so] were appropriate or necessary.’294 However,

during the anal inspection she did notice an unusual line on Patricia’s genitals and

‘felt this needed a closer inspection’. Then:

I asked her to lie on her back and a quick visual inspection of the Posterior Fourchette and the Vaginal Vestibule was made. This showed no abnormality and the line seen previously was presumed to be the Median Raphe, a normal anatomical finding. There were no indications that more extensive examination was required at this time and no swabs were taken. 295 This wording indicates that Dr Clements had not originally intended to conduct

a genital examination of Patricia, but had done so on observing the unusual line.

There is no mention in Dr Clements’ report of her having sought permission for this

additional aspect of the exam nor of her explaining why she was doing it. Dr

Clements reported only her clinical results, but other aspects were not commented on.

Again in Maureen’s words:296

While the Doctor was examining her there [i.e. vaginally] I was talking to Patricia asking her was she alright the shock in her eyes when she was touched because she has never been touched there by any one. Patricia put her pants on and I gave her a big hug. Mark was laughing and [thought] it was a big joke. The Doctor stood beside the Bed. I told Mark that it was not funny for girls to go threw this.

Maureen also disputed that the genital examination was a ‘quick visual inspection’ as

actual touching also took place. She was standing beside Patricia and holding her

hand as this was taking place.297

Dr Clements found that physically Mark was a ‘normal nine year old boy’, that

‘examination of the rectum was normal’, and that ‘there were no signs of injury

elsewhere on his body.’298 Regarding Patricia, Dr Clements reported that:

She appeared to be a normal 10 year old girl. There were no signs of injury on any part of the body. Examination of the anus was normal.

294 Dr Clements, handwritten report. Attached to Doc 218. 295 Dr Clements, handwritten report. Attached to Doc 218. 296 Maureen Reti, handwritten notes. Doc 216. 297 Maureen Reti, affidavit, 8 August 2000. Doc 269. 298 Dr Clements, handwritten report. Attached to Doc 218.

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Dr Clements found no signs of injury resulting from the enemas, although

enemas properly administered should not cause damage and a long time had elapsed.

She stated:

In my opinion these enemas were administered by Maureen on her children in the firm belief that was [sic, what] she was doing was of benefit to them and that she was NOT using them as a form of abuse. [Emphasis in original]299 She did disagree on medical grounds as to whether the enemas were of any

actual benefit to the children for the various conditions they were supposed to be

treating—mood swings in Mark and pimples and vaginal discharge in Patricia—and

she speculated whether Mark might have associated in his mind the enemas with

punishment for his difficult behaviour. But these issues are irrelevant to the purpose

of the examination and CYFS/Police investiga tion of abuse. Yet these comments by

Dr Clements were frequently cited subsequently by CYFS and Flynn as if they were

yet more evidence of Maureen’s inadequacy as a mother or some other form of

wrongdoing.

Once again, CYFS failed to communicate, this time with the children’s

caregiver as to exactly why and how they wanted the children examined. Tania Mapu

stated:300

I agreed for the medical examination to be done but I was not aware of what kind of examination was to be done. I was very upset when the children came back on that day because Marion had been so embarrassed and so withdrawn that I knew something was wrong. I asked Marion what was wrong and she replied, ‘I’m feeling yuckie auntie’. However, this was not the end of the incident. Maureen, too, had noticed that

although Mark appeared untroubled, Patricia was not all right:

I noticed Patricia was off colour and very very quiet. I kept asking her is she alright. I told Jill Dawson on the way home from calling in to the youth centre that I was going to get some one to see Patricia. She said why. I told her that what Patricia went threw was not nice and that she was still very quiet because she has hardly said a word. She said we me and her can talk to her while we let Mark off at the drive way which was done. W[hen] Mark left the car Jill said to Patricia that unfortunately women go threw those uncomfortable things all the time and it is embrassing and it will all go way soon like nothing happen. 301

299 Dr Clements, handwritten report. Attached to Doc 218. 300 Tania Mapu, affidavit, 13 July 2000. Doc 233. 301 Maureen Reti, handwritten notes. Doc 216.

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Maureen and Tania did then take Patricia to the Emergency Department at

Thames Hospital where she was seen by Dr SM Genner.302 Tania’s comment was:303

I then rang her mother, asked her to come over to comfort her daughter and went with mother and daughter to Thames hospital to see if anything could be done to help Marion. That trip was of no help. Confirming that Patricia’s reaction to Dr Clements’ examination had been

neither concocted by Maureen nor of little consequence, recounting this event about

10 minutes into the hour-long interview caused Patricia to break down to the extent

that ‘she then remained more or less tearful throughout the interview’. Laven

reported:304

Her voice became quiet, drawling and less distinct and tears began streaming down her face without sobbing. It was clear that her recall of this experience was highly upsetting for her. She said that she had been told only that the doctor was going to check her eyes, ears and general health, but without warning she was having her ‘private parts’ touched and examined. She said that no explanation or feedback was given, ‘nothing, they just left the room’. She said that after the examination she felt ‘distant from everyone’, she cried and ‘went to sleep because I didn’t want to think about it’. Her aunt subsequently took her to the hospital because of her prolonged distressed state. Patricia described herself as ‘just lost’. When I [i.e. Laven] acknowledged her distress in recounting this she said ‘I can’t trust the doctor any more cause I don’t know whether they’re telling me the truth or not.’ The next day, 11 July 2000, after Dr Clements’ examination but before her

report was received, the Police arrested Maureen and Hugh and charged them with

assault with a weapon and assault on a child. This took place at 5:20pm and they were

bailed and released by 6:05pm.305 Patricia was with them (following her medical

trauma the day before) and observed the whole proceedings, having at her own

request stayed with Maureen overnight ‘for mother’s comfort’.306 At this time,

Maureen and Hugh raised their concerns about the examination of Mark and Patricia.

Det Macky noted that:

I explained to them that it had been a combined decision between CYPS and Police being myself. The medical would have been requested by CYPS but it was definitely a Police/CYPS joint decision.

302 Dr Genner’s notes are illegible in the copies provided. Doc 214. 303 Tania Mapu, affidavit. Doc 233. 304 Hans Laven, psychologist’s report, 3 December 2002. Doc 995. 305 PS Macky, jobsheet, 11 July 2000. Doc 218. 306 Maureen Reti, affidavit, 8 August 2000. Doc 269.

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They indicated they’d be forwarding letters of enquiry in relation to that. There was a later discussion [during] which I conceded that my understanding was that the examination was to be anal only [—presumably in distinction from vaginal in Patricia’s case].307 Detective Macky apparently said other things too. Hugh swore that he had told

Hugh while they were being fingerprinted and photographed that he had interviewed

Mark for 20 minutes just the day before and that at that time ‘Mark had admitted to

lying, stealing, being generally naughty, and saying things on the video which were

not true.308

The statement made to the Police by Mr McNair about the day of the removal

has been discussed above.309 It contains a number of contradictions or variations from

his other statements and is generally less favourable towards Maureen than his other

accounts.

On 12 July 2000, Maureen wrote to John Henderson, CYFS Paeroa Site

manager, asking three questions about the children’s medical examinations:310

1. What was the purpose of each examination? 2. Who requested each examination? 3. Define your department’s definition of a medical examination.

On the same day, she also wrote to Dr Clements asking her the same three questions,

and also to Detective Macky.

Mr Henderson’s reply was prompt and to the point:311

1. Both examinations were to ensure the children did not have any medical Condition requiring medical treatment.

2. A Social Worker requested the examinations on the advice of other Professionals.

3. An examination by a registered medical practitioner.

Dr Clements’ reply was:312

1. The purpose … was to determine if there had been any physical ill effects from the administration of enemas to them approximately six months before.

2. The examinations were requested by NZCYPFS, Paeroa. 3. When I am requested to do an examination by NZCYPFS I do as

thorough an examination as is deemed necessary by the clinical history, and as indicated by the findings during the examination.

307 PS Macky, jobsheet, 11 July 2000. Doc 218. 308 Hugh Smith, affidavit, 2 August 2000. Doc 264. 309 McNair, statement to Police. Attached to Doc 218. 310 Maureen Reti to John Henderson, 12 July 2000. Attached to Doc 227. 311 John Henderson to Maureen Reti, 14 July 2000. Doc 227. 312 Susan Clements to Maureen Reti, 23 July 2000. Doc 227.

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Detective Macky’s reply—written a month after Maureen’s request and nearly a

fortnight after the Family Court hearing was scheduled—was:313

1. A Complaint received from your son contained an allegation that he had had tubes inserted into his arms and he had bled from there. You confirmed that you had administered enema’s [sic] to both children. The purpose of the examination was to ascertain if there was more to it than that or if there was any permanent injury.

2. This examination would have been requested by myself in conjunction with CYPF Service.

3. A Medical Examination would mean a full examination. The circumstances in each case would determine the extent of individual examinations.

Several points arise. First, and most significantly, what the doctor was doing

was much more specific than Mr Henderson’s rather disingenuous explanation. His

response for CYFS can be taken as broadly as a general concern for their health, as in

a regular check-up in case they (only now in July) needed treatment, and contains no

indication that there was a DSAC examination involved. She understood was

searching, as she had been implicitly directed, for indications of physical and sexual

abuse, especially with regard to the reported enemas which CYFS clearly suspected of

being other than therapeutic. Detective Macky answered with specific reference to

Mark, ignoring Patricia completely, and also focused on the potential abuse and harm

from the enemas specifically. 314 No-one mentioned the beating that had triggered the

entire series of events and on which the entire process had been predicated.

Secondly, Dr Clements covered all her actions, referring both to the clinical

history which included the reported beating of Mark and possible sexual abuse of

Patricia, and also her genital examination of Patricia resulting from the median raphe

she had observed in the course of the examination itself.

Thirdly, Det Macky said that the examination ‘would have been’—odd

phraseology, either it was or it was not. Could he not remember?—requested by him

in conjunction with CYFS, rather than by CYFS itself.

313 PS Macky to Maureen Reti, 11 August 2000. Doc 227. 314 The entire absence of any mention to Patricia by the police officer is difficult to understand. Macky’s also contained several strange inaccuracies. Mark had made no complaint; CYFS had made the complaint. Never was there a suggestion that tubes had been inserted in Mark’s arms. The only alleged bleeding, already denied by Mark to CYFS and the Police before the examination was undertaken, had been from his rectum.

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Fourthly, why would Det Macky require another examination now in addition to

the one conducted on 11 February, which had found no other signs of physical

damage to Mark, if he knew that one had been conducted then?

Family Court Hearing July 2000

Fiona Strange’s affidavit concerning her interview with Mark in February is

dated 12 July 2000.315 It mostly deals with her qualifications and the conduct of the

interview. Paragraph 13 noted, though that Mark had spoken to her of the ‘cleansing’

when ‘his Mum has put a big pipe up his bum’, and that this discussion had taken

place ‘following the interview’, which is why it is not on the original transcript. If the

interview was an evidential one, what does status such a post- interview comment then

have?

Attached to Strange’s affidavit was a copy of the report she had sent originally

to Saranna O’Dowd. This summarised the interview, although the first page twice

states, contradicting the rest of the report, that Mark was hit—and ‘lots of times’—

with ‘broomsticks’. In neither her account of the interview, her summary nor her

recommendations did Ms Strange mention any need for additional medical

examinations, nor the enemas and anal bleeding, yet this is supposed to have been the

time when the stories of such things entered the record. She did recommend ACC-

paid counselling for Mark, referral of the matter to the Police, an investigation of

Patricia’s safety within the home, and that the Paeroa Care and Protection Resource

Panel be advised. Of course, neither the counselling for the children now

recommended by two CYFS interviewers, ever eventuated, while the home situation

would not be investigated until December 2002. Again, measured even by the

recommendations of their own departmental people, the CYFS Paeroa’s dealings on

the ground with the case present as being limited to restrictive, arguably punitive,

actions especially against Maureen and Hugh and with nothing done to contribute

positively to the children’s welfare.

Issues raised in Ms Matich’s 14 July affidavit (Doc 235) have been addressed as

they came up in the narrative recounted above, including how she has mistaken or

misrepresented specific facts in such a way as to make Maureen and Hugh appear to

315 Fiona Strange, affidavit, 12 July 2000. Doc 228.

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have been lying in their affidavits.316 However, it appears to be the case that she was

responding only to the affidavits of Maureen and Hugh of 2 June 2000. This may have

been because in the context of that particular litigation the Crown/CYFS was

supposed to be responding only to the applicants’ filed material, but that included a

raft of affidavits from others such as the two primary school principals.

She also gave an opinion concerning Lance and why he had ended up in prison.

Without knowing any of the subject matter personally and with little indication that

she had assimilated the quantity of CYFS material concerning Lance’s history, and

Maureen’s with it, Ms Matich offered the penetrating insight that it was her opinion

that Lance’s behaviour as a teenager had resulted from his earlier childhood

experiences, including physical abuse by his father. She then turned the entire history

upside down, largely by innuendo:

It is not clear from Departmental records how effective Maureen was at this time as an adequate protector of Lance from his father. I wish to point out that Maureen is currently or has been in a relationship with Hugh Smith who has physically assaulted Mark. In addition to failing to adequately protect Mark from the physical abuse inflicted by Hugh Smith, Maureen actively contributed to the beating at the same time.317 Here, the substantial abuse Maureen suffered at David’s hands as a ‘battered

woman’ is totally ignored, as are the numerous attempts to gain intervention Maureen

made, and her eventual divorce, the implication being that she merely stood passively

to one side as an ‘inadequate protector’. Then Hugh is equated with David, both in

Maureen’s passive acceptance of an abusive partner and in the man’s abuse of the

children. It is explicitly stated that Hugh physically abused Mark and the way it is

written gives the distinct impression that this is an ongoing matter, when other

evidence indicated that Hugh had not otherwise been involved in any physical

disciplining. The calculated disciplining, whether misjudged or not, is directly recast

to be proof of Hugh’s abusive relationship with the family, with Maureen’s active

complicity. To this was added a couple of selective and distorted details from

Maureen’s ‘history of non-protection and child maltreatment since the time that Lance

was young’.318 This misrepresentation was intended to counter Maureen’s explanation

316 Elizabeth Matich, affidavit, 14 July 2000. Doc 235. 317 Elizabeth Matich, affidavit, 14 July 2000. Doc 235. 318 Elizabeth Matich, affidavit, 14 July 2000. Doc 235. Note that at the time the CYFS worker was not concerned enough to take the matter further, indicating either or both that CYFS then was letting the whanau down or that there was no substance to the alleged concern. This is not noted by Ms Matich though.

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for having disciplined Mark to stop him becoming like Lance, by blackening Maureen

as an accomplice, explicitly with Mark and implicitly with Lance, in their boys’

having been abused.

A sort of definition of ‘abuse’ was provided by Ms Matich in defending herself

against the allegations made in Dorothy Thomas’s report of the 10 February meeting.

She did not cite an exact reference in a departmental handbook or guidelines, but

stated:

Regardless of religious belief, the definition of physical abuse promoted by Child, Youth and Family includes any act or acts that result in inflicted injury to a child or young person…. The Department’s definition of physical abuse further states that regardless of motivation, the result to the child or young person is physical abuse.319

This, of course, leaves wide open crucial elements, such as ‘promoted’, which

suggests seeking attitudinal change whereas she was enforcing a drastic response in

what was at most a borderline situation. Also, what is ‘inflicted injury’? Is it simply

the causing of some unhappiness, or a permanent injury, or some point in a continuum

in between, perhaps with context taken into account? As to motivation, one wonders,

‘the result’ of what? Of any physical contact such as a pat or smack, or of something

much more forceful? And so on. In all of this, if that was the extent of CYFS

guidelines/regulations, there remained a huge amount of discretion available to the

individual CYFS worker and thus a broad potential of mistake or abuse of the

Service’s very broad powers. If this was indeed the CYFS guideline then the problem

was rather more systemic than just the individual workers.

Maureen was then accused of not understanding her own son, yet much of what

Ms Matich knew of Mark was from Maureen. Ms Matich stated her own personal

point of view: ‘I do not believe that a physical beating of Mark is an acceptable or the

appropriate manner to assist Mark with his problems’.320 This may well have been the

core of the initial removal issue, that particular personal belief. Absolutely no

cognisance was taken of the immediate context of the theft, the numerous other

ineffective forms of discipline used previously, Mark’s own evidence that this had

never happened to him before, and the two-hour talking to Mark had received in

which he had agreed to receiving a hiding, while the ongoing situation leaving

319 Elizabeth Matich, affidavit, 14 July 2000. Doc 235. 320 Elizabeth Matich, affidavit, 14 July 2000. Doc 235.

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Maureen (and Hugh) at her wits’ end was mentioned only generally and in order to

further condemn Maureen.

Alice Reti’s affidavit directly challenged such allegations by Ms Matich. 321 She

stated that she had known Hugh for five years and often in the company of Maureen

and her children:322

I have seen him orally correcting the children, mainly Mark for his wring behaviour but have never seen Hugh hit Mark. I have seen Hugh give moral support and guidance to Maureen and her 3 children and I know he has made available an educational computer, canoes, bikes, and some excursions. Alice stated that she believed Maureen had actually done a very good job with

the children ‘within her means’. In general, she stated that both children wanted to be

returned home and her belief that Patricia should never have been uplifted against her

wishes for a single day, while the family break up had been ‘without any justification

as any fair and just investigation will show’.323 She also recorded her disbelief at the

CYFS response to the 4 May FGC:324

It staggers me that despite a unanimous family agreement that the children are not in need of care and protection, but [sic] that CYPFS to date is refusing to acknowledge that FGC agreement, and I ask the Court if the FGC is so irrelevant despite being clearly defined in the Act. Commissioner for Children Roger McClay wrote back on 20 July saying that no

response had been received from John Henderson and so he had referred it to the

Chief Executive of CYFS.325 Mr McClay, though, did also point out that the specific

complaints aside his Office refused to endorse any hitting of a child or young person

at all and was actively promoting a change to the Crimes Act 1961 s 59. This response

did not take into account the context or the current law as it then stood and seems to

have assumed that the unique disciplining of Mark was a usual punishment method.

With that attitude so prominently on display, it is on the face of it questionable as to

how much enthusiasm the Commissioner would then be likely to display in following

up the complaints of the against a body that was ostensibly reacting to the same

disciplinary method.

321 Alice Reti, affidavit, 17 July 2000. Doc 240. 322 Alice Reti, affidavit, 17 July 2000. Doc 240. 323 Alice Reti, affidavit, 17 July 2000. Doc 240. 324 Alice Reti, affidavit, 17 July 2000. Doc 240. 325 Roger McClay to Hugh Smith, 20 July 2000. Doc 249.

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Maureen wrote on 24 July to complain again of the medical examinations,

stressing in numbered and bulleted points the issues, especially that there was any

examination of Patricia and that it included a vaginal examination. 326 It had violated

Patricia’s dignity and her trust in every adult involved. She sought explanations for

three specific questions, inter alia: why the examinations were being conducted at that

remote time; who had requested such examinations; and why it had happened,

including ‘professionals’ talking about ‘pipes being shoved up orifices’.

John Henderson, the CYFS Paeroa Site Manager, replied on 31 July to

Maureen’s complaint regarding the examinations by Dr Clements.327 He said he was

‘sorry if you found them upsetting’, which was hardly the point. It had particularly

been the examination of Patricia that had traumatised the girl, rather than being

‘upsetting’ to Maureen—in the response of a senior social worker within a Service

devoted to the care of children there was no recognition of the ‘upset’ caused the girl.

He stated that the purpose was ‘to ensure there is no medical condition requiring

medical treatment’ and referred to the affidavits of both Julia Mechen and Dr

Clements—but their focus was on potential sexual abuse, not medical treatment per se

and the timing, so many months on from the alleged potential harm from Maureen and

Hugh, also contradicts his statement. He was careful to point out that ‘there were no

internal examinations. There [sic] were in fact anal examinations not rectal’—which

once more ignored the vaginal examination of Patricia that was the chief point of the

complaint. This ‘explanation’ explained nothing and ignored the actual matter at

issue, so failed to recognise or rectify it.

John Henderson also replied in detail on 1 August to Maureen’s earlier letters of

complaint, explaining that he had thought the earlier communications related to John

Tamihere had fulfilled that obligation. 328 His letter now, though, simply affirmed the

actions of his staff. Concerning the original visit on 10 February, he stated that

Maureen had been told then that ‘the nature of Mark’s injuries met our definition of

physical abuse’ and that CYFS could not accept that what had happened ‘fell within

the bounds of reasonable discipline’. He was satisfied that all CYFS actions were

within Service principles and their legal services had advised him that ‘they are not

aware of any illegal actions by staff’.

326 Maureen Reti to CYPFS Area Manager, 24 July 2000. Doc 327 John Henderson to Maureen Reti, 31 July 2000. Doc 256. 328 John Henderson to Maureen Reti, 1 August 2000. Doc 257.

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The departmental definitions of physical abuse and reasonable discipline, both

slippery terms, were not set out in this letter, and the fact that the departmental legal

services were not aware of any illegal actions is hardly a guarantee that none had

occurred, while illegality per se says nothing about appropriateness, fairness, or other

qualities such as compassion or sensitivity. Similarly with the comment that the Police

had declined to pursue the issue of Mark’s abduction; to say that something was

technically within CYFS legal powers does not justify it having been committed or

validate the way in which it was done, but merely means that the Police cannot pursue

lawbreakers.

As to the issue of the availability of a Maori social worker, he restated that at

that time there were none and that the one possibility had been part-time, temporary

and tasked on specific other work. The issue of legal representation was that solicitors

in Tauranga handled it, while local law firms were ‘occasionally used to witness legal

documents’.329

Finally, Mr Henderson gave Maureen some advice:

I believe it is in the best interests of Mark and Patricia for you to co-operate and assist this Department to find the best outcome for them. 330

That, of course, assumed that how the Department had been handling matters was the

best way of doing so and that a ‘best outcome’ was a departmental matter in which

Maureen could only be an assistant and then only if she cooperated with them.

Detective Macky’s summary of facts for the court received by Hugh’s lawyer

Lynette O’Boyle—Doc 259—was inaccurate and misleading. Inter alia, he ignored

the context in which the event occurred, especially (a) the fact that there was a lengthy

and escalating history of Mark’s bad behaviour, (b) the lengthy explanation/agreement

session with Mark prior, (c) the amount of money involved and Mark’s failure to

confess, and (d) the evidence from Patricia that Mark was not distressed when she

came home. Nor were the details of the beating given accurately.

Hugh’s affidavit in response to the various CYFS and Police affidavits

addressed some of the issues raised, particularly with the aim of correcting the

329 John Henderson to Maureen Reti, 1 August 2000. Doc 257. 330 John Henderson to Maureen Reti, 1 August 2000. Doc 257.

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misleading impressions created and incorrect or incomplete information given in

them.331

Maureen’s affidavit of 8 August 2000 set out in detail what she had gone

through with her husband and children and the numerous efforts she had made to

better herself and provide for all the various needs and difficulties facing her

children. 332 She, too, challenged key assertions of and factual inaccuracies in the

various CYFS affidavits.

On 4 August, Hugh again wrote to the Commissioner for Children seeking to

gain an opinion from him as to whether CYFS was entitled to ignore the unanimous

decision of an FGC.333 He pointed out once more to Mr McClay the actual

circumstances of the discipline. Mr McClay responded on 10 August noting the

statutory procedure by which CYFS could overturn FGC decisions (although without

venturing an opinion as to whether this procedure had been followed in this case).334

Instead, he substituted a paragraph extolling the Act and how it gave ‘ample

opportunity to explore alternatives and adequate weight given to the needs of the

child—again without application to the Marriott situation.

Cathy Flynn finally met with the two children for whom she was counsel on 9

August 2000.335 This was the first time she had had any contact with the children,

although by now six months had passed since they had been uplifted and she had been

appointed shortly after to represent their interests.

Two days later, Ms Flynn, CYFS solicitor Tony Page and social worker Jill

Dawson met with Maureen and Hugh in Tauranga. Maureen and Hugh left believing

that there remained huge gaps in CYFS understanding of the matter as ‘we are

perceived as hard and hitting parents’ and little of what they had done to correct the

misapprehensions and mistakes had even been considered after all that time.336

On 14 August, Maureen sought assistance for herself and her whanau from Dr

Hester Swart, Consultant Psychiatrist and Hauora Waikato Clinic.337 Dr Swart

assessed Maureen thus:

331 Hugh Smith, affidavit, 2 August 2000. Doc 264. These have been commented on in various places above. 332 Maureen Reti, affidavit, 8 August 2000. Doc 269. 333 Hugh Smith to Commissioner for Children, 4 August 2000. Doc 267. 334 Roger McClay to Hugh Smith, 10 August 2000. Doc 275. 335 Tania Mapu to Brian Pratt, 9 August 2000. Doc 271. 336 Maureen Reti and Hugh Smith, application, 14 August 2000. Doc 283. 337 Dr Hester Swart, interview notes, 14 August 2000. Doc 280.

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Maureen is a well-dressed, articulate Maori lady in her mid 30s. She experiences her life thus far as being extremely difficult in many respects. She is determined to have the Department of Social Welfare pay for their misdeeds. Also determined to rebuild her broken family unit. For this she wants help from an agency who will assist her and her whanau in a holistic fashion. Dr Swart recommended that Maureen accept whatever assistance CYFS did

offer, such as counselling in Thames. She proposed to investigate what assistance

Hauora could offer, such as a fortnight admission at Tamahere for both mother and

children, permitting a comprehensive assessment which could then be built on. She

concluded hopefully:

Although it may seem impossible to achieve, [the] writer wants to stress the fact that a comprehensive management approach can still yield positive results. Continuing a fragmented, patchy approach to treatment and management is not likely to yield any results.338

Such an attitude and approach contrasts with the CYFS approach which had been to

offer a certain amount, on an ad hoc not comprehensive basis, and then fail to deliver

even on most of that. The Service had operated in neither a comprehensive nor a

timely manner over a number of years, let alone within the period since February, yet

a professiona l observer could determine on first encountering the situation that this

was what was needed. Dr Swart then offered Maureen an initial assessment by a

Hauora team on 31 August.339

A judicial conference was set down for 17 August in Tauranga on the custody

issue. Maureen and Hugh applied for a mediation conference under s 171(a-b) to

identify missing evidence and reach an agreed solution to the problem. 340 They

proposed that CYFS solicitor Tony Page and Hugh be approved as Preliminary

Mediators to examine the evidence and draft a plan. In addition to the matters they

had already raised, they pointed out that despite the need for care and protection

having been immediately assumed and consistently maintained by CYFS, in all this

time Maureen and Hugh had never been interviewed or given an opportunity to

respond to the allegations made against them. No investigation had actually ever been

carried out by CYFS, therefore. They also pointed out that they did not want to litigate

the issue at length or delay proceedings, but that they had been misled by CYFS

338 Dr Hester Swart, interview notes, 14 August 2000. Doc 280. 339 Dr Hester Swart to Maureen Reti, 17 August 2000. Doc 287. 340 Maureen Reti and Hugh Smith, application, 14 August 2000. Doc 283.

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statements to them and Tania Mapu and that earlier attempts, such as Hugh’s

application to be recognised as a law advocate, had been declined. In addition, since

they argued that there was never any basis for Patricia to be uplifted, an arrangement

could readily be made whereby she at least should be returned to Maureen.

The nine issues Maureen and Hugh thought should be focused on were set out

clearly in a paper to the court, together with a seven-point initial plan to resolve the

matters.341 The points to be addressed in mediation included not only the

circumstances of the uplifting of the children, but CYFS’s subsequent failure to

address the inadequacies of their being in Tania Mapu’s care, the complete lack of

representation or legal protection for the children for six months, in numerous

situations where their rights and wishes were potentially or actually threatened, until

the eve of this judicial conference, and the need for separate dealing with Patricia

apart from the situation with Mark. The proposed plan included Maureen relocating to

Te Aroha so as to be supported by the local branch of the Maori Women’s Welfare

League who would assist with the implementation of the programme recommended

by the Maori Mental Health assessment team in Hamilton following their impending

25 August assessment of Maureen and the children.

Counsel for CYFS submitted 5 issues, with several sub-issues, for the court to

resolve before an actual hearing took place, mostly relating to technical issues of

procedure and evidence.342

Cathy Flynn, counsel for the children, excused herself and sent a substitute,

while making a submission on the strength of her one contact with the children a week

earlier.343 She sought a clear direction that the children were not to be present at or

involved in the forthcoming defended hearing; this was apparently on the grounds that

‘since the onset of these proceedings both children have been subjected to

psychological and emotional pressure’ and that the events and issues had been

discussed with them by Maureen and Hugh. No details were given to support her

assertions of pressure, and one might wonder if such a state of affairs were so

apparent to her after a single meeting with the children why CYFS had not (a) picked

up on it and (b) done something about it—or why she had herself done nothing to

protect the children who had been her responsibility for half a year. Perhaps, in

341 Maureen Reti and Hugh Smith, ‘Concerns’, 17 August 2000. Doc 289. 342 Memorandum by Counsel for Applicant, 17 August 2000. Doc 290. 343 Memorandum of Counsel for the Children, 17 August 2000. Doc 291.

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defence of CYFS and Maureen together, it had not actually been the case but was her

own construction at this late stage. She objected to Maureen and Hugh having been

given a copy of the video tape of the evidential interview with Mark. She also

objected to a mediation conference on the grounds that Maureen and Hugh ‘have

always presented to the writer a firmly opposed to the understanding or concept of

their children being in need of care and protection’ and that they were confusing that

declaration with the subsequent placement of the children. How she could have

arrived at those conclusions without having dealt at all with any of the whanau until a

week earlier, or taken such a confusion from the detailed argumentation Maureen and

Hugh had submitted over the months is something of a mystery. Her paragaph 11

setting out a number of her ‘concerns’ ignores the context of the events and the failure

of CYFS to provide proper supervision or even supervision of the children on their

own terms (regardless of what would actually have been ‘best’ for the children) e.g.

what options were available regarding Patricia coming to the Police Station (should

not the Police or CYFS have provided child care if this was an issue?), or why

Maureen should have frequently been ‘supervising’ her own children (and stating

such freely in their proposal) when CYFS should have been providing proper

supervision. Ms Flynn’s entire tone is unquestioningly acceptance of the CYFS

position that the children needed care and protection and blaming Maureen and Hugh

for any failure of the subsequent provision of care and supervision for the children,

and even for not having legal representation (which was not even true regarding

Maureen). Little if anything here addresses the actual interests or wishes of the

children for whom one would have thought she would be advocating independent ly of

any other party.

Judge Neal found at that judicial conference that it was mandatory that once

applied for a mediation conference should be allocated and he replaced the hearing the

following week with one, although not directing who should be present. He indicated

that the children should be available, if not necessarily present and regretted that this

mediation proposal should have come so late in the piece.344 Given that Maureen and

Hugh were working through all this as outsiders and novices, was it an option that

CYFS could have proposed earlier if they had not been so fixated on trying to make a

criminal case against Maureen and Hugh?

344 Judge Neal, minute, 17 August 2000. Doc 288.

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At about this time, CYFS social worker Jill Dawson prepared a draft plan to

allow Maureen to resume full care of Patricia.345 It picked up on Maureen and Hugh’s

proposals regarding the involvement of the Te Aroha Maori Women’s Welfare

League and provided for Patricia to go to school there and to return ‘home’ to

Maureen’s care with regular visits to her home and school by CYFS. Maureen’s

responsibilities would be to enrol Patricia there, to encourage Patricia to participate in

one sporting activity, and to participate in the Hauora Waikato assessment (which

Maureen had self-arranged) and be guided by their recommendations. CYFS were to

meet Patricia’s counselling and therapy needs as recommended by Hauora Waikato

and to provide respite care for Patricia once a month. Clearly, the very existence of

this document indicates that the proposals made by Maureen and Hugh were

acceptable to CYFS, at least in regard to Patricia. Thus, it was not CYFS but Maureen

and Hugh who were providing positive options for resolving the situation, whereas

CYFS had changed neither the situation nor any assessment and options for months.

The day before the mediation conference in Tauranga, CYFS worker Louise

Cairney sent a ‘for information’ fax to Maureen informing her that the CYFS

personnel had met with Ms Flynn and had decided amongst themselves not to bring

the children to Tauranga after all, but to leave them at school and bring them by car if

the judge so decided on the day. 346 This was, she said, because Ms Flynn was opposed

to them attending (although Judge Neal had already directed that they should if the

court desired), because their attendance was at the judge’s discretion (although this

decision in practice subverts the judge being able to exercise that discretion), and

because it was not in the children’s interest to wait around all day at the court in

Tauranga (although there was no reason why they had to be there physically, but

merely somewhere close by). Two further points may be noted:

• this fax was sent at 4:52pm on the day before the conference, leaving

Maureen no opportunity to respond to or dispute the decision.

• also, while leaving open the technical possibility of having the children if

it was desired, this decision in fact meant that in practical terms this

would not have happened as it would be far more likely for a judge to

ask to see the children if they were than if they were a minimum of two 345 Care & Protection Plan, n d (apparently c 20 August 2000). Doc 293. It is unclear from this doc what its status is as it is unsigned and undated. It states it was for distribution to Maureen and Ms Flynn. 346 Louise Cairney to Maureen Reti, fax, 22 August 2000. Doc 297.

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hours’ car travel away. It therefore pre-empted any practical possibility

of this taking place.

The mediation conference took place in the district court at Waihi—what

happened to Tauranga?—before Judge Aubin of the Family Court.347 Exercising his

discretion, he decided the children should not be brought to court but also noted

explicitly for the record that they had agreed to nothing. By consent of those

attending—Maureen and Hugh, Ms Flynn, Mr Pope [sic = Page?], social workers

Dawson and Cairney—only two declarations were made:

1. that Mark had behaved in a way that was to his detriment and his parent

was unable to control (s 14(1)(d));

2. that Patricia’s ‘development or mental or emotional wellbeing is being

or is likely to be impaired and that impairment is or is likely to be

serious and avoidable’ (s 14(1)(b)).

These declarations were apparently made as a procedural matter necessary in order for

CYFS to provide counselling or any other non-voluntary services.

The minute says nothing about any of the specific matters Maureen and Hugh

had raised, nor does it say what was impairing Patricia’s wellbeing. In context, given

the present and future tenses, one would normally read this as referring to her present

situation in CYFS care. The mediation conference concluded nothing. The case was

adjourned for the preparation of a plan by the social workers—plan for what was not

specified—and that the court would allocate 30 minutes in one month’s time to

consider it. Judge Aubin indicated that if there was opposition to all or aspects of that

plan then a defended hearing would have to be allocated at an even later date. The

interim custody order was to consider until that plan was finally considered.348 The

declarations also were not in a form that Maureen and Hugh believed had been agreed

by the conference and, as discussed below, they requested a correction of this

wording.

Apparently during discussion in this conference Ms Dawson admitted that

supervised access was never ordered, but nothing seems to have been made of this by

Judge Aubin. 349 He neither explicitly set aside the CYFS-imposed restrictions nor

347 Minute of Judge JR Aubin, 23 August 2000. Doc 300. Note that the minute mistakes every single name of CYFS counsel and personnel—did it get anything else wrong? 348 See also the record of the minute in S Keen, letter, 29 August 2000. Doc 306. 349 Hugh’s notes, 23 August 2000. Doc 301.

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made orders imposing them officially, presumably leaving that whole aspect in some

kind of limbo unless CYFS were prepared to quietly drop the issue themselves.

Maureen’s Attempts to Resolve the Situation Aug-Oct 2000

On the day after that mediation conference, Maureen called at the CYFS Paeroa

office to collect vouchers for an access visit that day for Mark. She was instead

handed a scribbled handwritten note saying:350

No access today with Mark. Alan Scott of Open Home foundation will phone Maureen Reti about setting it up for Monday or Tuesday.

There was apparently no consideration for Maureen in calling ahead nor even, in this

written note at least, provision for explaining why the mother could not have a

planned visit with her son, or for ascertaining whether Maureen was even available on

Monday or Tuesday to make it up. Was Mark even informed or was he just left

thinking his mother had let him down? This is, at a minimum, a less than professional

and sensitive manner of dealing with people’s lives and emotions.

On the same day, however, one positive thing emerged from the mediation

conference. CYFS solicitor Tony Page released to John Henwood in CYFS Paeroa

copies of the videos of Julie Mechen’s interview of Patricia.351 Although Judge Aubin

had made no such order, Mr Page had agreed with Hugh that the tapes should be made

available to Maureen to view, albeit only at the CYFS offices. He did not explain why

the final restriction, perhaps to prevent it being gone through with Patricia present.

Maureen and Hugh had forgotten at the 23 August conference to ask Judge

Aubin for discovery of any videos and notes relating to the combined Police/CYFS

interview of Mark on 10 July. 352 Det Macky had interviewed him after he was brought

from Thames by social worker Jill Dawson and the detective had himself travelled

from Waihi. Because of this effort, and that Det Macky had told Hugh on 11 July that

Mark admitting lying in earlier interviews, Hugh did not accept that there was no

record made of that interview.

350 Note, 24 August 2000. Doc 302. 351 AM Page to John Henwood. 24 August 2000. Doc 305. 352 Application, 25 August 2000. Doc 304.

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The attempt to gain the intervention of the Commissioner for Children came to a

dead end when he replied on 28 August stating that CYFS had told him that John

Henderson had already addressed Maureen and Hugh’s complaints in writing.353 He

accepted the Service’s opinion that those responses did indeed represent a full and

accurate investigation of and reply to their complaints—although see above for

comments on their failure to do anything more than stonewall and frequent failure to

even engage on the issues raised. Apparently neither Mr McClay nor his staff can

have read the complaints together with the responses. However, in his poorly

proofread broadside he did not stop there but continued on to directly accuse Hugh of

lying to him and using him without regard for the children:

It seems that this matter has been thoroughly investigated buy the Department of Child Youth and Family. I am concerned that when we spoke earlier I was led to believe that no correspondence had been received by you for the Child Youth and Family [Department]. It is with some concern that we pursue this matter on your behalf only to be told that Child, Youth and Family have maintained continued correspondence with you. Although this Office is independent from the Child Youth and Family [Department] there still needs to remain some good will between our two respective offices. When this Office approaches the Department of Child Youth and Family we do so in good faith that we are advocating on behalf of children. This office refuses to engage in a dispute that is clearly about adult agendas. Mr McClay not only accepted without question the CYFS version of what had

been going on—in a situation where even the basic facts were largely disputed, let

alone the question of CYFS abuse of process—but failed to make any distinction

between correspondence that was merely written in response to a complaint, doing

little if anything more than acknowledging it, and that which addressed the issues

raised in the complaint. The final sentence is stunningly inappropriate—what was this

about if not the CYFS-enforced breaking up of a family and the unprofessional

placement and treatment of two children? Beyond the earlier misconceived sermon

about violence towards children, Mr McClay had failed to address any of the

problems faced by Mark and Patricia, regardless of the fact that it was adults who

were trying to reunite them with—or separate them from—their mother. The Office of

the Commissioner for Children had failed to make any investigation of the situation

that had been brought to their attention beyond asking the party complained about

353 Roger McClay to Hugh Smith, 28 August 2000. Doc 305.

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whether it had maintained correspondence with the complainants. The strong

impression this letter gives is that despite the brief protestation of independence Mr

McClay was prepared to do nothing more than accept CYFS’ own opinion that

everything was fine for the children and perfect with regard to its own actions and

attitudes. That, of course, is not a fault of CYFS per se, but of the children’s own

statutory watchdog giving the appearance of failing to do his job with any rigour,

regardless of what the children were or were not going through. It also goes to any

question of whether Maureen and Hugh exhausted other avenues of gaining assistance

and support. Hugh’s detailed response is discussed below.

A date had been set for 30 August as the taking of depositions in the criminal

case, and disclosure had been sent to Maureen and Hugh on 1 August. However, the

prosecution had not prepared their file and so the taking of depositions was postponed

by the Waihi Court until 26 September.354

On 31 August 2000, Maureen signed a parental consent form for Hauora

Waikato specialist Maori health service, nominating it as the mental health service

provider for Patricia, Mark and herself.355 It included in paragraph 3 an agreement that

the results of assessments could be provided to ‘other provider agencies’ to gain

‘further support’, ie beyond what flowed from the initial assessment; in paragraph 4

an agreement to supply to the Health Funding Agency such information as required to

obtain its funding support—nb not CYFS—and in paragraph 7 that her consent was

necessary before ‘any release of my child’s personal information, by this agency,

except where there is statutory obligation to provide this’. These provisions would

become important in Maureen’s later dealings with Hauora, CYFS and Ms Flynn as

counsel for the children.

Maureen and Hugh did not agree that the declarations of the mediation

conference as recorded in Judge Aubin’s minute accurately represented what the

conference had agreed unanimously. On 4 September, Maureen wrote to the court

seeking several specific corrections so as to establish clearly for the whanau and the

Hauora team exactly the situation and allow for better planning.356 The corrections

were:

354 Lynette O’Boyle to Gerald McArthur, 4 December 2000. Doc 454. 355 Whanau Consent Form, 31 August 2000. Doc 307. 356 Maureen Reti to Judge Aubin, 4 September 2000. Doc 308.

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• that references to ‘neglect’ in s 14(1)(b) were to be explicitly deleted in

the declaration regarding Patricia so that a new CYFS plan could

proceed;

• that reference to ‘unwilling’ in s 14(1)(d) was to be explicitly deleted in

the declaration regarding Mark so that formulation of a plan including

assistance from Hauora and CYFS could proceed; and

• that Patricia was to be returned to Maureen’s care at the end of the

current school term on 22 September 2000 and that Mark was to be

returned once an acceptable plan had been approved by the court.

Shortly afterwards, Maureen and Hugh sent a lengthy letter to retired Chief

Judge Mick Brown making suggestions based on their experiences for his

consideration for inclusion in his report to the Minister on the operation of CYFS.357

While much is of relevance, one paragraph especially related to the dilemma in which

they had found themselves since February, pointing out the weight given to the initial

intervention being so overwhelming that everything else within the system struggled

to get past it:

Currently, if the Social Worker’s investigation is lacking, the Management will be misled, the Resource Panel will be misled, and Community Service Providers will be misled. Currently the parents or whanau have no opportunity to correct a social worker’s misunderstandings where the Panel remains inaccessible to the public, because of the provision of Section 430 of the Act. A child’s trauma/confusion increases unnecessarily[,] a Manager/Supervisor fails to respond to letters of complaint[,] and no independent local investigation can be mounted quickly. This of course was what had happened to Maureen and her whanau, given Ms

Matich’s initial statements in her Place of Safety affidavit, reinforced and extended in

her Custody affidavit, and the confrontational situation immediately engendered in her

dealing with Maureen and Hugh from the first day—as witnessed by others. It had led

to the impotence of Maureen and Hugh to be heard by anyone including the court

even to the current point nearly 7 months down the track, and it had resulted in Mr

Henderson making at most a cursory response to their complaints and no independent

investigation of Ms Matich’s statements and position, despite the volume of evidence

and opinion telling against most of it.

357 Maureen Reti and Hugh Smith to Juliet Elworthy, 7 September 2000. Doc 311.

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At this time, Hugh also replied to the Commissioner for Children’s recent letter,

detailing why the comments were inaccurate, inappropriate and offensive.358 Inter

alia, he pointed out that relying solely on a self-serving response from the head of the

organisation complained of hardly comprised a meaningful professional investigation,

and that the entire series of events hung off the initial opinions and actions of

Elizabeth Matich and the ensuing refusal by CYFS to allow the mother to be heard on

any aspect of the matter. He explained the series of events that had unfolded, to the

detriment of the children involved (such as the examinations by Dr Clements), since

the Commissioner had failed to make such an investigation. He reiterated the ignored

opposition of the FGC, the CYFS failure to provide for the family as promised in

1999, and CYFS failure to provide any plan at the mediation conference. He also

pointed out other failings detrimental to the children, such as Ms Flynn’s failure to

even contact the children for six months. At this point, too, he raised a matter that had

not previously appeared in the documents and argument, that of the secrecy and

potential conflict of interest of the local CYFS Resource Panel. Maureen at this time

also sent written complaints about the CYFS actions to the Commissioner on a

separate form from the Office.359

On Friday 15 September 2000, Patricia was returned by CYFS to Maureen’s

care and social worker Jill Dawson advised WINZ to reinstate to Maureen’s benefits

her entitlements in regard to Patricia.360 Sometime around this time, Maureen shifted

to Te Aroha.

On 26 September 2000, Dr Wendy Carroll examined Maureen, finding her

physically unwell with a respiratory infection and gastro-enteritis, such that she was

too sick to attend a court hearing that week. Dr Carroll also signed forms for a

sickness benefit to be given on the basis that Maureen was continuing to suffer from

stress and mild depression (from which she was making a slow but steady

recovery).361

A court hearing, also on 26 September, as a second attempt to take depositions

relating to the assault charges, was postponed until 12 October. Lynette O’Boyle,

Hugh and Maureen’s counsel, had negotiated with the Police, but apparently without

358 Hugh Smith to Roger McClay, 8 September 2000. Doc 314. 359 Office of the Commissioner for Children, Complaint Information Form, 12 September 2000. Doc 316. 360 Jill Dawson to WINZ, 18 September 2000. Doc 317. 361 Dr Wendy Carroll, note and forms, 26 September 2000. Doc 320.

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Hugh’s concurrence, a plea bargain for him to a revised charge of Crimes Act Assault,

which would result in a non-custodial sentence.362 Hugh had sought advice from other

lawyers in Auckland and Tauranga, who had also discussed the matter with Ms

O’Boyle, and who apparently agreed with her that this was the appropriate way to

proceed. She had also discussed with the court the question of reassigning different

counsel to Hugh, but Judge Rollo determined this would have to wait until after the 12

October hearing. Perhaps in other communications Ms O’Boyle had made her opinion

clear, but on their own her actions in negotiating a plea bargain seem to indicate either

that she considered the Police case would unquestionably be made out against Hugh,

or that for some reason she was not prepared to litigate the matter through. However,

perhaps the use of a ‘plea bargain’ was predicated on the requirement of the Section

59 defence Maureen and Hugh wished to use that there be an initial acceptance of an

assault having occurred. On receiving her explanation, though, Hugh advised

McArthur that things had not been explained or accepted in the way she set out.363

On the same day, Ms O’Boyle also wrote to Maureen. 364 She advised Maureen

that, in her case, the discussion with the other practitioners had led to a general

conclusion that ‘your part in this is minor and the chances of the Police being able to

secure a conviction against you are very slim’.365 Nevertheless, she advised, the

process was now in train and unfortunately had to be followed to its conclusion.

In response to the mediation conference, on 4 October 2000 CYFS social worker

Jill Dawson filed with the Family Court a report and plans for the two children. 366

Perhaps of no significance, it is noted that the covering letter states that copies have

been forwarded to all parties, but the cc list names only Mr Page, CYFS counsel.

The apparent problem with the report is that it does not give a full account of the

events of months and its condensation of matters leaves a misleading impression on

many aspects. Presumably CYFS would respond that the full story was neither

necessary at this point nor in the context of a situation where negotiations were now

362 Lynette O’Boyle to Hugh Smith, 29 September 2000. Doc 322. 363 Hugh Smith to Gerald McArthur, 8 December 2000. Doc 458. 364 Lynette O’Boyle to Maureen Reti, 29 September 2000. Doc 323. 365 This is interesting given the apparent evidence that Maureen instigated Hugh’s involvement in the discipline, either suggested or agreed that the discipline was the required course of action, held Mark while it was administered, and then struck him herself, together with her previous recorded violence esp as portrayed by CYFS. It is hard to see such a significant distinction between the ‘culpability’ of Hugh and Maureen respectively. Also, do the plea bargain and the ‘minor role’ represent the Police at least getting cold feet about taking this matter through rigorously? 366 Jill Dawson, Care & Protection Plan, 4 October 2000. Doc 328.

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proceeding for the return of the children, rather than a continuing contestation. They

might well also say that any apparent deficiencies were covered by the advice at the

top of p 2 that it ‘should be read in conjunction with previous reports and documents’.

Some specific details identified include:

• P 2 Mark was not removed from his mother’s care by warrant, but the

warrant was sought only after he had been uplifted. No mention is made

of the authority under which Patricia was uplifted.

• P 2 the issue of the FGC again appeared as ‘resulting in a non-

agreement’. Whether CYFS’s argument that this merely meant that the

result was a non-agreement that the children should remain in care and

protection, the continual wording is misleading to the point of deception,

especially when it is never stated that the FGC unanimously agreed on

the immediate return of the children and that CYFS unilaterally simply

set that agreement aside. In none of the CYFS documents other than the

earlier affidavit from Ms Matich was there any statement that the ‘non-

agreement’ was so narrowly defined.

• P 2 while the comments about the dispute over ‘discipline’ are accurate

as far as they go, there is silence over the pursuit of the assault charges,

the context of the discipline, and the subsequent obsession of CYFS and

Police with the enemas and not-so-veiled comments regarding suspicions

of sexual abuse especially by Hugh. There remains, even here where the

dispute is openly acknowledged, any reference for the guidance of the

court as to the standard by which CYFS were judging the discipline as

‘both inappropriate and unacceptable’ eg by reference to statute,

regulation, case law, or departmental guide.

• P 2-3 the diagnoses, ongoing monitoring and SES involvement were all

at Maureen’s initiative, relevant to the issue of her ability to provide

ongoing care.

• P 3 here is written CYFS acknowledgement that Mark’s behaviours ‘fit

within the ADHD diagnosis’ and that Maureen remained concerned for

the implementation of effective behavioural modification programmes to

rescue Mark.

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• P 3 the statement regarding Patricia and her home and school fails to

support CYFS removing Patricia from her home. Indeed the first and last

sentences contradict each other if ‘discipline’ is taken to equate to the

single beating Mark received. All parents discipline their children in

some way, so the court is being invited to read it in that extreme sense.

• P 3 in mentioning the mediation conference there is no

acknowledgement that the ‘consent’ to the declarations was given only

so that service orders could be made to enable CYFS to provide some of

the promised assistance, and that it was not a belated admission of guilt

and parental failure.

• P 3 the initial meeting with Hauora Waikato had already occurred and

Maureen and the children were to enter a residential assessment

programme. The CYFS position was stated to the court as being ‘the

intention of this service to work in a collaborative manner with Hau Ora

Waikato and the whanau to effect positive change for this whanau’.

• P 4 the proposed ongoing orders had been agreed to so that CYFS could

‘ensure that appropriate services be made available to the whanau’. To

this end, s 128 care and protection plans had been formulated ‘to allow

for appropriate services to be delivered to the whanau’.

• P 4 Patricia had already been returned to Maureen and Mark was in a

supposedly shared care arrangement with Tania Mapu, so the s 78

custody order was to be discharged for both children.

• P 4 all of these arrangements were subject to review in six months.

Specifically, the Plan for Patricia provided for those changes in the custody

orders and for Maureen ‘to resume the full care’ of Patricia in ‘an emotionally and

physically safe environment’.367 There were several specific points detailing the

service and assistance CYFS would provide:

• To meet Patricia’s ‘reasonable needs’, specifically the identified

counselling and therapy recommendations arising from Hauora’s

assessment

• To provide monthly respite care for Patricia

367 Jill Dawson, Care & Protection Plan, 4 October 2000. Doc 328.

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• Coordination of monthly meetings with agencies and whanau working

with Patricia and Mark to maintain a coordinated approach

• Monitoring of her situation through regular visits to her home and

school.

There was no restriction on Maureen’s access, apart from any implicit in a s 102

interim custody order, as Patricia was living with her.

Maureen’s responsibilities were those proposed by Maureen and Hugh relating

to the move to Te Aroha, the involvement of the MWWL, the Hauora assessment and

recommendations, and identifying [nb not ‘implementing’!] appropriate and

acceptable [to whom? on what measure?] methods for Patricia’s care and control.

The Plan for Mark had as its goal the return of Mark to Maureen’s care.368 In the

interim, its objectives were to provide for Mark’s remaining with Tania Mapu

Monday-Friday—presumably meaning that he would spend weekends with Maureen,

although the plan nowhere mentions what was supposed to happen in weekends—to

ensure that his home environment in both Thames and Te Aroha was emotionally and

physically safe for him (although there had always been physical risk to him from

Tania’s children that had never been addressed and was still not now), and to have the

Hauora assessment.

Again there were a number of details of what CYFS would provide in relation to

Mark:

• Meeting his ‘reasonable needs’

• ‘considering’ Hauora recommendations and ‘addressing’ specific

counselling and/or therapy—nb no explicit commitment to providing

anything or to accepting the longstanding ADHD diagnosis

• provision of monthly respite care outside the whanau

• monitoring of his situation by regular visits to home and school

• convening of monthly meetings of relevant agencies as for Patricia

• these meetings to determine when Mark was returned to Maureen

• cooperation with Hauora, Mark’s school, Maureen and Tania in the

development of a behavioural management plan

• assisting Maureen and Mark ‘to develop a stronger sense of attachment’,

possibly involving family therapy

368 Jill Dawson, Care & Protection Plan, 4 October 2000. Doc 328.

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There was no mention of any restriction on Maureen’s access to Mark, beyond the

implicit normal constraints of his living in Thames through the week while she was in

Te Aroha.

Maureen’s responsibilities were much the same as for Patricia with several

added: to support Tania as caregiver, to encourage Mark in weekend sports, to support

the behavioural management plan and to ensure Mark attended medical appointments.

Maureen and Hugh gave their written consent to these plans on 6 October, with

a couple of modifications correcting Ms Dawson’s report.369 Specifically, these were

that the reference to Patricia being uplifted a ‘few’ days after Mark be corrected to

‘11’, and that the reference to the ‘assault’ on Mark be amended to ‘discipline’.

These plans were approved by Judge Neal on 9 October 2000, the s 78 custody

order was discharged and replaced with the others under ss 101 and 102.370

On 11 October, Det Macky’s jobsheet for the 10 July interview with Mark was

released to Lynette O’Boyle, Hugh and Maureen’s counsel for the criminal case.371

Although she stated it had not been previously provided, it was, as noted above,

attached to Det Macky’s affidavit of 11 July. What Hugh was actually seeking was

Det Macky’s more detailed handwritten notes of the interview since Macky and others

including Mark had long said that in that interview Mark admitted that he had not told

the truth in the initial CYFS interviews on which the entire series of events and

proceedings had been based.372

At the District Court in Waihi on 12 October Judge Rollo took depositions and

committed Maureen and Hugh for trial. They were granted bail, but within a couple of

days would state that they had not understood the implications of consenting to the

admission of various Crown affidavits as they wished to vigorously contest their

contents and believed that if they were successfully challenged at that point there

would be no case for the Crown to take further.373 Ms O’Boyle immediately sought

the Crown solicitors’ agreement for a mediation style meeting with them and

Detective Macky. 374

Ms O’Boyle’s account of the depositions process and especially what happened

that day in court was set out in her letter to Gerald McArthur, a Tauranga barrister 369 Statements of Consent, 6 October 2000. Doc 330. 370 Family Court minute, 10 October 2000. Doc 335. 371 Lynette O’Boyle to Hugh and Maureen, 11 October 2000. Doc 336. 372 Hugh to Lynette O’Boyle, 11 October 2000. Doc 338. 373 Maureen and Hugh to Lynette O’Boyle, 13 October 2000. Doc 346. 374 Lynette O’Boyle to Ronayne Hollister-Jones Lellman, 13 October 2000. Doc 344.

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subsequently assigned to represent Hugh separately. 375 She addressed particularly

steps she and Judge Rollo took to explain to Maureen and Hugh the way in which

matters worked with depositions compared with a full criminal trial, and the way in

which a defence under Section 59 of the Crimes Act had to be handled, especially the

point that it was predicated upon an initial acceptance of an assault having occurred.

Ms O’Boyle subsequently advised Maureen that proceeding with the criminal

prosecution under the circumstances as they had now developed was in neither the

children’s nor the family’s best interests and that ‘proceeding to trial is detrimental

given the progress [that has] been made to date via the Family Court’. She pointed out

that the Police themselves could withdraw the prosecution, or that CYFS could

intervene to advise the Police of the current position. 376 On 24 October, Maureen

instructed her to write to the CYFS site manager in Paeroa, the Waihi Police, the

Crown and Cathy Flynn repeating that advice.377 Maureen had just come from a

meeting with CYFS social workers and the chairman of the CYFS Paeroa Resource

Panel, but she did not say what the discussion entailed; the letter implies that she had

made these points but they had not been accepted coming from her and now she

believed (or had been told) that they would have more force coming from a lawyer.

Ms O’Boyle advised that she would send such letters on 30 September. Maureen

asked her also to seek discovery of the videos of Patricia’s interviews and to confirm

in writing what Ms O’Boyle had told her verbally on 20 October, that the Police

would not drop the charges because ‘CYFS do not agree with Maureen’s parenting

skills’—although to that point CYFS had never interviewed either Hugh or

Maureen. 378

Hugh and Maureen complained on 24 October to the Manager of the Legal

Services Board, Rotorua, against Cathy Flynn, the counsel for the children. 379 They

alleged both that she had a conflict of interest (as discussed below) and that she was

operating in a manner so detrimental to the children’s best interests the she was

possibly receiving money from the Board under false pretences. They pointed out that

she had taken six months to even make contact with the children, and had still met

with them only once. This had left Mark, who wanted to return home, without a voice. 375 Lynette O’Boyle to Gerald McArthur, 4 December 2000. Doc 454. 376 Lynette O’Boyle to Maureen Reti, 20 October 2000. Doc 359. 377 Maureen Reti to Lynette O’Boyle, 24 October 2000. Doc 362. 378 Maureen Reti to Lynette O’Boyle, 30 October 2000. Doc 373. 379 Hugh Smith and Maureen Reti to Manager, Legal Services Board, Rotorua, 24 October 2000. Doc 362A. The complaint was copied to the Waikato District Law Society.

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They wondered how, as a member of the CYFS Resource Panel dealing with their

case, she could be representing the best interests of both the children and CYFS. They

believed she was behind the refusal of CYFS to advise the Police to withdraw the

charges in light of the Family Court developments, despite the additional trauma a

criminal trial on these matters would cause the children, who were important

witnesses. Further, she had never allowed the children their own voice or informed

them of their rights, despite supposedly being their advocate.

The Waikato District Law Society Complaints Officer replied promptly, setting

out what it could and could not do or become involved with. 380 He commented that

the counsel for the children had a duty to report to the court and that it was up to the

court and the Legal Services Board to deal with if she was not fulfilling her

obligations. He did not grasp the point about the conflict of interest but said only that

he could do nothing about her professional opinion of the ‘the relevance of the report

from CYPS’. He asked for amplification of what they believed the conflict of interest

was and how they had been disadvantaged by it.

On 25 October, Hugh discharged Ms O’Boyle from representing him and

decided to ask the Legal Services Board for separate representation. 381 On the same

day, he and Maureen submitted their own application for a rehearing for the

depositions, to be done with oral testimony from witnesses and not merely by hand-

up. They argued that there had been a subtle miscarriage of justice as Ms O’Boyle did

not explain to them what their consent to the Police evidence actually meant and that

they had not been appropriately represented by her. They also set out their concerns

about Ms Flynn acting as counsel for the children. On 30 October, Ms O’Boyle

withdrew from representing Maureen as well, citing pressure of other court

commitments preventing from giving Maureen’s case due attention. 382 She advised

them both on applying urgently for alternative legal aid assistance.

Maureen jogged the Commissioner for Children as he had not replied. On 26

October he did reply, stating that since CYFS had ‘already discussed the case with

you through various forms of communication’, he saw ‘no new information provided

in this latest complaint from you that has not already been dealt with’.383 He therefore

380 MF Dixon to H Smith, 1 November 2000. Doc 375. 381 Hugh Smith and Maureen Reti, notice of interlocutory application, 125 October 2000. Doc 363. 382 Lynette O’Boyle to Maureen Reti, 30 October 2000. Doc 372. 383 Roger McClay to Maureen Reti, 26 October 2000. Doc 367.

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refused to accept any further correspondence from her in regard to these matters. Mr

McClay seems to have taken the position that he needed only to check if there were

communication between Maureen and CYFS and that if CYFS told him there was

then he need do nothing else. His ‘investigation’ had gone no further than asking the

department complained of and taking their response as concluding the matter, rather

than grappling as an independent authority with the substantive issues Maureen and

Hugh had raised on behalf of the children and their best interests. If it was a case that

he did not have the power or jurisdiction to intervene further, that would have been

one thing, but nothing in any of his letters gave any indication that he was so

constrained.

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Tamahere and Aftermath November-December 2000

The assessment at Tamahere was arranged for Monday 30 October to Friday 10

November 2000.384 When Maureen and the children entered on 30 October, a verbal

arrangement was apparently made, with Maureen’s knowledge, that Hugh and Olga

Campbell of the Te Aroha MWWL could visit on 3 November. This was done at an

official powhiri welcoming them. 385

On 3 November 2000 at 10:22am, CYFS social worker Jill Dawson faxed

‘Mariella’ at Tamahere Hospital confirming that a meeting ‘has been agreed to’ on

Tuesday 7 November at Tamihere ‘to discuss ongoing plans and options for Patricia

Marion and Mark Marriott’.386

It is apparent both that CYFS had been discussing Maureen and the children

with Tamahere and that they were planning to do so more formally and in greater

detail. None of this was apparently done with Maureen’s knowledge or consent. It

raises issues of both patient confidentiality and the pre-emption by CYFS of the

assessment process. By 8 November, Maureen and Hugh were of the firm opinion that

CYFS had contacted Tamahere ‘on numerous occasions … prior to and including

Friday’.387

Ms Dawson then went on to add an explicit statement that Patricia and Mark

were both in CYFS custody and that their placements were therefore within the

jurisdiction of the Service. She continued:

There is an expectation from this Service that both children will remain at Tamahere for the duration of the assessment. There is no agreement for the children to be removed from Tamihere during the assessment period without the prior consent of this service. This statement is inexplicable given the state of matters as they appeared at

10:22am that day. Maureen had taken the initiative with Hauora, seeking help for

herself and the children, all had been set up by her without any CYFS involvement at

all, Hauora had approved the assessment, and the court had confirmed it on 9

October—why should there be any thought that the children would be leaving early?

384 Doc 354. 385 Hugh Smith, affidavit, 7 November 2000. Doc 394, and other docs. 386 Jillian Dawson to Mariella, 3 November 2000. Doc 377. 387 Maureen Reti to CYFS Paeroa, 8 November 2000. Doc 397.

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Patient confidentiality issues aside, it takes on a more sinister aspect given what then

occurred.

One possible answer that there has been no comment on in the documentation

seen for this report is that the fax from Dawson came after a phone call from

Tamahere on that morning. If, as the subsequent Tamahere report stated, Maureen had

been trying since early that morning to leave with the children, had Tamahere then

contacted Dawson asking for clarification of their status and this was her response? If

so, that would support CYFS contentions that there had been no prior interference in

the assessment, but that they were responding to a situation of Maureen’s making or

Tamahere’s provocation etc, depending on which side is followed. Still, at some time

soon after on that day, both Maureen and Patricia saw this fax and it appeared to them

at that time that Dawson had been interfering in the assessment.

It may be noted that it is Hugh’s evidence that outside the Family Court on 20

December 2000, Jill Dawson ‘flatly denied to Hugh that she had ever sent any fax to

Tamahere’. However, Tamahere staff Dr Schwarz and Ani Keepa (at least) both

confirmed later on that day that CYFS had been in touch with them that day including

this fax. Specific evidence would be needed on the sequence of events to clarify this.

To be clear: there had been no new orders or applications issued by the court

since Judge Aubin’s 9 October approval of the plans including the Tamahere whanau

assessment,388 so there were no other sources for the change apart from whatever

communications CYFS had with Tamahere, directing the centre, on the morning of 3

November, or earlier.

At 1pm, Olga Campbell, the Te Aroha MWWL president, called in at Tamahere

to visit Maureen and the children, as had been agreed at their admission, but was

turned away. Olga rang Hugh to tell him this so Hugh then faxed Tamahere asking for

permission to visit on the Sunday, 389 but he too was refused verbally in a phone

conversation with staff member Ani Keepa who told him the terms of Maureen’s stay

had been amended, following a message from CYFS received at 11:20am that day390

and that Maureen could leave today if she wished.391 This refusal was confirmed in

388 See eg Maureen Reti, affidavit, 7 November 2000. Doc 394. Maureen and Hugh checked specifically at the first possible opportunity on Monday morning. 389 Doc 378. 390 Hugh Smith, affidavit, 7 November 2000. Doc 394. 391 Hugh’s phone notes, 3 November 2000. Doc 382.

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writing at 3:15pm as no visitors were permitted to visit Maureen and the children. 392

Since he could not get in to see her, he faxed an additional 7 pages relating to the legal

aid application, asking that Maureen be given it to fill out and return urgently as it had

to be filed with the court on Monday 6 November and this was particularly important

since he could not see her personally.393 At about 6pm Jill Dawson phoned Hugh and

left an answerphone message, but without any explanation as to why she was

calling.394

During the course of the day, several incoming communications from Hugh and

Olga Campbell to Maureen were blocked/not delivered by Tamahere staff, including

those clearly identified as crucial and urgent legal aid documents, and Maureen’s fax

back to them was likewise refused for transmission. 395 At about 4pm, Maureen, who

had been expecting some contact at least on this day, asked Tamahere staff, to be told

that the conditions of her contract had been changed. When she asked for an

explanation, she was told that she was no longer permitted visitors or phone calls and

it is her evidence that she was also told that if she did not like the new conditions she

could go, but the children must stay. She was denied any contact with the outside

world, including access to a lawyer.

During the course of the increasingly tense discussion of the new situation,

Maureen was told by Dr Schwarz, the consulting psychiatrist who had worked for her

admission and who was in charge of the assessment team, that ‘she [Dr Schwarz] had

known nothing in advance of the changing of the rules or the CYPFS contact with

Tamahere’.396

The Tamahere staff called the Police at 7:30pm to remove Maureen from the

hospital. Constable Skudder reported that they were told by staff that ‘a female

downstairs was wanting to leave but her children were not allowed to leave with her

as there was a court order in place concerning her children.’397 The staff told them that

the court order provided for only the two children to be there for observation and

assessment and that ‘the mother was allowed to visit however the children were not to

leave the premises with her’. Maureen showed the Police documentation indicating

‘the children’ being at Tamahere, but the Police seem to have countered simply with 392 Cindy Hewitt to Hugh Smith, 3 November 2000. Doc 379. 393 Doc 380. 394 Maureen Reti to CYFS Paeroa, 8 November 2000. Doc 397. 395 Some gathered at Doc 383. 396 Maureen Reti, affidavit, 7 November 2000. Doc 394. 397 Constable V Skudder, Police jobsheet, 3 November 2000. Doc 384.

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the official ruling that the children could not leave the place. There seems to have

been no recorded discussion of why Maureen should be leaving the place herself.

Constable Skudder’s report indicates no comprehension that the documentation

Maureen showed him/her also revealed that Maureen was supposed to be there for the

assessment period and that she had already been there with them for days—she was

not just a deranged ‘visitor’ trying to abduct her children from a place of safety etc.

‘To her credit she left without making a scene’. Maureen’s comment was:

The Police had been called to remove me from Tamahere without any legal grounds or cause or justification whatsoever to my knowledge. I did repeatedly but calmly refuse to leave without taking my children with me.398 At 7:30pm, when Hugh called Tamahere, Ani Keepa told Hugh that the CYFS

instruction was that the children were not to be removed, but that Tamahere had called

the Police to remove Maureen. She also told him that due to the revised contract,

Hugh could not visit either Maureen or the children, he was not permitted on the

property, and he was not permitted to speak to her on the phone.399 At 7:50pm,

Tamahere staff member Ani Keepa called Hugh to tell him that the Police were

removing Maureen from Tamahere. Initially she refused to let him speak to either

Maureen or the Police—which makes one wonder why she bothered to call him at

all—but finally allowed him to speak to Constable Higgins who asked if he could

collect her.400 The Police then took Maureen to the Hamilton Police station, called

Hugh, and from there Hugh picked her up at 10:30pm and took her home to Te Aroha.

Maureen was taken from Tamahere without being able to say goodbye to the

children or explain to them what was happening—if she even understood any reasons

herself.

At 9:18am on Saturday 4 November, Maureen sent a fax to the management of

Tamahere and the Board of Trustees of Hauora Waikato.401 She reminded them that

she had come to them voluntarily for an assessment of her family unit in relation to

both Mark’s existing ADHD and her own ability to manage the family, and that this

assessment had been supported and approved by all parties in the Family Court. She

complained that Tamahere had ‘continually and unprofessionally changed the

398 Maureen Reti, affidavit, 7 November 2000. Doc 394. 399 Hugh Smith, affidavit, 7 November 2000. Doc 394. 400 Hugh’s phone notes, 3 November 2000. Doc 382. 401 Maureen Reti, Fax, 4 November 2000. Doc 386.

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kaupapa during my stay’, failing to explain or justify daily changes, causing stress to

herself and the children. They had withheld information from her until after the close

of normal business hours on the Friday preventing her from phone access and the

right to consult a lawyer. She spelled out that they were to consider themselves the

temporary guardians of the children, and that they were not to surrender that role to

any other person or organisation without her written permission. She informed

them—although they obviously already knew—that Jill Dawson was the children’s

social worker and Cathy Flynn the counsel for Mark, another indication that Maureen

and Hugh had no idea what was going on.

A second fax from Maureen, sent at 10:30am on the same day to the General

Manager of Operations at Tamahere, asking specific questions relating to the

unexplained refusal to permit visitors after the initial agreement for them and the

obstruction of her access to communications, as well as the arrangements now for her

to have phone access to the children. 402 She also pointed out that all the

documentation provided to Tamahere, at their request, was private and confidential

and they were to destroy all of it as they had not used it for the intended purpose.

Neither of these faxes to Tamahere were ever acknowledged or answered.

Further, also on 4 November, Maureen faxed a plea for help to the Tainui

Branch of MWWL, exp laining what had happened, especially since she regarded her

children as having been ‘hijacked’ from her and by a Maori organisation she had

trusted.403 She and Hugh had by now apparently formed a view as to what had

happened and why. She noted that Ms O’Boyle had withdrawn from representing her

on the day she entered Tamahere, with only a fortnight until the trial call-over on 14

November, so that she now had no legal representative. They had concluded that

CYFS had intended deliberately, with Tamahere’s complicity, to put such pressure on

her on Friday afternoon that she would ‘crack’, thereby giving them lawful excuse

initially separate her from her children during the criminal trial and then to take the

children permanently. Presumably from their contacts with others upset by CYFS they

claimed there was a pattern with CYFS field staff being unavailable, as Jill Dawson

had been throughout this emergency, such events happening on Friday nights when no

legal assistance was available ‘just as I was denied’, and the Police being misled so as

to make them enforce the scheme. She ended:

402 Maureen Reti to General Manager Tamahere, 4 November 2000. Doc 387. 403 Maureen Reti to Tainui Branch, MWWL, 4 November 2000. Doc 387A.

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I have tried to contact the Social Worker today through various means including the 24 hour number, but to no avail. The excuses offered are not consistent and I keep getting blocked. Maureen had been persuaded to leave Tamahere because of her knowledge that

the children were safe and secure in professional care—she was deceived in this, too.

After all the forceful insistence that Patricia and Mark must remain at Tamahere—

apparently without Maureen—CYFS themselves came to Tamahere in the persons of

social workers Jill Dawson and Angela Roberts and uplifted the two children on the

following day, Saturday 4 November. This also went against the explicit wishes of

their mother, Maureen, as faxed to Tamahere at 9:18am that morning. It had actually

been arranged at about 4pm the previous day (i.e. only a few hours after Dawson’s fax

instructing that the children were not to leave Tamahere) when CYFS rang Tania to

arrange the return of the children there—but of course this had been kept secret from

Maureen. 404 Dawson and Roberts then took them back to Tania Mapu’s house in

Thames, the place from which all the previous 8 months’ efforts had been made to

remove them. It is not apparent why both children were returned there (since Patricia

had already been in Maureen’s care for 6 weeks), but in any case the social workers

did not apparently entrust them directly into Tania Mapu’s care, nor into that of any

other responsible adult (did they even advise Tania that they were coming beyond the

general advice of the previous afternoon?). Instead they had merely dropped them off

at the address were there were a number of children, the oldest of whom was only 14.

To add to the weekend’s trauma, on Saturday night the hot chimney flue in

Maureen’s Te Aroha house set alight birds’ nests in the roof and the house was burned

so badly it was uninhabitable until Christmas time.

Maureen did not find out where the children were until on 6pm on Saturday

when she was able to get a message a social worker had left on her Te Aroha

answerphone at around 4:20pm and setting down a meeting with CYFS on Monday

6th. When she and Hugh got back to Paeroa at about 5am on Sunday they found a

message a distressed Patricia had left on Hugh’s answerphone at 6pm on Saturday. 405

They spent Sunday afternoon and evening faxing Tamahere as to why there had been

no response to their faxes of Saturday, faxing CYFS as to why there had been no

consultation and why the children were left unattended in Thames, to salvage what

404 Maureen Reti to CYFS Paeroa, 8 November 2000. Doc 397. 405 Hugh Smith to Albie Orme, fax, 11:20am Sunday 5 November 2000. Doc 388.

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they could from Te Aroha, then to visit the children in Thames. They could not meet

with CYFS on Monday since they had to be in Tauranga dealing with court matters,

especially applying for legal aid prior to the impending tria l call-over.

On Monday afternoon, Maureen went to the Waihi Police station and asked to

make a formal complaint that CYFS had neglected and abandoned her children. 406

Youth Aid Constable Buchanan agreed to write to CYFS Paeroa about it, but refused

to take any further action under s 453 of the CYPF Act. He did not explain in that

letter why he would take no further action.

It would be claimed by the Tamahere staff and implicitly by Flynn and Dawson,

that the children were unaffected by all of this, that they were not concerned about the

forcible removal of their mother and their unceremonious return to Tania Mapu’s.

Patricia herself gave the lie to that erroneous—and, it must be said, pretty unlikely—

contention when later interviewed by independent psychologist Hans Laven. He

reported that the Tamahere incident had given rise to ‘several traumatic memories for

her’, that Patricia sensed there was something wrong (not that she was told anything at

the time), and ‘she then saw police go into the house where their mother was and did

not see her again’.407 Is it at all conceivable that this could have been received with

complete equanimity by two young children, especially ones as self-aware for various

reasons as these two? They were then returned to Thames by CYFS ‘again without

explanation’ and left with no adult present in the house. Patricia told Laven:

She said that while there she was ‘still terrified from the Tamahere experience’ and she could not fall asleep until 4:00am. Quite apart from all this direct trauma, Patricia also told Laven that while at

Tamahere (or possibly Tania Mapu’s after the return, Laven’s report is not clear) she

saw a letter on file that stated she was under the custody of CYFS and not her

mother—presumably the fax from Dawson to Tamahere cited above and thus the

responsibility of Tamahere. Laven’s own professional comment on this was:408

In my opinion an 11-year old child is likely to be highly emotionally threatened to read such information, especially in the absence of explanatory or reassuring support. In recounting this two years later Patricia’s tone became notably flatter, quieter and more monotonous, and she appeared sad and upset.

406 Constable KJ Buchanan to John Henwood, 6 November 2000. Doc 391. 407 Hans Laven, psychologist’s report, 3 December 2002. Doc 995. 408 Hans Laven, psychologist’s report, 3 December 2002. Doc 995.

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This seems prima facie much more likely than the reassurances given by Tamahere

and the others at the time about the children’s having taken it all in their stride,

especially since it was still having such an obvious effect on Patricia two years later.

What is not clear in all of this is when and why Tamahere decided to alter

Maureen’s contract. Why did they resile from the full assessment including her as

well when it had been clear from the start that it was not just the children being

assessed but the whole whanau? 409 Why did the whanau assessment change to

Maureen being welcome to stay if she wished, and then within a few hours to them

calling the Police to evict her? Why was this done in such a way as to further

traumatise the children by them not being able to say goodbye or have an

explanation? Why did CYFS remove the children from Tamahere the next day, having

on Friday 3rd been very clear that they were not to leave the place and with a meeting

organised?

On Monday 6 November, Jill Dawson, with masterly and disingenuous

understatement wrote to an undisclosed group stating:410

Because there is a difficulty in fulfilling the s128 plans attached to the custody orders for Mark and Patricia Marion Marriott it would now be helpful to korero with whanau.

She invited the letter’s recipients to a hui at CYFS Paeroa at 11am on Tuesday 11

November where the whanau could discuss ‘how we can best achieve a positive

outcome for the tamariki’. Note: (a) the whanau had already done this unanimously at

the FGC seven months earlier, saying the children should be returned, and (b) the

‘we’ is unclear, CYFS or the CYFS + whanau? An obvious problem with the letter

was that the day and date did not match, the next Tuesday being 14 November and the

11th being the coming Saturday. Hugh replied when they received the letter (not fax)

on the 9th, saying that the dates were wrong, but that in any case on Tuesday 11th he

and Maureen had to be in Tauranga for the assault hearing at the District Court.411 He

also asked for a written agenda for the hui so that those attending knew what was

going on.

On Tuesday 7 November, Maureen and Hugh filed an ex parte application with

the Family Court for an urgent judicial review of the plan approved by the Family 409 See the original interview notes and letter from Hauora/Tamahere. 410 Jill Dawson to undisclosed, 6 November 2000. Doc 390. 411 Hugh Smith to Jill Dawson, 9 November 2000. Doc 399.

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Court on 9 October and an urgent evaluation of the current state of the children. 412

They alleged that CYFS had unlawfully intervened on Friday 3rd in the Tamahere

assessment, damaging the children, hijacking the assessment, and thereby

contravening natural justice by subverting the evaluation of Maureen’s parenting

skills. They pointed out the eviction from Tamahere of Maureen, the withholding of

Patricia from Maureen against the will of both of them, and the abandonment of the

children in Thames by CYFS, none of which actions were in the best interests of the

children. On 13 November Judge Neal ordered that this application be referred to Ms

Flynn for a report including discussion as to jurisdiction. 413

Maureen had tried a number of times to reach Jill Dawson about the situation,

using a phone number 0508 FAMILY that Dawson had told Maureen would reach her

in cases of emergency. She did speak to Angela Roberts, who would shortly

afterwards come with Dawson to remove the children from Tamahere. Maureen left

messages with Roberts for Dawson to contact her urgently, but still by 8 November, 5

days after the Tamahere events, Dawson had failed to make any contact with

Maureen. 414 Regardless of where Dawson was on Saturday morning, she was in a car

for several hours with Roberts in the middle of the day driving from Paeroa to

Hamilton, to Thames and back to Paeroa, and it is inconceivable that Roberts failed to

mention Maureen’s calls and messages. There are only two alternatives: that Roberts

was too stupid or incompetent to mention them to Dawson, or that Dawson had

simply decided to treat Maureen with contempt and refuse to make any contact with

her either of her own initiative (prior to Saturday morning) or in response to

Maureen’s desperate calls. The only attempts to inform either Maureen or Hugh of the

situation, or to discuss what was an intensely dramatic event, were the answerphone

message to Hugh on Friday that advised nothing, and the answerphone message to

Maureen at 4pm on Saturday telling her where the children, who she thought were

still in safe hands at Tamahere, had now been dumped.

As Maureen wrote to Jill Dawson:415

I and my children have been irreparably deceived, and my efforts to contact you have continually been blocked since I entered Tamahere….

412 Maureen Reti and Hugh Smith, application, 7 November 2000. Doc 394. 413 Judge Neal, minute, 14 November 2000. Doc 394A. 414 Maureen Reti to CYFS Paeroa, 8 November 2000. Doc 397. 415 Maureen Reti to CYFS Paeroa, 8 November 2000. Doc 397. Emphasis in original.

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I am still waiting as at 3:15pm Wednesday 8th November to hear from you officially about what you and your department have done to my children and how that is in the best interests of my children. Maureen wrote a 6-page letter to Minister of Social Services Steve Maharey on

10 November setting out in detail.416 She made the depth of her feelings known but

explained in restrained fashion the now familiar story of half-cocked CYFS action and

disregard for the children at length including the latest Tamahere business and the

children’s subsequent abandonment in Thames, and the various abortive attempts

already made to gain a proper investigation and for herself and the children to even be

heard.

The assault charges were brought before the Tauranga District Court on 14

November. Legal aid funded representation from Tauranga had now been provided

separately for Maureen (Mark Beech, partner at Sharp Tudhope) and Hugh (Gerald

McArthur, barrister).

Also on 14 November, Maureen advised Ms Dawson that she had Patricia with

her at present, supporting her as she had her first period. She intended to keep her

with her until that was completed and then return her to Thames, and asked Ms

Dawson to advise Te Aroha School. 417

Ms Dawson asked by fax on Wednesday 15 November if Maureen and Hugh

could meet with herself and Cathy Flynn in Thames on Friday morning 17 November,

as: ‘We need to discuss where to from here for Patricia Marion & Mark.’418 That

afternoon she phoned to follow-up to gain confirmation and appeared unaware of the

situation with the house in Te Aroha, despite the various communications advising

CYFS of this. This suggests that Ms Dawson had simply ignored the fax and phone

messages from Maureen. Hugh told her on the phone that they were full committed

over the next couple of days, and Ms Dawson was for the following week. Maureen

felt they had nothing more to say to CYFS until the court issues were resolved, while

they both wondered at the timing of this offer given that Ms Flynn had only 7 days to

report to the court—following Judge Neal’s 13 November minute noted above—and

the Resource Panel met on Friday afternoons.419 Maureen replied with a strongly

worded letter to Ms Dawson explaining why there was nothing to be said to her or Ms

416 Maureen Reti to Steve Maharey, 10 November 2000. Doc 400. 417 Maureen Reti to Jill Dawson, 14 November 2000. Doc 407. 418 Jill Dawson to Maureen Reti, 15 November 2000. Doc 409. 419 Hugh’s phone notes, 15 November 2000. Doc 409.

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Flynn, given that they had either or both instigated problems or failed to act in the

children’s best interests over the last few weeks.420 She reminded Dawson that:

• she had not had the decency to reply to any of Maureen’s messages,

although Maureen knew Dawson and Roberts were meeting at 11am on 4

November to discuss the children’s case;

• that Dawson had held a meeting with Tania and Parawai School regarding

Marks’ behaviour, but had excluded Maureen;

• despite knowing that Maureen and Hugh had to go to Tauranga for the

District Court hearing, Dawson had nevertheless gone ahead with her self-

organised meeting and got Tania and her husband to come down from

Thames to meet with her on 14 November, once more discussing the

children with Maureen explicitly excluded;

• that Dawson and Flynn had done nothing (or worse) to serve the children’s

interests in getting the Tamahere assessment;

• that this request for a meeting at short notice had come only on the day when

Judge Neal’s direction for Ms Flynn’s report had arrived.

Ms Dawson replied that the children were still in CYFS custody and ‘We have

the legal right to place them.’421 This may have been technically true, but it says

nothing about the methods by which that determination might or should take place.

She said simply that the Mapus were ‘approved caregivers for the Department’,

ignoring all the distress Patricia had sown at being replaced there and Maureen’s

complaints about the children being merely dropped off at such a traumatic time with

no adult supervision, certainly not into the care of the Mapus. She said how

‘extremely unfortunate’ it was that aspects of the 9 October plan had not been kept,

implying that it was Maureen and Hugh who were at fault, ignoring the actual

sequence of events at Tamahere and failing to address the issue of why Maureen was

being excluded and the children were also then removed.

Further, Dawson stated that ‘access for Mark has reverted to the pre-declaration

stage and therefore is to be supervised’. Of course, the access did not simply ‘revert’

by itself; it was CYFS’ own decision i.e. Dawson’s in practice (although she did not

admit this) and she overlooked the point already admitted in court that the supervised

access had never been more than a CYFS imposition, never having been ordered by 420 Maureen Reti to Jill Dawson, 15 November 2000. Doc 410. 421 Jill Dawson to Maureen Reti, 17 November 2000. Doc 415.

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the court. There were five reasons that she gave for the placement back with Mapus,

and exclusion of Maureen:

• Maureen had returned to the home of Hugh Smith whereas the plan had

agreed for them to live apart. There was no indication of how CYFS might

have known what Maureen’s living arrangements at 5th Dimension were,

and the plan called for Maureen to move to Te Aroha, and said nothing

about Maureen’s relationship with Hugh or even whether he could have

moved there with her.

• The current criminal charges in respect of the alleged assault on Mark.

• Mark’s deteriorating behaviour with Tania and at school since he had spent

a holiday with Maureen—which was hardly Maureen’s fault and might more

logically be thought to result from his unhappiness at being at Tania’s and

his desire to be home with his mother.

• Maureen had self- terminated the Tamahere assessment and thus herself

thwarted the development of any further plan—which is a pretty imaginative

revision of the series of events that took place at Tamahere that week.

• CYFS had to ensure that Mark was safe—although his life had been made

miserable by unaddressed bullying from Tania’s children for months while

in CYFS care and protection.

Dawson instructed that Mark was not to be removed from Mapus’ care,

supervised access was offered for Sunday 19 November, and Patricia was to be

returned to Thames—although at this point she gave precisely no reasons why this

had to be so, the above reasons relating to Mark rather than Patricia who had already

been back with Maureen in the ‘pre-declaration stage’.

This fax was sent after a teleconference between Maureen, Dawson and Cathy

Flynn on 17 November and was essentially Dawson writing down the points she had

made over the phone.422 During that teleconference Maureen had rejected the offer of

supervised access to Mark as insulting to her and insensitive to the boy on the day of

his birthday. She had urged that either Dawson or Flynn go and see Mark personally

and explain in person why she was not allowed to take him out for the weekend or see

him on his birthday, but this was not done beyond a phone call from Dawson to Tania

to get her to it instead:

422 Maureen Reti to Jill Dawson, 20 November 2000. Doc 418.

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Jill you gave me your promise and reassured me that you will go and see Mark on Friday 17th Nov, for his understanding. This [personal visit] I assure you did not take place, but the phone [call] did (to Tania) against what was best for Mark. This conduct is not professional and is definitely not in the best interest of my children. 423

Once more she asked Dawson to contact Te Aroha School to organise Patricia’s

transfer back to Thames.

Maureen informed Dawson that she had returned Patricia to Tania on Sunday 19

November and that she had no control over nature to tell Dawson in advance when the

girl’s cycle would have been completed.424 She stated that Patricia had refused to see

a doctor about it as a result of her experience with Dr Clements, and that Patricia was

‘very distressed and unhappy’ to be returned there.

A letter was composed from Patricia to Ms Flynn on 16 November, asking her

detailed questions about why what had gone on over the previous nine months had

happened to her, seeking an explanation of why she was once more separated from

her mother, and asking for a response by 22 November.425 Regardless of the various

redactive hands in this, still the last paragraph expresses clearly a small part of how

she must have been feeling:

I would like truthful and honest answers for a proper understanding because I’m fed up being pushed around from school to school and house to house by adults who I don’t know and who don’t care. I hope this doesn’t happen to any more kids so please make your answers good and real. Ms Flynn did not reply to it promptly—apparently she never did at all—but

forwarded it to Judge Neal as an example of ‘the excessive and inappropriate

involvement of these children by their mother in the Court proceedings and legal

issues’.426 She gave it no recognition as an expression of Patricia’s feelings and

concerns, but merely stated rather disingenuously that she had not spoken with

Patricia since Tamahere yet was ‘happy to do so to answer her questions’. Of course,

she did not mention it but in 9 months she had spoken to Patricia (and Mark) only

once; this hardly demonstrates either a willingness to do as she had just said, or a real

concern about finding out the children’s state and wishes. That is not an issue

regarding CYFS per se, but one might have thought that as the care and protection 423 Maureen Reti to Jill Dawson, 20 November 2000. Doc 418. 424 Maureen Reti to Jill Dawson, 20 November 2000. Doc 418. 425 Patricia Marriott to Cathy Flynn, 16 November 2000. Doc 412. 426 Cathy Flynn to Registrar, Family Court, 20 November 2000. Doc 420.

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providers they should have been promoting closer communication between counsel

and children.

Patricia discussed this letter and her (non-) relationship with Flynn with

psychologist Laven two years later. Flynn’s dismissive treatment of her and her

genuine concerns clearly still rankled greatly even then. Laven reported:

Patricia expressed resentment that Counsel for Child only saw her on a small number of occasions and was not helpful to her. She said she had written a letter to Counsel for Child with a set of questions but she received no letter in reply. Counsel for Child visited her and spoke to some of Patricia’s questions [albeit months later] but Patricia did not feel she had her questions answered, and she had a sense that Counsel for Child was hiding something. In recounting this Patricia stared in one direction and showed an angry expression on her face. On 20 November, Maureen faxed the CYFS CEO asking why the Paeroa site

manager had not supplied the names of the Paeroa Resource Panel after a month over

a month after being requested by his own Head Office and asking for reply by the

following day. 427 She pointed out that he had not only ignored her requests in the past

but also those of the Commissioner for Children.

Cathy Flynn’s Report 20 November 2000

Ms Flynn produced her report to Judge Neal on 20 November.428 She discussed

the jurisdiction regarding reviews of plans. She then went on to discuss the Tamahere

events and their aftermath. It should be noted that since she played no part in any of

the events other than one teleconference and had not spoken to the children or

Maureen and Hugh she relied entirely on CYFS and Tamahere information for this

report—not wrong in itself, if perhaps unduly casual, but this limitation should have

been explained to the court to enable it to have a clear understanding.

She correctly stated that both children were still technically in CYFS custody

(but omitted to point out that they were under different provisions) and that the

Tamahere assessment was two-fold, regarding the children, and regarding Maureen’s

427 Maureen Reti to CEO CYFS, 20 November 2000. Doc 419. 428 Cathy Flynn to Registrar, Family Court, 20 November 2000. Doc 420.

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parenting of them. But she said that a particular aim was the review of Mark’s ADHD

diagnosis; this specific aim was not, I think, made explicit in any document viewed.

Ms Flynn reported that the Hauora manager (unnamed) to whom she had spoken

told her:

• The children were not distressed or upset, either when told Maureen had

left or when the CYFS workers took them back to Thames

• The removal of the children on Saturday was at Hauora’s request, not

CYFS.

• Hauora sought the children’s removal because it recognised the entire

assessment had been at Maureen’s initiative, not CYFS.

She explained—and implicitly tried to excuse—the absence of Tania Mapu and

her husband when the children were returned as because they were stranded with a

flat battery up the coast at Te Puru, and that they had themselves left their own

children in the care of their 14-year old son ‘who Tania Mapu advises is responsible

and well able to care for the children’. Tania’s reported opinion was tha t the children

were not ‘unduly distressed or upset’ when they arrived home several hours later.

Flynn agreed it was ‘unfortunate’ that the caregivers were absent, but ‘they were

returned to a familiar environment where the caregivers were trying to get home as

soon as possible’. There is no mention that Dawson knew what had befallen Tania

when she dropped the children off, or why Dawson thought leaving them in that

situation for an indeterminate time was appropriate and professional.

It may be noted that this casual attitude to the care of the children is in stark

contrast to that of Ms Matich who earlier used the fact that Tania’s much older

daughter Camellia and her partner had been caring for Mark on his own as a count

against Maureen as showing how casual and irresponsible she was as a mother. Yet

here it is apparently fine in the eyes of both counsel for the children and the CYFS

workers for Mark and Patricia and half a dozen other children to be left for an

indeterminate period in the care of a single 14-year old. A double standard seems to

apply against Maureen. Also, the ‘not unduly distressed or upset’ begs the question of

whether they were indeed distressed but only to a permissible level. Certainly from

the moment Maureen and Hugh reported Patricia’s phone message from 6pm on that

Saturday night they were reporting her as having been distressed and wanting to leave

Tania’s to return home.

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Ms Flynn repeated the story of the ‘three angry and threatening men’ sent to

Tamahere on 15 November by Maureen. This was adduced as yet another example of

‘the amount of harassment, manipulation and threatening behaviour’ that Maureen

and Hugh had allegedly inflicted upon Tania over the months. None of this was

detailed but mentioned as having been reported to her in a phone conversation with

Tania on 17 November. One wonders how many other times counsel for the children

had been in contact with Tania over the previous 9 months. She continued in the next

sentence to implicitly link such behaviour with the deterioration of the children’s

behaviour since they had spent the last term holidays with Maureen (and of course

Patricia had attended Te Aroha School, although she did not mention that). Patricia

was described by Tania as having ‘closed up completely’, and this deterioration since

having increased contact with Maureen ‘concerned’ Flynn. Such behaviour is hardly a

mark against Maureen, though, but rather one of the unhappiness the children felt at

being once more stuck back with Tania’s horde instead of being with Maureen. Surely

had they been happy at Tania’s and miserable at Maureen’s the attitude would have

been reversed? The only possible justification for blaming this on Maureen is to

assume that she had poisoned them against Tania, but given the many weeks involved

any such attitude seems unlikely to have lasted that long. Also, this story Tania was

now reportedly peddling was at complete variance to her agreement back in May to

the FGC’s unanimous decision to return the children home and the affidavits she

signed over the following months, including statements that CYFS misrepresented

what she had said. Were there other reasons for Tania to be saying such things, if

indeed they were said like that?

She said she was ‘very concerned about the emotional and psychological well-

being of both these children’. Her concerns were based on ‘a violent assault upon

Mark’ by Maureen and Hugh (which rather misrepresents it), their having been

‘inappropriately involved in these proceedings’ by Maureen and Hugh, and Maureen

having ‘often undermined’ attempts to ‘responsibly address the situation’. Partially

setting the first aside, none of these three points gives reason to be concerned for the

children’s emotional and psychological well-being. She later reported Hauora as

having said the children were subdued and frightened in Maureen’s presence, which

was not quite what was said. She admitted that Patricia’s school work was fine and

not deteriorating but then said she was concerned about ‘the long-term effects of the

emotional and psychological pressure on her’—what long-term effects? What

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pressure, specifically? Manifested how? If it were related to the abduction then that

would be relieved instantly by return to Maureen. This letter is full of innuendo and

non sequiturs.

Flynn then supported a new CYFS application for a restraining order against

Maureen and Hugh, especially ‘to protect and safeguard Mark’s placement with his

Aunt’—once again Patricia had dropped off the radar. She repeated her statement that

Maureen and Hugh had ‘declined to attend the two meetings’ the previous week. This

is simply mischievous as she and CYFS knew perfectly well that they had to be in

court in Tauranga at the time Dawson unilaterally called the first meeting while she

herself then describes the teleconference that took place in lieu of the second meeting.

Likewise with the offer of supervised access for 2 hours on Mark’s birthday on

Sunday 19 November which Maureen ‘declined’. There is no recognition that there

had never been any justification or court order for such supervision, Mark was under

no increased threat as a result of the Tamahere breakdown, and the birthday access

was no different from the abortive arrangements CYFS had failed to implement

previously. Why should Maureen accept a restriction for which there was little or no

basis in the first place?429

It is unclear why Ms Flynn’s report then took 13 months for Maureen and Hugh

to discover. Judge Neal’s minute did not say it was to be privileged to him alone and

the order for it to be written was sent to all parties. She did not in the report itself

request for it to be withheld from them for any reason. Surely normal practice would

be for such a report to be circulated to parties by the court upon filing? Maureen and

Hugh wrote on 6 December 2000 asking specifically for a copy. 430

It should also be noted that Maureen and Hugh in various places appear to be

under the impression that the report was to have been solely on jurisdiction. This is

not the case. Judge Neal’s minute orders her to report within 7 days on their

application for a judicial review, and then adds ‘including as to jurisdiction’. The

substance of the report was to be on two separate matters, the application and

jurisdiction, presumably of the Family Court to undertake the review the application

was seeking of the plan.

429 Cathy Flynn to Registrar, Family Court, 20 November 2000. Doc 420. There were 2 attachments: Patricia’s letter to Cathy Flynn of 16 November (to which she had not yet responded), and Jill Dawson’s fax to Mariella at Tamahere on 3 November. 430 Maureen Reti and Hugh Smith to Family Court, Tauranga, 6 December 2000. Doc 448.

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A third question: if Flynn’s report was withheld by the court from Maureen, why

was it passed by Flynn’s office to Tony Page, the CYFS solicitor in Tauranga, on 22

November 2000? He forwarded it immediately to John Henwood at CYFS Paeroa,

with a covering note asking if Maureen had been offered access with Patricia on her

birthday which was that very day. 431

The Official Version of the Tamahere Events

Key documents are Cathy Flynn’s report of 20 November to the Family Court432

and the CEO of Haora Waikato’s report to Ms Flynn of 24 November.433

Ms Flynn told the court that Hauora had advised her that the assessment broke

down because Maureen decided to leave the programme on the morning of Friday 3

November and that ‘the breakdown had nothing to do with CYPFS, that the

assessment was a self-referral from Ms Reti’—a complete non sequitur, as if Maureen

self-referring was a cause of it breaking down months later.434

The Hauora explanation, 435 summarised here and adopted by Ms Flynn, was that

Maureen had arranged the assessment with Dr Hester Swart and that CYFS had had

no involvement until 29 August when Jill Dawson attended a hui with Maureen and

Hugh and Olga Campbell. At that time ‘CYFS did not request a report or information

apart from ascertaining the safety of the children during the proposed assessment’.

The contract took some time to negotiate, especially since Maureen was

unhappy regarding the arrangements concerning visitors. Also during this time, Hugh

had contacted Hauora seeking a letter ‘to prove to the courts and “everyone” that

Maureen was not all talk’.

On Day Three, Maureen began to demand that Hugh be allowed to visit but was

refused by General Manager Sue Poa as per the contract, from concern that it would

compromise the assessment ‘and the Hospital was also conscious of the assault

against Mark’.

On Thursday 2 November and Friday 3 November, Maureen had removed from

her various items that were not permitted during the assessment. Maureen became 431 Shelley to Tony Page, Tony Page to John Henwood, 22 November 2000. Doc 420A. 432 Cathy Flynn to Registrar, Family Court, 20 November 2000. Doc 420. 433 Rei Wirihana to Cathy Flynn, 24 November 2000. Doc 429. 434 Cathy Flynn to Registrar, Family Court, 20 November 2000. Doc 420. 435 Rei Wirihana to Cathy Flynn, 24 November 2000. Doc 429.

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more agitated, demanding to have Hugh visit or to leave with the children and

‘expose’ Hauora Waikato to the media. In response, on Friday 3 November, Tamahere

contacted CYFS to clarify the children’s legal status, ‘and there was no instruction to

Hauora Waikato from CYFS at all, apart from a fax confirming the legal status of the

children and confirmation that they should not leave the hospital’—Jill Dawson’s fax

of the late morning that also suggested a 7 November hui. ‘Faxes were also coming

constantly from Hugh Smith’. The entire hospital, including Patricia and Mark, were

then evacuated to a safe area and the Unit Manager and CEO were called to the

hospital ‘to manage the risk Maureen was posing to the whole hospital’, Maureen

being ‘enraged and threatening’. Police were already in attendance for another matter

and after holding a discussion with them Maureen ‘left of her own accord’, although

threatening management staff. ‘The children were informed appropriately that their

mother had left the hospital but appeared unperturbed.’

Several days later, Wirihana continued, a group of ‘heavies’ who called

themselves ‘the Maori Task Force’ came to Tamahere ‘to make various threats to the

Unit Manger against Hauora Waikato personnel and the organisation’. When refused

admittance, they came to the Hamilton offices and confronted CEO Wirihana and

other Hauora staff:

Their discussion was abusive, arrogant and threatening and they were armed with false information (given by Maureen i.e. that CYFS had paid us for a report … and a range of other inaccuracies and allegations). Wirihana stated for the record that Hauora Waikato was a charitable trust

privately owned by Maori and had never received funds from CYFS.

Although welcoming a return of the children, he refused to entertain any further

contact with Maureen. He accused her of abusing the kaupapa and welcome of

Hauora. He could not ‘risk the well-being of the whanau of Tamahere Hospital with a

repeat of Maureen’s behaviour’. He also proposed a more expansive opinion of what

Maureen had been up to with all of this, now accusing her of calculated deceit over a

period of months from the beginning:

Having read the file, the clinical notes and listened to the discussion of the visitors that Maureen sent, I also now believe that Maureen Reti attempted to use and manipulate Hauora Waikato for her own advantage as it related to her pending court case. I believe also that she had little intent as it related to the welfare of her children but her charade could not last the distance.

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Several of these points do not appear from the documents:

• The clear understanding that Hugh and Olga Campbell had was that they

would be permitted to visit; Ms Campbell even turned up.

• The implication from Wirihana’s report is that Tamahere understood the

assault on Mark to have been committed by Hugh and that Hugh was an

ongoing threat—who had led them to believe this?

• The faxes from Hugh were almost all the urgent legal documents that

needed dealing with that day not, as Wirihana’s report implies,

inflammatory support for Maureen disturbing the peace.

• The Police jobsheet and what Hugh was told by Ani Keepa indicate that

the Police were called specially to evict Maureen, not that they were

there anyway.

• The explanation the Police were apparently given is not expla ined here.

• The Police jobsheet account does not present Maureen as posing a

communal threat but as simply upset and intransigent. Both accounts

agree that she left of her own accord.

• Maureen and Hugh have an entirely different account of the ‘heavies’—

who they were, what sort of person they were and why they went there—

regardless of the CYFS funding issue. One question that springs to mind

is who was ‘abusive’ first? Did the ‘heavies’ arrive belligerently (if

indeed they ever actually were belligerent) or did they become more so

after having been treated abruptly by Hauora staff and the situation

escalated?

The leader of the ‘heavies’ was apparently Albie Orme, together with Ian

Morgan (formerly of the Justice Department) and Eru Wetere (kaumatua).436 Albie’s

version of events is that they went to Tamahere and then returned to the Hamilton

headquarters ‘to receive a Powhiri on your behalf’. He stated the outcome of their

approach to Hauora was:

There was a general agreement in a Maori sense that all the parties were to make an effort to move to a position of whakaiti (step back with tolerance, equanimity, forbearance) and for everyone collectively to remove the whakahihi (arrogance, highmindedness) so that the objectives can be reached, namely that a report be completed for the Family Court judge.

436 Albie Orme to Hugh Smith and Maureen Reti, 7 December 2000. Doc 456A.

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Also, he said:

We have some members of the Waikato Hauora who respect your position. I have brought them under my wing to assist you, the issues are not complicated but are highly emotional when CYPS treated you with arrogance and high handed methods.

None of this sounds like the scenes of mayhem and verbal violence described for Ms

Flynn’s benefit by Wirihana, and it was written without knowledge of Wirihana’s

report, so was not countering it or justifying anything.

Dawson continued to act to block Maureen’s access to the children and, as Hugh

put it, ‘to rub salt into Maureen’s wounds’. At 12:30pm on Friday 17 November,

Dawson phoned Maureen and threatened to restrict access to Mark if Maureen

persisted with her intentions of visiting him on his birthday two days away on Sunday

19 November. Hugh intervened, phoning Tony Page.

[Hugh] explained that Jill had no grounds to be so cold, so cruel, or so callous especially on such an occasion. Tony Page obliged by making a phone call to CYFS Paeroa. That was the end of the threat on that occasion but on Saturday 18th Maureen found out that after Tony Page’s intervention, CYFS on the Friday night had sent Mark to Rotorua, for the weekend, to prevent him from seeing his mum on his birthday. 437 Following this behaviour, Maureen faxed Tony Page, the CYFS solicitor in

Tauranga, urgently on 22 November. She had met with him in his office on Tuesday

21 November and he had undertaken to ask CYFS Paeroa why Jill Dawson had

refused her access to her children for their birthdays: Mark on 19 November and

Patricia on 22 November. He had at that time apparently agreed that he knew of no

reason:

• why access should no be granted;

• why the names of the Paeroa Resource Panel members should be

withheld from her; and

• why the Parawai school principal should have the impression he needed

CYFS permission to talk to Maureen about her children. 438

When she had phoned Patricia that morning to wish her happy birthday, Patricia had

told her that a CYFS worker had visited Tania’s house the day before with $100 to be

437 Hugh Smith to Gerald McArthur, 25 June 2001. Doc 678. 438 Maureen Reti to Tony Page, 22 November 2000. Doc 423. It should be noted that it seems that the issue with Dawson was not access per se, but whether that access should be supervised.

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spent on the children for their birthdays and Tania had told Patricia that Maureen was

not allowed to see the children any more. This contrasted with what Maureen had

previously arranged with the children, that she would take them to a restaurant and

supervise them spending $20 each to buy their own gifts, thereby being rather more

parentally responsible.

In response to Maureen’s request to Tony Page, and Page’s passing that on via a

note on the cover of Flynn’s report, since Jill Dawson was on leave John Henwood,

CYFS Paeroa Social Work Supervisor, approved access for Maureen with Patricia,

but since it was already on the date of Patricia’s birthday and there was a meal with

the Mapu family that evening, at 4:30pm on 22 November Henwood required it to be

for 2 hours from 3 to 5 pm on Friday 24 November. He also stated: ‘We are also in

agreement that it does not need to be supervised.’439 Maureen copied Henwood’s fax

to Page and asked whether he believed it would cover her concerns as expressed to

him.440 Page apparently replied to neither that nor the fax of the day before.

However, this arrangement meant that Maureen saw neither of her children on

their birthdays, and of course that they did not see her. So she was not the only one

punished, but the children were also harmed once more in the course of CYFS

conducting its unilateral, punitive disciplinary campaign against Maureen.

Maureen, meanwhile, continued to seek help for herself and the children, this

time separately. On 23 November, she wrote to DW and GJ Harvey of Vizion

Counselling and Training Services, Waitoa, regarding the children, as they had been

highly recommended by Olga Campbell of the Te Aroha MWWL, 441 while on 24

November Warren Parker of Morrinsville Community House informed Maureen’s

GP, Dr Carroll, and then CYFS on 27 November, that he had taken on Maureen as a

client for counselling relating to severe depression. 442 He sought WINZ assistance for

Maureen in paying his professional fees (since Maureen was receiving a benefit on the

basis of suffering from depression).443 Apparently this funding assistance was never

provided; is there a generic reason why WINZ cannot fund such counselling, or was

this purely a decision to exclude Maureen from assistance?

439 John Henwood to Maureen Reti, 22 November 2000. Doc 422. There was no fax record of Maureen having made a request to CYFS Paeroa, so Maureen’s earlier request must have been made during the teleconference with Dawson on 17 November. 440 Maureen Reti to Tony Page, 23 November 2000. Doc 427. 441 Maureen Reti to DW and GJ Harvey, 23 November 2000. Doc 428. 442 Warren Parker to Dr W Carro ll, 24 November 2000. Doc 433. 443 Warren Parker to WINZ, 27 November 2000. Doc 434.

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On 27 November, Patricia phoned in distress because Tania’s eldest son—the

responsible 14-year old in whose care all 9 of them had been left with CYFS and

Flynn’s blessing?—had been picking on her and throwing sausages at her. Maureen

faxed Dawson the next day to ask (a) whether Dawson had dealt with the situation and

(b) for a meeting of both families, CYFS and Flynn to resolve the concerns regarding

the placement in that household.444 Dawson’s response was based on discussions with

Patricia and Tania and was to the effect that a food fight in which Patricia was

participating had got out of hand, but that all was quiet later in the evening when the

CYFS duty worker had checked.445 No response was made to the request for a

meeting.

A meeting was called by Dawson, though, in a letter dated 1 December, received

by Maureen on 4 December, for a meeting to be held on 7 December to ‘review Mark

& Marion’s plans’.446 Apparently, although this was arranged without consultation

with Maureen and Hugh—surely the two people most closely affected and Maureen

with the greatest rights in the matter—other Reti whanau were consulted in late

November prior to Dawson’s letter being written. The impression given, if not the

actuality, is that CYFS were neglectful to the point of preferring that Maureen and

Hugh did not turn up. In fact, Hugh and Maureen both had pre-existing engagements

away from Paeroa on that date and could not attend (and advised Dawson by fax on 4

and 6 December respectively).447

Maureen’s absence was backed up by a poorly proofread letter from Mark

Beech, partner of Sharp Tudhope, Tauranga, which also expressed disappointment at

the short notice, especially since she was the mother.448 On Maureen’s behalf, he

proposed access arrangements over the Christmas period at Maureen’s rebuilt house

in Te Aroha, including live- in assistance from Ms Shelley Tamati with her son,

support from Olga Campbell and MWWL, Te Aroha Police, and the local Maori

Wardens. Maureen had also begun meeting with local counsellor Gaewyn Harvey for

guidance and support, had arranged a ‘safe house’ with Open Home Foundation

should it be necessary for time out or in a crisis, and had arranged assistance from the

444 Maureen Reti to Jill Dawson, 28 November 2000. Doc 436. 445 Jill Dawson to Maureen Reti, 30 November 2000. Doc 441. 446 Jill Dawson to Maureen Reti and Hugh Smith, 1 December 2000. Doc 444. 447 Hugh Smith to Jill Dawson, 4 December 2000. Doc 446. Maureen Reti to Jill Dawson, 6 December 2000. Doc 449. 448 Mark Beech to Jill Dawson, 6 December 2000. Doc 450. See, for example, the various references in his letter to ‘my’ children it being cut and pasted from Maureen’s email to his firm.

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Safer Community Committee if necessary. Maureen sought financial assistance in

providing for Ms Tamati.449

On 28 November, Ms Flynn sent to the Family Court a copy of the report she

had received from Wirihana at Hauora Waikato. She also copied it to Jill Dawson at

CYFS Paeroa and to Tony Page at CYFS Tauranga.450 This communication raises the

question of the status of Wirihana’s report.

• Was it ethical of Wirihana to write such a report to Flynn in the first

place about patients/clients in Hauora’s care, even after that care had

ended? Prima facie it was not, beyond a notification that they were no

longer in care and that the assessment as anticipated by the court had not

been completed.

• Beyond general client/caregiver ethics, there is also the question of

Hauora’s specific contractual obligations towards Maureen and the

children as set out in the documents signed upon admission. This

required at a minimum the checking by Maureen of any information

imparted to a third party and being in Hauora’s own document should

have been the standard to which they adhered.

• Given that Wirihana had reported to Flynn, on what basis did she then

forward it to the court? Clearly it was prejudicial towards Maureen, but

was it part of Flynn’s obligation as court-appointed counsel to pass on to

the court relevant information that had come into her possession?

Maureen was not her client so she owed her no professional obligations

in that respect, but was it arguably in the children’s interests to inform

the court?

• On what basis did Flynn also pass the Wirihana report on to 2 different

elements within CYFS? What professional obligation did she owe them?

Her responsibilities were to protect the children’s interests vis-à-vis the

court (which she had hardly been proactive in doing until now), not to be

a purveyor of second-hand information to CYFS. Does the custody order

place obligations on people such as counsel for the child to provide such

information to CYFS as distinct from the court?

449 See also the documents attached to Doc 451. 450 Cathy Flynn to Registrar, Family Court, 28 November 2000. Doc 439.

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• Does the Privacy Act cover such a situation, apart from such professional

ethical questions?

• On what basis would such information be withheld from Maureen, given

that it was provided to all other parties to this business? Prima facie it

appears to be yet another instance of prejudicial information being

circulated about Maureen (or Hugh) without their knowledge or their

being given any opportunity to respond, explain or correct.

• At the whanau meeting on 7 December, Flynn told all those present

about the contents of her report and the Wirihana report. What possible

basis could there be for that except to humiliate and denigrate Maureen

in the eyes of the whanau members attending, who had no right to be

told this being neither the court nor in possession of whatever rights

CYFS may have had under the custody orders.

• On10 December, Maureen faxed Hauora and Tamahere expressing

sadness and disappointment at the breakdown of the assessment and a

repeated offer to meet to discuss and rectify the situation. 451 She also

pointed out in detail the use Flynn was making of the Wirihana report

and that Maureen herself had never given any authority for her

confidential client details to be made available to anyone, let alone in the

form they were now being employed. She stated her concern at these

flagrant breaches of trust, privacy and professional ethics.

Since they knew of Flynn’s 20 November report having been ordered, on 6

December 2000 Maureen and Hugh asked the Family Court directly for a copy to be

provided.452 They did not ask for a copy of Wirihana’s Hauora report as they would

have had no knowledge of its existence. The court did not supply the report, though,

and the documents appear to give no evidence of the court responding or even

explaining why Maureen should not be provided with it. Indeed, a court registrar told

Maureen verbally that the report would not be disclosed to any other parties, herself

and CYFS included. However, in addition to those going to CYFS, apparently Sharp

Tudhope were supplied with a copy of each report, but then Maureen’s lawyer refused

to give her access to either on the grounds that the court had not approved its

451 Maureen Reti to Hauora and Tamahere, 10 December 2000. Doc 463. 452 Maureen Reti and Hugh Smith to Family Court, 6 November 2000. Doc 448.

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release.453 This of course was quite apart from Flynn’s public disclosure of the

contents of both reports to the whanau meeting on 7 December despite Maureen’s

request to her face at the time to stop doing so.

On the issue of breach of privacy, on 11 December Maureen wrote to the

Privacy Commissioner setting out the situation and asking about a number of specific

aspects of the business. A preliminary response was written on 21 December

indicating that there were several aspects that appeared prima facie to breach Principle

11 of the Privacy Act which provided that an agency holding personal information

should not disclose that information unless that agency believed on reasonable

grounds that one of the 9 specific exceptions applied.454 The only exceptions that

could possibly apply are in (e), that non-compliance is necessary:

(i) To avoid prejudice to the maintenance of the law by any public sector agency, including the prevention, investigation, prosecution, and punishment of offences; or… (iv) For the conduct of proceedings before any court or Tribunal (being proceedings that have commenced or are reasonably in contemplation) It would seem, though, a pretty big stretch to regard the self-referred assessment

of Maureen and the children as being crucial to the maintenance of the law by CYFS,

especially since there was no ongoing need for prevention or investigation of offences

and the prosecution was unrelated to the assessment. Also, although Flynn’s report

was in relation to the conduct of proceedings before the court, the Wirihana report

was not directly in such a relation, was not requested or ordered by the court, was

provided to someone other than a court official, and was then circulated amongst only

some of the parties to those proceedings.

Despite neither Maureen nor Hugh being able to attend, the whanau meeting

Dawson had just called went ahead anyway. It is hard to see what such a meeting

could have hoped to achieve without their presence in regard to making future plane

for Mark and Patricia and their return to Maureen and the resolution of the situation.

Maureen did manage at the least minute to attend but this cannot have been known by

Dawson prior to the meeting. At the whanau meeting, Cathy Flynn told those present

of the content of both her report to the Family Court and the Wirihana report from

453 Maureen Reti to Registrar, 22 December 2000. Doc 484. 454 Deborah Marshall to Maureen Reti, 21 December 2000. Doc 481.

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Hauora Waikato.455 This was done although Maureen had not been told of either

report’s existence, Maureen had not been provided with either report, Maureen had

had no opportunity to explain or dispute any of the representations within those

reports, Maureen as the subject of those reports and party to the proceedings they

related to had a right to the information whereas it is hard to see what right any other

whanau members had to any of the information. Ms Flynn needed to do no more in

that forum than state that the assessment had broken down, and perhaps that it was

acrimoniously, and that the Tamahere assessment as proposed was not now an option.

She did tell the meeting that she was going to ask the court to send the children back

to Tamahere on their own. As to CYFS responsibility in this regard, of course it was

Flynn’s decision to make these statements and over Maureen asking her in front of the

meeting to desist, but surely it was a meeting called by CYFS, being he ld at CYFS

offices, and being chaired by CYFS. Did not the CYFS representative, presumably

Dawson, then bear responsibility for stopping this inappropriate behaviour?

Hugh again asked the court for copies of both reports urgently, but again was

ignored and they were not supplied.456 There is no documentary record here of

consideration having been given to the detailed proposal for the Christmas holidays

that Maureen had advanced through Sharp Tudhope, although Maureen did state that

Dawson did concede that the children’s ‘first wish’ was to spend the Christmas

holidays in Te Aroha with Maureen where they had their own separate space and

bedrooms.457

Christmas 2000

At this time, Mark and Patricia were clearly alarmed at the prospect of not being

with Maureen over the impending Christmas holidays. They wrote letters in their own

hands (and obviously uncorrected by adults) to CYFS asking to go home and not to be

sent back to Tamahere.458 Mark wrote:

455 Hugh Smith to Registrar, Family Court, 7 December 2000. Doc 455. 456 Hugh Smith to Registrar, Family Court, 7 December 2000. Doc 455. 457 Maureen Reti, application, 11 December 2000. Doc 466. 458 Docs 459 and 461.

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I will like to go home with my Mum and Dad. I will like to stay with my Mum and Dad for ever and for the chrismas holadys. I will like stay with my famirs for ever.

Patricia wrote:

I Patricia Marriott want to have the hole six weeks with my Mother and Hugh and my Aunty Shelly (up in Aunkland). I don’t want to go to Tamahere Hospital. These letters were witnessed by Nathan Cropp and Camellia Reti, together with

Joseph Iriangi and Emily Taka, elders familiar to them who also wrote character

references in favour of Maureen and Hugh. 459 Although it is clear that these letters

were written by the children themselves, what is not apparent from any of the four is

the precise circumstances under which they were written and thus, from a CYFS point

of view, the degree of ‘coaching’ that might have taken place. It is also interesting that

Camellia as a close and adult observer was still apparently supportive of Maureen and

her whanau, despite the tension that obviously existed with Tania.

Maureen continued to try to set up her Christmas holiday programme. On 11

December she faxed Dawson twice with revisions to the support personnel and asking

for Dawson’s urgent assistance in implementing the plan before the court considered

it and the Open Homes home was used.460 By 18 December, Takiri Cotterill, Paeroa

Branch Director of Open Homes, had confirmed Maureen’s self-reference and that

Dawson had confirmed CYFS interim care of the children (but not that CYFS would

support this arrangement).461

Also on 11 December Maureen applied to the Family Court for an urgent

judicial review of the children’s plans to allow for them to come to her over Christmas

as had been proposed prior to the 7 December meeting. She attached the children’s

letters as evidence of their wishes. She did, though, expand it beyond the temporary

care of the Christmas holidays and propose a full return, using the support structures

she had been putting in place in Te Aroha in lieu of the Tamahere assessment.

Specifically, Maureen also asked for a court order that CYFS refrain from interfering

in the implementation of the plan as she alleged they had done at Tamahere and as an

unnamed social worker (Dawson?) had already done regarding personnel in the

proposed plan. This application also set out other concerns Maureen had, such as the

459 Docs 460 and 462. 460 Maureen Reti to Jill Dawson, 11 December x 2. Doc 465. 461 Doc 465.

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bullying and physical violence Mark was experiencing at the hands of Tania’s

children, the continuing ignoring of Patricia’s constantly expressed wishes in various

forms, and the behaviour of Cathy Flynn at the 7 December whanau meeting. 462

A judicial conference was set down for 20 December, apparently with regard to

the post-Tamahere application for review rather than Maureen’s Christmas

application. 463

On 17 December, Tania had to go into hospital. She asked Maureen to take her

two children for a couple of days. On 19 December, CYFS found out about this and

that Tania said Maureen had now told her the children would not be returned. John

Henwood faxed Maureen (together with Flynn, Tony Page and Sharp Tudhope)

requiring that Maureen return the children that day or CYFS would report the matter

to the Police since their removal and Tania’s ‘consent’ was ‘without our knowledge,

consultation or consent’.464 It might be thought that fault lay not with the mother for

looking after her children when they were to be without care, but with the CYFS-

appointed caregiver for not making more appropriate arrangements with CYFS. The

‘not returning’ was in relation to the children wishing to be present at the Family

Court the following day so that they could find out for themselves from the judge as

to why they were being treated as they were, since no-one had been explaining things

to them apart from Tania’s misinformation. One also wonders why, if Tania really

believed what CYFS and Flynn said she had been telling them, she so obviously put

Maureen ahead of CYFS in terms of providing this care for the children.

Judicial Conference 20 December 2000

The judicial conference on 20 December, far from resolving anything and

providing some opportunity to bring the family back together, was another

unmitigated disaster as far as Maureen and Hugh were concerned. Judge Neal again

heard the case. Perhaps because the children were present (but no reason was

462 I note that this application and Hugh’s supporting affidavit Doc 467 were both witnessed by Phil Clarke at Tauranga court. Why did he not at that time provide them with the Flynn and Wirihana reports they had asked for? 463 Doc 470. 464 John Henwood to Maureen Reti, 19 December 2000. Doc 473.

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minuted), he moved discussion into chambers so that only Page, Flynn and Stephen

Coyle from Sharp Tudhope were present. Four directions ensued:465

1. a s 135 review of the plan was directed

2. a s 178 psychological report was to be obtained, to which Maureen’s

consent was given, and Flynn was to prepare a brief outlining issues by

19 January 2001

3. a further judicial conference was to be set to consider ‘further issues’ or

‘what other direction required’ once the s 178 assessment was available

4. it was inappropriate that children should attend a judicial conference as

their wishes could be obtained by counsel for child, therefore they were

not to be present now

It was not stated when the s 135 review was to take place, although the notes

though not the distributed minute say ‘early’. Maureen had indeed instructed Coyle

that she consented, but it was only on condition that her Christmas plan was

presented. The children therefore had no opportunity to present their wishes to the

judge personally, nor to receive any explanation of what was happening to them. The

wording that Flynn ‘can obtain their wishes’ appears to indicate that the judge was not

made aware by any of the counsel that the children had done so clearly.466

Once open court was resumed, Judge Neal admonished Maureen for the removal

of the children, telling her that if she had concerns for the children’s wellbeing she

should tell the social worker or risk being held in contempt of court. (Again this

seems rather misdirected given that Tania had not merely ‘consented to an uplifting

but had instigated the situation.) This indicates that the judge had not been made

aware of the many times Maureen had indeed made such complaints to CYFS, with

almost complete inaction as a result.

At that point, Flynn applied verbally for a restraining order against Maureen,

and this was declined, but only, according to the file note, because Judge Neal did not

believe he had jurisdiction. This seems a massive, not to say spiteful, over-reaction on

the part of Flynn as the instances of the children’s exposure to Maureen over the

months were due more to a chronic failure of CYFS to set up a proper system and

monitor it than they were to Maureen harassing and abducting them. How would such 465 S Keen, minute, 20 December 2000. Doc 474; Family Court file note, 20 December 2000. Doc 474A. 466 Tania had a prepared korero for the judge but this was unable to be delivered under the circumstances. Doc 475.

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a restraining order have been in the children’s best interests in the present

circumstances, let alone any other time that might have been under consideration?

As to Maureen’s arduous ly constructed Christmas plan (and the children’s

clearly expressed wishes), this was simply ignored. Instead, although it does not

appear in the court’s directions or file note, apparently the meeting in chambers

resolved that the children would be sent elsewhere. As will become apparent, not only

did Maureen’s work not get presented to the court by her counsel, but the opposition

by CYFS and counsel for child to anything she offered seems to have been so

unbending that they would do anything with the children rather than let them be with

her.

Later documents refer repeatedly to this conference also resulting in a

CYFS/Flynn plan agreed to in chambers by Coyle for the children to go not to

Maureen but to Bennydale. Further, within whatever the location was there, there was

a convicted child molester in situ. CYFSS seem to have been prepared to put them

anywhere other than with Maureen, yet unwilling to do the necessary research before

devising an adequate alternative. Any such variation to the plan was not reflected in

either of the official documents resulting from the conference, so it is not clear how

organised that arrangement was, nor how and why it had even arisen.

It may be noted that there was an obvious problem with Stephen Coyle not

presenting and arguing for the plan drawn up by his client, Maureen, as instructed.

This is a professional problem between his client and him, although ‘the system’ does

intrude in his later comment that he preferred to maintain his relationship with Flynn

than advocate vigorously for his client. However, the court did have before it

Maureen’s plan, regardless of what he said or withheld, as Maureen had filed it

herself as Exhibit F attached to her application of 11 December (Doc 466). Therefore,

either (a) the judge had not been supplied with all relevant documents, (b) the judge

himself ignored the plan, or (c) the plan was discussed and dismissed, presumably

because of opposition from CYFS and Flynn. The file note says nothing about it.

On the following day, Colin Lynch (a driver from CYFS Paeroa?) phoned

Maureen to tell her that in two day’s time she would be given the children for a five-

day stay until 28 December, when she was to return them to Tania’s. Maureen

appreciated both the message and Lynch’s ‘nice manner’ when delivering it, but was

upset at the casual way in which this was dropped on her without any prior

consultation as to how suitable it would be. She also asked for a full schedule of

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where CYFS intended to place the children after 28 December and what provisions

would be made for their care.467 A written response from Jill Dawson came in a fax

from John Henwood at 5:36pm. 468 She and Flynn had agreed that the children should

be with their mother over Christmas and CYFS would transport them to and fro. She

was still discussing further access arrangements with Flynn ‘and you will be advised

shortly’—no mention of consulting Maureen as to what might be suitable for her.

Dawson did not mention Maureen’s proposed plan directly but said that she had sent

forms to Shelley Tamati (but not received them back yet), while the type of

emergency care Maureen wanted from Open Homes was ‘outside their brief’ and

complicated by the children being in CYFS custody, problems apparently not

mentioned by Open Homes themselves to Maureen and although Open Homes were a

CYFS sub-contractor. As to other placements for the children, CYFS supported

whanau placement and had agreement for a weekend from paternal aunt Beryl

Marriott in Hamilton and Martha Reti, while also camp options were being

investigated—again apparently anything to keep them from being with Maureen.

An exchange then took place between Maureen and Coyle as to what had gone

on.469 She said he had said he would not jeopardise his professional relationship with

Flynn in order to support her application to have her replaced as counsel for child. He

replied that he had said he would not file the complaint in his name due to that

relationship but that he would help her draft such an application. She took issue with

the chambers hearing and the exclusion of Hugh; he claimed it was all up to the judge

and that Hugh had been present in open court—but this missed the point that Hugh

was there representing himself and should therefore have also been in chambers and

seated with counsel. She claimed he was unduly influence by Flynn; he denied this

and said that everything had been dealt with by the court as he had predicted prior to

the conference. She concluded there was no point in proceeding with the s 178

assessment since her pre-condition of the Christmas plan was not even alluded to by

the judge; he argued that her only option was ‘to present to the Court evidence that the

children are safe with you’ and that this could be done either by her obtaining such

467 Maureen Reti to John Henwood, 21 December 2000. Doc 478. 468 Jill Dawson to Maureen Reti, 21 December 2000. Doc 478A; John Henwood to Maureen Reti, 21 December 2000. Doc 478B. It appears from 478B that the original had been posted earlier but return undelivered for some reason and that this and Henwood’s covering letter were faxed once Maureen had faxed and the omission became apparent. 469 Docs 479, 480, 482.

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evidence at her own expense, or by having the s 178 assessment of herself and the

children (and perhaps Hugh) at the court’s expense.

The difficulties Maureen had with counsel would be compounded by a letter

sent by Stephen Coyle to the Legal Lid Unit, asking for greater than usual fees

because Maureen and Hugh were ‘quite difficult to deal with’ and hinting that this

might be more than personality but might actually be ‘psychological and/or

psychiatric difficulty’.470 For confirmation of this difficulty ‘due to the personalities

involved’, he suggested that the Unit contact Cathy Flynn. This letter would

apparently be used later against them in subsequent attempts to get legal aid funding

as they continued their various battles.

On 22 December Maureen sent a lengthy letter to the Family Court outlining

many concerns and irregularities they perceived, and again asked for copies of the

Flynn and Wirihana reports.471 As a followup on the following day a second letter was

sent for the judge detailing the concerns Maureen had with the conduct of the

conference and what she understood had not been put before the court, as well as

asking once more for the two reports.472

At this time, undated responses from Minister Steve Maharey were received by

Maureen and the MWWL rejecting the complaints against CYFS.473 These were, of

course, penned by officials and merely signed by him, but they justify everything

done by CYFS using generalisation or taking of small pieces out of context. None of

the issues were addressed in detail and the entire responsibility, no t to say blame, was

put straight back on Maureen.

Hugh wrote to Cathy Flynn, Jill Dawson, and Tania and Robin Mapu on 11

January 2001 asking them directly why they held the opinion that his presence near

Mark and Patricia was undesirable, and why they had expressed that belief to

others.474 No one ever responded to this query, apparently.

Stephen Coyle wrote to CYFS pointing out that considerable periods of

unsupervised access to both children had been granted recently and asking on

470 Stephen Coyle to Rotorua Legal Aid Unit, 21 December 2000. Doc 482. 471 Maureen Reti to Registrar, 21 December 2000. Doc 483. 472 Maureen Reti to Registrar, 22 December 2000. Doc 484. 473 Docs 488 and 489. 474 Hugh Smith to Cathy Flynn et al, 11 January 2001. Doc 496.

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Maureen’s behalf that regular fortnightly unsupervised access be instituted.475 This

formal approach was apparently made after CYFS had again begun insisting on

supervision of access.

From this point, if it had not before, the issue of the availability of legal aid

funding for the two sets of litigation became an issue. In the Family Court, Stephen

Coyle was not prepared to appear without additional funding.

On 22 January 2001, the case flow manager of the Tauranga Family Court

confirmed in writing that Flynn’s 20 November report ‘was for the information of the

Court and should not be released to the parties involved in the proceedings’.476 He

said nothing about the fact that everyone but Maureen had been provided with the

report (and the Hauora one) the day after the court received it.

On 23 January 2001, the court notified that Kathy Orr had been appointed to

prepare a section 178 report for the court.477

On the same day, Stephen Coyle advised Maureen that he had negotiated with

CYFS concerning access.478 He had been told that Dawson had offered Maureen two

2-hour visits per week with both children in Maramarua where they were presently

located, but that Maureen had not taken up those opportunities. CYFS were prepared

to consider unsupervised access every second weekend, but only on the condition that

Hugh was not present. Coyle thought that since there was not yet any definitive court

finding as to whether Hugh was an abuser or not, this was a ‘fair enough stance for

the Department to take’. Coyle also notified Maureen that CYFS were now intending

to split the children up, leaving Patricia at Maramarua with Brenda Reti, but returning

Mark to Tania Mapu in Thames, especially because his school there was already set

up for dealing with him.

There had been no filed discussion to this point about why this split was made,

nor why Patricia should have had to stay with another aunt, rather than return to

Maureen as per the mid-September arrangement. While it had the advantage of

removing Patricia from the overcrowding at Tania’s, it meant that Maureen now had

to go to two different places to see the children, neither being a place in which she

lived nor close to Te Aroha. In any case, apparently Brenda could not cope with Mark

and after only a week it was decided that he should go back to Tania, however 475 Stephen Coyle to CYFS Paeroa, 16 January 2001. Doc 497. 476 Phil Clarke to Hugh Smith and Maureen Reti, 22 January 2001. Doc 502A. 477 Kathleen McDonald to Stephen Coyle 23 January 2001. Doc 503. 478 Stephen Coyle to Maureen Reti, 23 January 2001. Doc 504.

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Maureen apparently also arranged with Open Homes new caregivers, Stephen and

Raewyn Kake, for Mark in Thames as a contactor to CYFS.

Realising that Coyle was not representing Hugh, and that technically Hugh’s and

Maureen’s interests were different and he had to look out for his client, Coyle’s ready

acceptance of the possibility of Hugh being ‘an abuser’ and thus to be excluded from

the children, while Maureen was not and should have unsupervised access, is hard to

credit in someone who had had access to file material and who was not supposed to be

committed to the CYFS position. If this was indeed the CYFS position, as he

portrayed it to be, then why were they making it so hard for Maureen too? The events

of 9 February, and the other history of Maureen’s whanau and relationship with Hugh,

gave no support at all to the view that Hugh was ‘an abuser’ beyond the potential

associated with that one event. Indeed, the Matich position had been that Maureen

was ‘the abuser’ and that her abuse of the children was escalating, such that she

deserved to lose them. It also ignores the agreement Hugh and Maureen had that they

were equally responsible, although admittedly it does also seem to follow Lynette

O’Boyle’s opinion that Maureen had little responsibility for the ‘abuse’ of 9 February.

On 26 January 2001, Maureen discharged Stephen Coyle as her counsel in the

Family Court proceedings, largely because of the various ways she thought he had not

been representing her interests and acting according to her explicit instructions.479

On 28 January, Jill Dawson delivered Mark to Parawai School and spoke with

the principal about Maureen’s concerns regarding bullying, although apparently at

school not Tania’s.480 An Open Homes Foundation social worker would be picking

Mark up from school and taking him to new caregivers, the Kakes, arranged with the

Foundation. Dawson had not been able to make phone contact with Brenda Reti and

was assuming that she had enrolled Patricia at Maramarua School.

Ending the month, Maureen wrote to Jill Dawson asking for clear parameters to

be set regarding the operation of the relationship between the children and the

schools, her access, and for meetings to discuss Mark’s ADHD and SES programme.

She also asked that the social workers stop embarrassing the children by turning up to

see the during school hours and for note to be taken that Mark had a forthcoming

medical appointment with Dr Newman again.481 Jill Dawson replied on 5 February

479 Maureen Reti to Stephen Coyle, 26 January 2001. Doc 506. 480 Jill Dawson to Maureen Reti, 28 January 2001. Doc 507. 481 Maureen Reti to Jill Dawson, 31 January 2001. Doc 511.

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following a phone conversation on 2 February. 482 An Open Homes social worker,

Alan Scott was to manage Mark’s situation and she had passed on information to him

including the forthcoming medical examination by Dr Newman, and that Scott would

arrange matters with regard to Parawai School. Access was approved for both children

on a fortnightly (? the copy is illegible) basis beginning the following weekend. She

had arranged with Maramarua School that her visits to Patricia and caregiver Brenda

would be after school. Alan Scott confirmed the weekend access times from 5pm

Fridays to 8:30am Mondays.483

Stephen Coyle responded strongly to Hugh’s email of 26 January pointing out

that the declarations and plans had been agreed to by the court following Maureen’s

consent, and that therefore she could not now challenge it as neither Legal Aid nor the

court would countenance any such challenge. Therefore her focus had to be on the

return of the children, which could only come upon submission of evidence, which

was the whole point of the s 128 assessment. The report had to be available to Cathy

Flynn as counsel as of right, but its conduct was independent of her. He concluded by

urging her to cooperate with the psychologist as if she did not then the court could

take any inference it chose from such non-cooperation and she would still be left with

no independent evidence to back up her claims.484 This overlooked the reason, stated

from the beginning, for agreeing to those declarations as being solely so that service

orders could be made and CYFS provide services to the whanau, which it had never

done; arguably the consent had therefore been acquired dishonestly, but at least Coyle

should have been aware of the reasons and been advising her in light of them, rather

than once more taking an opposing position to hers apparently based on ignorance.

Coyle accepted her discharge as her solicitor on 12 February. 485

482 Jill Dawson to Maureen Reti, 5 February 2001. Doc 522. 483 Alan Scott to Maureen Reti, 8 February 2001. Doc 523. 484 Stephen Coyle to Maureen Reti, 2 February 2001. Doc 521. 485 Stephen Coyle to Maureen Reti, 12 February 2001. Doc 528. He did, though point out to the Legal Services Agency that he considered her instructions ‘unreasonable and untenable in law’ and therefore invited the Agency to reconsider whether it wished to continue aiding her.

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The Struggle Continues: the Second Year 2001

Kathy Orr, a registered clinical psychologist from Hamilton, was appointed by

the court under s 29A of the Guardianship Act to provide the s 128 assessment of the

whanau. She wrote to Maramarua School asking for access to school information on

Patricia and for interview access on 20 February. 486 Apparently she also contacted

Mark’s school to make a similar appointment for 21 February. She asked Maureen for

permission for this.487 Maureen, though, refused in writing to give her permission of

an assessment of Patricia, ‘Reason being Patricia was never involved in the issues

surrounding her brother Mark’, and that she had already had a year of unnecessary

distress.488 She also refused permission for Mark to be assessed, on the basis that

CYFS had already had 12 months to do such an assessment and this would traumatise

him further.489 To Ms Orr, when she returned her refusal of permission, she

challenged an assessment based on the methodology being employed, objected to

them being once more singled out in front of their school mates, and because she

understood that it was her own parenting skills that were being questioned, which she

perceived as independent of the children. 490

Cathy Flynn responded to Maureen’s letters saying that a s128 assessment could

be done without the consent of a parent, and in any case CYFS, who had legal custody

and therefore the legal right to determine such issues had consented to the

psychologist seeing the children at school. The school environment was thought

desirable by the psychologist as a neutral environment, and she reassured Maureen

and Brenda that Ms Orr worked unobtrusively. She did not know why children would

be teasing Patricia at this stage, but did warn that to disrupt or prevent the assessment

would be a breach of the court order and a contempt of court.491

At this time there was a further judicial conference in the Family Court, Waihi

(12 February) and a callover at the Tauranga District Court which was rescheduled to

13 March, when a hearing date would be set.

486 Kathy Orr to Maramarua School, 1 February 2001. Doc 520A. 487 Kathy Orr to Maureen Reti, 1 February 2001. Doc 520C. 488 Maureen Reti to Maramarua School, 9 February 2001. Do0c 524A. 489 Maureen Reti to Parawai School 13 February 2001. Doc 531. 490 Maureen Reti to Kathy Orr, 13 February 2001. Doc 531A. 491 Cathy Flynn to Maureen and Brenda Reti. 16 February 2001. Doc 538.

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Over the next few days, Maureen’s representation in Family Court matters was

transferred from Sharp Tudhope to Matenga and Associates in Hamilton.

On 17 February, Patricia handwrote a letter objecting to the assessment and its

purpose, and pointing out the embarrassment Jill Dawson had caused her previously

by coming into her classroom and taking her teacher away to talk with her.492 This

was witnessed by caregiver Brenda Reti as having been written by Patricia ‘on her

own behalf and in her own words’. On 19 February, Maureen faxed to Maramarua

School additional information of her concerns, plus s 179(4) of the CYPF Act

providing that every child who was examined under s 178 was entitled to have an

adult they had nominated present.493

The principal of Parawai School sought further clarification of the legal situation

from CYFS. He was advised by John Henwood that their legal opinion coincided with

Flynn’s, that Maureen’s permission was not required for the assessment, and that

CYFS had agreed both to the assessment taking place and to it happening at the

school. They were not though consenting to Maureen being the person present during

the interview. 494 Maureen received legal advice that if she was present and was asked

to leave the room then she should be seen to be cooperative rather than obstructive.495

On 27 February, Kathy Orr asked Maureen and partner/support person to meet

with her in Hamilton on 16 March for a 1.5 hour interview. 496

Maureen proposed various access dates to Dawson and advised she was going

with Patricia’s school trip for several days to Coromandel. Dawson confirmed these

proposals.497 On 8 March she asked for (and Henwood approved) Mark being taken to

the bike racing in Paeroa as an additional family outing, though not overnight.498

On 13 March 2001 there was a callover for the criminal charges in the Tauranga

District Court.

Tony Page, counsel for CYFS, made submissions to the Family Court on 15

March 2001, apparently opposing an application by Maureen for an access order for

492 Patricia Marriott to whom it may concern (faxed to Flynn, Dawson, Orr), 17 February 2001. Doc 539. 493 Maureen Reti to Maramarua Primary School 129 February 2001. Doc 544. 494 John Henwood to Parawai School, 20 February 2001. Doc 547. This was copied to Maramarua School. 495 File note. Doc 549. 496 Kathy Orr to Maureen Reti, 27 February 2001. Doc 550. 497 Docs 551 and 552. 498 Docs 554 and 555.

169

Mark.499 This is a dog’s breakfast of a document, the dates being so incomprehensible

as to be virtually meaningless. Particularly, the submission is dates 15 March 2001,

but cites events occurring on dates later in 2001 eg Orr’s report dates 9 April 2001,

mixed in with events from 2000. It was in favour of Jill Dawson having reduced

Maureen’s access to Mark in June 2000, although noting that she had been having

fortnightly unsupervised, reduced (why) to three weekly. The initial reduction had

been for various reasons, a comment made to Dr Calvert (when?) by Mark that he was

scared to see Maureen and Hugh (but why?), Mark’s deteriorating school behaviour

(but this was later in 2000 when Mark was unhappy about constantly leaving home to

go back to caregivers), a reinterview of Mark by Tony Palmer on 17 April 2001 re the

alleged assault (when/what was this?), and comments made in Cathy Orr’s report of 9

April 2001 (which had not yet been written on 15 March). He added a grab bag of 6

other reasons, none of which is in context or seems to have much bearing on whether

Mark should be with CYFS rather than Maureen, even were they accurate.

On 16 March Jill Dawson applied to have the expiring s 102 interim custody

order substituted with a final section 101 custody order in favour of CYFS.500 She

referred to and relied on the earlier affidavits of Elizabeth Matich and Louise Cairney

and Julie Mechen, as well as the irrelevant affidavits of Fiona Strange, Dr Clements

and Det Macky.

• She alleged that part of the reason why the placement with Tania Mapu

had ended was ‘relationship difficulties’ between Tania and Maureen,

although this would surely have applied in Mark’s case as well, yet they

kept Mark there to and were sending him back in 2001 until Maureen

arranged the Open Homes alternative.

• She stated that the 23 August 2000 declarations that Mark and Patricia

were in need of care and protection had been by consent, but did not add

that this was effectively a pro forma agreement to obtain the necessary

service orders to provide for the children’s needs—which were never

fulfilled anyway.

• She stated that in the past Maureen had often been oppositional and

unco-operative’ but was now ‘more amicable and willing to co-operate’.

499 Doc 561. 500 Doc 562.

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This gives no indication of what confrontations had been over and

assumes that CYFS is always perfect and beyond reproach.

• She concluded that she believed Patricia was still ‘a child in need of care

and protection’ and therefore applied for the final s 101 custody order.

But none of this argument had borne upon Patricia ever needing any care

and protection apart from the unspecified reliance on the earlier CYFS

affidavits and a misleading reference to Maureen having ‘acknowledged

that she had hit Patricia in the past’, which in context in this document

implies that Patricia had been disciplined in the same way that had led

Maureen and Hugh to be charged with ‘serious assault’.

• Beyond this specious reference to an irrelevant event 13 months earlier,

nothing in Dawson’s affidavit went to the need for any ongoing care and

protection for Patricia, especially such a custody order as she was now

seeking.

• The accompanying information sheet stated that a FGC had been held in

respect of this matter, which was not strictly true and had anyway come

10 months earlier to an opposite view, and that a medical examination

had not been carried out under ss 50 or 53, without disclosing Dr

Clements’ exam. 501

Sacha Nepe of Matenga and Associates advised that, following Rawlinson v

Rice (1998) 1 NZLR 454 there were four elements to be proved to successfully sue a

public officer for misfeasance. She concluded that the difficulty was in showing the

third, the necessary intent by the public officer to abuse their power. In this case, she

could not see sufficient evidence that the social workers uplifting Patricia had

demonstrated that intent and therefore that such a suit would not be successful.502

Maureen requested on 26 March that for the forthcoming April holidays the

children be allowed to spend the entire time with her, as they wished. As well as the

existing arrangements regarding access, which she said had proved ‘beneficial for the

children to spend time with myself and Hugh as a family and as individuals which we

all thoroughly love and enjoy’.503 Note that she stated openly that the children had had

access to Hugh regularly. Jill Dawson responded confirming the continuation of the

501 Doc 563. 502 Doc 573. 503 Maureen Reti to Jill Dawson, 26 March 2001. Doc 577.

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access arrangements into the second term—without mentioning Hugh. 504 She did

though suggest that the time be divided up so that not all of them were there all the

time. Presumably the ‘suggestion’ was rather more of a ruling. She gave no reason for

suggesting such a split and it is hard to think of one beyond a deliberate disruption of

the whanau time together.

Maureen pointed out in reply that she had clearly stated that both children

wanted to come home for the whole holidays, and that this had nothing to do with the

term time access arrangements.505 She had also heard from a third party that the re

were plans to send Mark to yet another placement for a week of the holidays without

consulting Maureen, while both existing caregivers had their own plans for time with

their own families. If the wishes of herself and her children could not be

accommodated then they would appreciate having any objection explained to them.

Dawson upheld her own plan after consulting both Henwood and Flynn.506 She gave

three reasons:

• Until Orr’s assessment was available ‘it is important that we ensure the

safety of both children’;

• Dawson did not want to place Maureen under ‘undue pressure over an

extended period of time’; and

• Dawson’s plan did give the children ‘an increased period of time

together’.

While the last was true, it was so only relative to their term-time arrangements,

but if it was permissible to give increased time, why not the increased period Maureen

proposed and the children also wanted? At what point had CYFS become so

concerned for Maureen? This was a pretty disingenuous argument, especially given

that repeated arrivals and separations for no apparent reason were going to place

substantial stress on all involved. The first point is a complete non sequitur; the

Family Court on 23 August 2000 had concluded that there was no longer any need for

supervised access and shortly after Patricia had been officially returned full-time to

Maureen. How was she now in more danger than then? And similarly Mark had spent

unsupervised periods with Maureen and his behaviour (which had brought on the 9

February incident) had improved noticeably in the intervening year. Note that Hugh’s

504 Jill Dawson to Maureen Reti, 27 March 2001. Doc 577A. 505 Maureen Reti to Jill Dawson, 2 April 2001. Doc 578. 506 Jill Dawson to Maureen Reti, 5 April 2001. Doc 580.

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presence was not given as a reason. These reasons were a pretty thin attempt at

justification for what was effectively yet more unwarranted disruption and stress on

the family. Alan Scott from Open Homes confirmed with Dawson on 10 April the

Dawson arrangements for access through the second term as he was also negotiating

with the other caregivers.507

Maureen advised Kathy Orr that the multi-page psychological questionnaire she

had been sent to fill out was, in her opinion, ambiguous and culturally inappropriate.

She therefore had decided not to complete it, and asked Ms Orr to complete the

assessment on the basis of the discussions they had already had.508

On 9 April 2001, Jill Dawson succeeded in maintaining CYFS custody of

Patricia. In response to her application, the court ordered that she remain in CYFS

custody, although under s 78 not s 101 as she had originally applied for.509 In addition

to the material already before the court, on 9 April the Te Aroha MWWL faxed a

letter of support for Maureen having Patricia returned and ‘fully opposes’ CYFS

application and strongly advised Patricia’s return. 510 There was to be a judicial

conference on 21 May to allow counsel time to consider the psychological

assessment, to consider whether the matter should be mediated, or whether there

should be a hearing regarding a final custody order for Patricia.511

The Orr Psychological Assessment

Kathy Orr’s psychological assessment was completed on 9 April and apparently

received by the court on 11 April. 512 There are one or two initial inconsistencies,

especially the inclusion of Hugh on p 1 as one of the people consulted, whereas in fact

Hugh was never consulted, as the body of the report makes clear. A cursory reading

would give the wrong impression. It listed also the 6 issues to be considered and a

lengthy list of the documents available to the writer—although no indication of what

507 Alan Scott to Jill Dawson, 10 April 2001. Doc 587. 508 Maureen Reti to Kathy Orr, 9 April 2001. Doc 583. 509 Docs 584, 590. 510 Olga Campbell, 9 April 2001. Doc 585. Hugh notes that ignoring this was also to set aside the CYPF Act’s intention to accommodate cultural traditions, customs and beliefs. 511 Sacha Nepe to Maureen Reti, 10 April 2001. Doc 589. 512 Kathy Orr, psychological assessment, 9 April 2001. Doc 586.

173

was actually read and given due consideration. There are many details that are of

interest, of which some are:

• Para 4: administration of enemas is raised along with Mark being given a

hiding. The two matters are entirely separate—except presumably in the

minds of certain ‘professionals’ determined to find allegedly abnormal

activities that they might be able to produce or insinuate as evidence of

physical and sexual abuse.

• Para 5 conflates the place of safety warrant and the later ex parte custody

order, giving a misleading impression about Patricia’s uplifting as being

under the place of safety warrant relating to Mark, and also fails to note

that Mark was uplifted before the place of safety warrant was even

applied for.

• Para 7 re Dr Hilligan’s report saying that Mark could not then sit

comfortably, this contrasts with Mr McNair the day before detecting

nothing unusual over an entire morning. There is also the issue of the

non-caning bruises, raised in other evidence, but a ‘suggestion’ by

Maureen in para 8 (apparently written as challenging the medical report).

• Para 9 jumps from a reasonably factual recitation to an assumption that

‘physical abuse’ was inflicted on Mark, and had been previously. There

was no action taken by CYFS previous to 2000, so presumably it was not

seen then as serious abuse, but it is all lumped in by Ms Orr in one

history of abuse, together with a 1999 FGC about Mark. There had of

course been no determination of whether Mark had been physically

abused—that was why CYFS was supposed to be excluding Hugh until

such a determination had been made—but Ms Orr seems to know all

about it. At least it was only ‘alleged assault’ in para 10, while hitting as

a form of punishment is taken by her from the Strange interview as a

chronic feature of family life.

• Para 12 Ms Orr steps way out of line. She is supposed to be providing a

psychological assessment, not giving her ‘expert’ opinion on what

legally constitutes assault. The further sentences in this paragraph are an

outrageous twisting of all the evidence that she had allegedly read about

the events of 9 February. The talking, the final running out of options

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after all else that has been tried, the discussion with Mark etc etc become

to this psychologist evidence not of caring, not of trying to work things

out in other ways, not of judicial action, but merely of cruelty. There is

then a further non sequitur in moving from cruelty to inability to manage

Mark—well yes, that is the whole point as Maureen had run out of other

options and was desperately trying to head off Mark’s apparent journey

down the same slope as Lance had. And therein Orr contradicts the

assertion she has just made about cruelty. Desperation is not

premeditated cruelty. This paragraph is both unprofessional and illogical.

• Para 13 one thing that is striking about Ms Mechen’s account is that its

description is how Patricia ’s behaviour is described when other

professionals observe her in the company of Maureen ie guarded,

withdrawn etc. Could it be that the common factor is the ‘professionals’,

rather than Maureen, who was absent at the time of Mechen’s interview?

Is Patricia suspicious of them after her family’s history with their

interference but lack of help? One might have wondered whether the

psychologist might have considered that Patricia could have been wary

of the people like Mechen who had taken her from her home and placed

her for months in an environment she disliked.

• Paras 15 and 16 what have Dr Clements’ findings re the medical

appropriateness/effectiveness of enemas got to do with a psychological

assessment? Is not the psychological issue with those examinations the

effect on the children, especially Patricia? Orr fails to even mention this

aspect, despite it being a prominent feature of the documents she

allegedly considered.

• Para 17 the issue of the medical appropriateness surfaces again—nothing

to do with Ms Orr. Why it is inappropriate for a mother to administer

treatment to her young children? Ms Orr seems to assume that children

of that age know what is appropriate medical treatment for themselves

and then to be able and safe to administer it themselves. I wouldn’t let

my 9-year old daughter give herself cough mixture let alone an enema;

presumably I would fall foul of Ms Orr too! In any case, the evidence

she should have noticed included statements that Patricia was

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administering them to herself by that time. Is the whole thing centred on

some fixation these ‘professionals’ have with enemas particularly—

which Freud would surely say says more about them? Is there an

undercurrent here of ‘orthodoxy’ reacting against alternative health

approaches? None of this seems to have much to do with a psychological

assessment of the Reti whanau.

• Para 19 if Maureen was indeed mistaken about the assessment methods,

whose fault was that? The newcomer from outside or the professionals

operating the assessment? I note that Hugh and Olga Campbell had

apparently similarly ‘misunderstood’ the assessment method,

independently of Maureen. I also note that the dangers posed by

Maureen’s ‘maladaptive’ behaviour are not reflected in the Police reports

of attending the incident.

• Para 20 CYFS finally recognised the issue with Tania Mapu, after

leaving the children there for ten months against Maureen’s protests

from the start.

• Para 26(b) if Orr had felt at the time that Maureen’s presence had so

compromised the interviews, why did she not ask her to leave, even

temporarily? Maureen had already been advised by counsel to cooperate

if so asked. My observation regarding the ‘littleness’ of the

whacks/bruising is noted above; in my opinion, the beating was not

nearly as severe as it might have been under the circumstances—had Ms

Orr ever witnessed a caning or been a participant? What is the relevance

of the children being able to ‘see’ Maureen’s removal? They knew it was

occurring and might well have been able to hear it. Perhaps this focus

reflects a trauma that the Hauora staff did not perceive (perhaps they

were wary again in the presence of professionals, this time Hauora,

without whanau support).

• Para 26(c) Maureen is now being blamed for Brenda’s objection to

sharing her personal information with an outsider and antipathy in the

Reti whanau towards apparently useless social workers becomes a

‘culture of secrecy’ to be held over Maureen.

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• Para 26(d) clearly Orr did not believe Maureen, although Orr’s personal

lack of knowledge is hardly a definitive evaluation of the form in light of

tikanga Maori. Perhaps she should have explored the issue further with

her, but this was submitted on virtually the same day as Maureen refused

to complete the form.

• Para D 1.2 As already discussed, Ms Mechen’s report is hardly

conclusive evidence of her own conclusions and one might have

expected a more penetrating commentary on it from a clinical

psychologist. Perhaps Patricia was defensive of her family because she

perceived it and herself to be under attack from Mechen and CYFS. A

single instance (para 22) of Patricia making more mistakes on the day

before visiting her mother is hardly evidence of anything either. What

sort of mistakes? In maths, spelling or tying her shoelaces, or in social

behaviours (which would have been more relevant but not ‘mistakes’ per

se)? Could she not have been excited rather than terrified? Since she was

seeing Maureen relatively frequently now, why would there be a new

anxiety level not apparent to other schools? Could it have been linked to

something else instead, such as her newly begun menstruation? What

really is the connection between school mistakes and visiting Mum? Orr

is making a pyramid stand on its head here. This was not a healthy

functional family—that was the whole point of Maureen trying for years

to run the situation despite spousal abuse, divorce, Lance’s criminal

behaviour, Mark’s ADHD and so on, all against the background of

CYFS failure to intervene and support in any meaningful and helpful

way, or even to keep its promises to try with either Lance or these

children. Blaming it all on Maureen was Orr once more overlooking all

that Maureen and others not of CYFS had done to try to hold it together.

• Para D 1.3 this mothering role for Patricia was one entirely constructed

by Orr in this paragraph; it is nowhere else in the evidence.

• Paras D 1.4-6 Dr Newman, as I read it, had not made an alternative

diagnosis to ADHD, but had merely suggested alternative possibilities,

some of which he had tested to exclude. The rest of the stuff about foetal

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alcohol syndrome is just padding; it is not applied by Orr to Mark, but

generally adds to the negative and anti-Maureen tone of the report.

• Para D 1.7 how does Orr know Maureen did not protect the children?

The files she cites contain absolutely no information on this topic. Surely

her refusal to abort Mark indicates protection from the earliest time.

There is no reference to the miscarriages Marriott had caused; if

Maureen had not protected Mark why did he not also get miscarried from

her being abused? The implication here—left hanging but what is the

point otherwise?—is that Maureen abandoned the children to save her

own skin from Marriott, or because her parents would not whangai

Mark, which is a travesty of the actual events.

• Paras D 1.8-12 finally some psychological assessment, although resting

heavily on the SES rather than anything not already known. Para 1.9 the

failure to implement the various programmes consistently is blamed on

Maureen. How Maureen was at fault in any of this is hard to fathom,

given the actual events of the previous five years or so and the placement

of the children around the place with others. For example, thanks to

CYFS, not Maureen, Mark had had at least three changes of school in the

preceding 15 months. The earlier changes, such as attendance at

Glenburn, are all overlooked by Orr, but were temporary arrangements in

themselves and all occurred at Maureen’s initiative, the uncaring,

unprotective mother!

• Para D 2.1(a) a series of unconnected statements all prejudicial to

Maureen. The first sentence is partly true, but says nothing about why,

including the CYFS failure to support her with regard to any of the

children. The second sentence assumes that what happened to Mark was

‘abuse’. To say that Maureen showed no insight into Mark’s needs is

unbelievable given all she had done (documented in the files Orr had) to

try to have provision made precisely for those needs, including

challenging the lack of provision by CYFS. The ‘motherhood’ is entirely

a construct of Orr’s and has no support from any evidence cited even in

Orr’s own report.

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• Para 2.1(b) An unbelievable example of victim-blaming by a

professional whose very job is to help such victims. Now Maureen gets

blamed even for having an abusive husband. Assuming of course that she

did not protect the children from Marriott. The evidence appears only to

be that Lance suffered from him. What did Maureen do to mitigate the

effects of this? What of her leaving and going to a refuge? Orr knows or

acknowledges nothing about any of this yet blames Maureen anyway.

• Para 2.1(c) And whose fault is it that there have been frequent changes of

caregiver and living situation? CYFS perhaps? In any case, the reasons

for those changes even before CYFS uplifting are unexamined by Orr,

such as Glenburn. Also, does one then blame poor people for shifting to

where they can get employment, or support? Apparently so; this

apparently ipso facto makes them bad people and poor parents as well as

impoverished.

• Para 2.1(d) who said culture (presumably tikanga Maori, although she

doesn’t specify) was an excuse for abuse? Again a straw man of Orr’s

own manufacture. Maureen and Hugh were both quite clear from the

start that they did not support physical violence as a disciplinary measure

except in cases of last resort. Also, what has culture got to do with the

rest of the paragraph?

• Para 2.1(e) this is pure nonsense and the documents Orr had showed it to

be so. Maureen held Mark done to ensure that only the buttocks of a

wriggling boy were hit i.e. for his safety. The enemas were administered

as part of a health programme the whole family were participating in.

Neither of these had anything to do with ‘control’, healthy or otherwise.

The last assertion is Orr’s own opinion, which she was entitled to give

here, but which is no more than that, while the freeness, transparency

and openness of the process as applied in this case was certainly not so

apparent to someone in Maureen’s position in the circumstances, as it

may have been to Orr. It had been court-ordered and applied despite

Maureen’s lack of consent so it was not ‘free’. It was not ‘transparent’, at

least not without some safeguard that the children would not be taken

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advantage of again, such as having sympathetic adult sit in. And it was

not ‘open’, as not everyone was able to participate e.g. Hugh’s exclusion.

• Para 2.1(f) it is not at all apparent that Maureen expected the court to

give the children’s wishes ‘total weight’, but she did want someone to

listen to them. Their wishes had been ignored from the start by CYFS,

Flynn had paid them almost no attention at all and failed even to reply to

Patricia’s direct communication, while their letters and such were

ignored by the court. It is not unreasonable to expect that a process

supposedly in the children’s best interests should at least attempt to

ascertain their perspective and wishes.

• Para 2.1(g) the same might be said for others in the process!

• Para 2.1(h) again pure speculation as to what had caused the problems.

There was in any case, not a total inability to work with them on

Maureen’s part. Flynn had failed to do anything much at all to work with

either Maureen or the children and seemed solely to be set against

Maureen still without having interviewed her even by this time. CYFS

had been confrontational and unbending on their own part, let alone

misrepresenting matters and blackening Maureen and Hugh. Also, by

this time, Dawson had agreed that for some time she and Maureen had

enjoyed a better working relationship. So this was a partial and

uninformed blanket inaccuracy, not surprisingly again prejudicial to

Maureen.

• Para 2.1(k) what evidence presented since? There is none in the

documents, beyond CYFS merely saying that she had committed abuse

and the Police charging her with assault. Apparently she had not needed

to use physical discipline since and so there must have been some form

of alternative strategy in operation in all the times she had had the

children since Feb 00. Again, these are unsupported and inherently self-

contradictory allegations made against Maureen.

• Para 2.2 or Maureen could simply have been a person with no financial

or personal resources struggling to cope with a hugely difficult family

situation over many years with no support and often active opposition

from state authorities. Even paranoids have genuine enemies! Perhaps

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those supporters could have been assisting her to seek the assistance she

needed and resist the depredations of ill- intentioned agents of the state. A

professional assessment would, in my opinion, have noted this as one

possibility and then also suggested other possibilities also consistent with

the full range of evidence available.

• Para 3.1(a) Nonsense. Maureen and Hugh had both shown from the start

their full awareness of the difference. The point was that they believed

that in this one case some more drastic action was necessary. It is Ms Orr

who cannot tell the difference, apparently (not to mention Matich et al).

• Para 3.1(b) My reading of the material (and not being present at Orr’s

interviews) is that CYFS, not Mark was blamed for the dysfunction.

• Para 3.1(c) Maureen had tried for years to improve her parenting and had

even taken courses. She had spent countless hours seeking an trying to

implement numerous options for improvement of her situation along

with providing specifically for the children (surely in itself a not

unimportant aspect of parenting). What is Orr smoking?

• Para 3.1(d) on what basis does she say this? Nothing in any material

prior has suggested anything like this. Orr appears to have had an idea a

couple of sections ago and it has grown in the telling.

• Para 3.1(e) on what basis does she say this? There is no documentary

evidence supporting this idea of favouritism. As for not taking full

cognisance etc it was Maureen who had spent all that time and effort

trying to have Mark sorted out, not CYFS or anyone else. One wonders

what would have been sufficient evidence for Orr.

• Para 3.1(f) if Orr was ignorant she should not have based conclusions on

this. The documents revealed Maureen’s treatment (or is the key

‘recognised’ again?). In any case, the history was now irrelevant, except

in regard to the possible diagnosis of the historical cause of Mark’s

problems.

• Para 3.1(g) I thought Brenda was also a keeper of family secrets! Does

this woman even read what she has herself written? What are these

secrets anyway, that Mark was physically disciplined one night?

Maureen had reported it. Surely in fact the opposite is the case, that

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Maureen had poured out her problems and difficulties and that these

were subsequently held against her rather than taken as opportunities to

help the family. Again the ‘secrecy’ thing seems to have been a bright

idea of Orr’s that she played on repeatedly.

• Para 3.1(h) this is so stupidly wrong it needs no further comment.

• Para 3.1(i) the shift in family support is that Tania is not willing/able to

take the children back. But Brenda has taken Patricia and Tania has

Mark, so what exactly is that shift? Do they not now want the children to

return to Maureen? Didn’t Brenda allegedly keep secrets to protect

Maureen? What is Orr’s evidence?

• Para 3.1(j) this again is completely wrong on the facts and irrelevant to

the children’s situation.

• Para 3.1(k) Maureen did not ‘live with’ Hugh. Although Orr knows

nothing of him, Hugh is immediately cast as a malign influence preying

on the vulnerable and isolated.

• Para 3.2 many of these statements contradict all the negative rubbish she

has just heaped on Maureen e.g. re seeking assistance, support from

others, and the general picture such points create.

• Para 4.2 the safety issues were precisely those issues that were moot, not

already resolved in Ms Orr’s favour. The individual development

question exists solely in Orr’s previous paragraphs.

• Para 4.3 the fact that both children are unanimous against Orr’s

theorising is taken by her as scapegoating of Mark by Maureen. Perhaps

the children were simply correct. As to the blame, the present situation

had developed from a theft by Mark, lied about by him, and committed

in the context of increasingly very antisocial behaviours of many sorts.

Maybe he did have something to do with it and it wasn’t all a figment of

some psychosis of Maureen’s?

• Paras 4.4-7 perhaps the most helpful response would have been for

professional assistance to be properly and consistently given to the

whanau to address these problems. Orr seems to have one tune only, to

separate for the sake of ‘safety’.

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• Para 5.1(a) what does she know about what Hugh’s insights are? She has

not spoken with him yet presumes to diagnose and prescribe for him.

Even if anger management were an issue for Maureen historically, on

what basis does she apply it to Hugh; the single episode he was involved

in was done cold-bloodedly with premeditation and therefore cruelly, not

on the basis of uncontrolled rage. One might also say that such

professional assistance as she recommends is pretty much what Maureen

had been asking CYFS and others for over several years, but without any

success, only blame—but she should know that if she had actually read

the documentation.

• Para 5.1(b) this of course cuts both ways. The system needs to

demonstrate to Maureen, especially after its years of history of dealing

with her, that it is indeed not totally against her, or at least is not

completely indifferent to the feelings and needs of herself and her

children. Such professionals tend to assume that because they are acting

within their legal powers (assuming they are) and are trained in caring

professions, that they are therefore completely neutral and objective.

This of course is simply not true and unwittingly the lack of professional

rigour of Ms Orr’s own report could have done nothing to give Maureen

any confidence in ‘the system’ such as Ms Orr expects here as of right.

• Para 5.1(c) maybe so. Why did Ms Orr no t do it herself? She records no

attempt to try and having been refused. Again the over-ready assumption

that ‘abuse’ has indeed been perpetrated; not even ‘alleged abuse’ to give

Orr’s work a veneer of objectivity.

• Para 5.1(d) why? There is no evidence tha t Lance’s presence ever led to

abusive adult behaviour in the past. The sole incident previously referred

to, i.e. Maureen’s self-confessed violence towards Mark, took place after

Lance was no longer part of the family living at home. Or is she

suggesting David Marriott’s ghost would return?

• Paras 5.1(e- i) pretty much what Maureen had been seeking for ages,

frequently thwarted by CYFS actions or inertia. Orr seems again blind to

any of Maureen’s positive parenting actions.

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All in all, this report is remarkable for its failings, despite Flynn’s previous

endorsement of Kathy Orr and her alleged experience and competence. Some of

those, apparent even to the lay reader are:

• a lack of objectivity. Tendentious and emotive language is used

unnecessarily and inappropriately for a professional report e.g. Hugh,

whom she never met other than to greet, becomes a ‘perpetrator of

abuse’ who needs anger management counselling;

• selective use of the background material with the net effect of portraying

Maureen in a very negative light. Obvious examples are the attempts

Maureen had made over many years for much the same assistance as Orr

now recommended, and putting the entire responsibility for the

instability in the children’s lives on Maureen when it had often been such

assistance or even CYFS intervention that had led to that instability;

• acceptance of any CYFS material at face value, and apparently nothing

from Maureen’s side, including other such as Brenda, despite such

prominence having been given in the material before her to challenging

the accuracy and effects of precisely those CYFS materials. An objective

reviewer should surely at least have noted other possibilities;

• straying well away from her brief and gratuitously giving her opinion

about matters that did not concern her and in which she was not an

expert. The definition of abuse is an obvious example, especially since

she had no first-hand knowledge;

• a marked tendency to build pyramids standing on their heads, leaping to

enormous conclusions on the scantiest of evidence e.g. Patricia’s

reticence in the Mechen interview starts as part of the family culture of

secrecy, then is probable evidence of abuse and continues on to become

taken for granted that she is acting as mother to Mark and needs

counselling to remove this burden from her. A single alternative

possibility, such as that Patricia was suspicious of being asked very

personal questions by yet another unknown adult from the same

organisation that had ripped her family apart and punished her

undeservedly for months, utterly destroys this house of cards. What

possible reason could Patricia have had for being anything but reticent

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with Mechen (and we don’t know anything about Mechen’s personality

or ‘chemistry’ either; training alone isn’t everything, as Orr should

know).

In fact, when Patricia was interviewed in December 2002 by an independent

psychologist, Hans Laven, he too noted Patricia’s ‘flattened emotional expression’

and such, and without Maureen being present at the interview. 513 However, instead of

leaping to the conclusion that this proved culture of secrecy within the family and

crushing psychological and emotional pressure being exerted on Patricia by Maureen,

he said that she was—not surprisingly—clinically depressed to a degree. Furthermore,

this depression resulted from post traumatic stress disorder generated by the trauma of

having been wrenched against her will from her mother, being placed in the Mapu

household where she was physically and emotionally miserable, and by being kept in

the dark for month after month while things were simply done to her and decided for

her by anonymous adults. Furthermore, Laven noted that she was intelligent and

‘showed some mature insights’, another point that rather suggests Patricia was well

aware of an hostile too CYFS and their associated assessors.

The issue of scapegoating of Mark by Maureen and Hugh was further

undermined by Patricia later talking to Laven. She told him that she had blamed and

hated Mark ‘at first’, i.e. not after extensive brainwashing by the adults. Over two

years later, she herself recognised that she was still ambivalent about him and partly

still blamed and hated him for causing her to be uplifted, an ambivalence manifested

in her refusal to attend the same school as he did.514

An alternative interview of Mark was arranged, by Hugh and Maureen, to

reinvestigate Mark’s initial evidence of what had happened to him. This interview was

conducted by Tony Palmer, a registered counsellor and member of the CYFS Piako

Resource Panel, rather than the Paeroa one, and witnessed by another counsellor from

the Piako Community Whanau Trust, Morrinsville.515 I note, in light of Orr’s

comments about Maureen controlling what the kids said, that apparently neither she or

Hugh were present during the interview until she was invited in towards the end.

Some key points:

513 Hans Laven, psychologist’s report, 3 December 2002. Doc 995. 514 Hans Laven, psychologist’s report, 3 December 2002. Doc 995. 515 Interview transcript, 17 April 2001. Doc 591.

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Hugh smacked him ‘on the bottom’

Mum smacked him ‘on the bottom’

‘And I told big lies to CYPFA [sic].

What were the big lies?

That my Dad smacked my fingers, I told them that they hit me on the legs.

With his hand?

With a Bamboo Stick, so long.

Did you tell CYPF that?

Yes.

Did you tell the police?

No they took the Picture.

Did you tell any other lies?

That they beat me up every day (that was a big lie)….’

Also he explained that he told only half the truth to CYFS, the rest was ‘big lies’, but

he could not now remember everything he had said. He was insistent that both he and

Patricia wanted to return home.

On 20 April, Maureen filed a complaint against Flynn as counsel for Patricia,

arguing that Flynn had not been acting in Patricia’s interests, but constantly siding

with CYFS, and that she had a conflict of interest.516 She also complained of the

impression created by CYFS that Maureen had abandoned her children at Tamahere,

when in truth she had been removed by the Police, and asked to be allowed to see

Flynn’s report and Tamahere’s report which pretty much everyone but she knew and

had been allowed to see. Apparently nothing was ever done to move on such

complaints or requests. On 23 April another letter from Patricia was produced and

later handed by Hugh to Judge Somerville, but again there was no response to any

points or wishes raised in it.517

516 Doc 593. 517 Doc 594.

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The Calvert Reports and Ongoing Negotiations May-July 2000

Dr Sarah Calvert interviewed Mark at CYFS Paeroa on 1 May. It is not clear

who asked for her intervention or why, but from her report it would seem that CYFS

did in order for her to assess Mark’s suitability as a witness in court. Certainly her

report is directed to the best mode for Mark giving evidence. Once more, Maureen

was not consulted or informed about this interview until some time after the fact. She

stated that Mark was ‘really scared’ about meeting Maureen and Hugh and that they

would give him a hiding and he would run away if he saw them, as if he had not done

so since 10 February 2000. She stated that he believed they would harm him. This is

incomprehensible given the great amount of unsupervised access he had had over the

past year—was she referring (without saying so) to comments drawn from those every

first interviews? Anyway, it is again a very prejudicial few comments and raises the

question of what sort of interview she conducted. She later said that it had been for 45

minutes, whereas the Open Homes social worker said it was for only 3 minutes. She

advised the court that Mark should be able to give evidence via closed circuit TV.

Hugh commented to barrister Gerald McArthur that it failed to display the usual

actual questions and answers, that it did not state who requested it, that under s 179(4)

of the Act Mark should have had another person present, and that s 186(4) stated that

in culturally appropriate situations such as this a maatua whangai should have

attended.518 He suggested that McArthur object to the report.

The Waikato paediatrician, Dr Newman, saw Mark again on 8 May. 519 He noted

that the EEG and Fragile X tests that he wanted done last year had still not

happened—another failure by CYFS to provide for Mark’s needs, and this one not

related at all to the alternative treatments they seem to have abhorred so much.

The following day, Dr Newman responded to a specific approach from Gerald

McArthur, Hugh’s barrister, with a description of ADHD, accepting that diagnosis

and not challenging it as Orr’s report states.520 He was also apparently sent the Police

photographs of Mark and concluded that they had been made by ‘a long thin object

such as a cane, a length of hose or similar’. This conflicts with the ‘broom handle’

statement of Dr Hilligan and various others, but agrees with the statements regarding

518 Hugh Smith to Gerald McArthur, 19 May 2001. Doc 607. 519 Dr Newman to Dr Carroll, 8 May 2001. Doc 600. 520 Dr Newman to Gerald McArthur, 9 May 2001. Doc 601.

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bamboo. Two statements stepped beyond his brief, though. One was that since the

marks were still visible on the following day ‘excessive force has been used and is not

consistent with “reasonable force”’. The second was: ‘I have no problem in stating

that this represents physical abuse of the child.’ Surely these are legal and moral

questions, not medical, and such characterisations depend on detailed knowledge of

context and all the other elements that make up a criminal action of assault or abuse.

Referring the case to CYFS ‘for investigation and appropriate action’ might well be

the course of action to take, but an apparent need for such referral is not in itself

conclusive evidence of the assault. Hugh’s notes also state that Dr Newman then sent

this opinion, including these comments, to CYFS without the permission of either the

lawyer who had sought it or of those individuals affected by it—surely a breach of

legal privilege.

Jill Dawson then applied for s 101 custody orders for both children for another

six months.521 She began with a highly selective and prejudicial brief summary of the

family history and the current situation. In none of this was Maureen given any credit

for the actions she had undertaken on behalf of the family or children. The importance

of Orr’s assessment then became apparent as there were new plans proposed that were

based on and borrowed heavily from it. There were also curious elements, such as in

the report on the review of the previous plan, where it was stated that there had been

no reports of Mark being hit. This might have been specifically hitting by Maureen, or

by his present caregivers the Kakes, but in regard to his time at Tania’s there were

numerous reports from Maureen and other sources of Mark being hit there. Also, it

stated that there had not been a FGC held in respect of the matter that formed the

ground of the application; this was true if all that was referred to was the s 135

review, but false if referring to broader issue of the children and their return to

Maureen which was surely the ‘ground’ matter—what there had not been was a FGC

that agreed with CYFS and their handling of the matter. Some matters were

prejudging and tendentious, for example the objective of Maureen and Hugh

understanding the difference between abuse and reasonable discipline (which

arguably they had demonstrated but CYFS themselves had not, especially when the

criminal case had not been heard) and for them to complete ‘agreed

521 Docs 604 and 608.

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therapy/counselling’ and anger management when especially in Hugh’s case there had

been no evidence that he needed any ‘attitude adjustment’.

Apparently, this application was not passed on to Maureen. It was collected by

hand 23 days later on 11 June, when by chance they happened to be at the court to get

summons forms for the criminal court. Should it have been passed on? Who should

have passed it on, CYFS at time of filing, or the court after filing?

More harassment of Maureen from CYFS occurred when Dawson sent her a

formal letter complaining that their Hamilton office had told them a children’s

programme was being delivered from the 5th Dimension address.522 She threatened

that ‘It would be unfortunate if other people also living on the property jeopardised

their weekend visits.’ She demanded to know about the programme and what sorts of

people Patricia and Mark would come into contact with during their visits. As the

head of the Trust, Hugh replied at length on Maureen’s behalf, expressing outrage at

the impugning of the Trust and the unwarranted threats issued against Maureen where

she was most vulnerable.523 The Hamilton information was completely false and

Dawson could have found that out for herself without such bullying simply by lifting

the phone and asking, but instead had chosen to inflict emotional harm on Maureen

and plant the seed of CYFS’s imaginary fears in others. He contrasted these false fears

with the CYFS lack of concern for the children otherwise, including their

abandonment in Thames after Tamahere, and with the longstanding unsupervised

access arrangements where there had been no problem. Dawson replied on 19 June

that a social worker in Hamilton had been advised that ‘a healing group for naughty

children’ was being started at the 5th Dimension address and that she had forwarded

this information to Maureen ‘to check its accuracy and to ensure the safety of Mark

and Patricia’.524 She advised him that his letter had been placed on the children’s file,

but made no comment concerning his other allegations and suggestions.

A judicial conference was held on 21 May before Judge Somerville. Page

appeared for CYFS but again Flynn was not there to represent the children. The judge

agreed to consider a memorandum for a defence critique to be sought of Orr’s report

and matters were deferred until 18 June.525 Throughout this period, Hugh was still a

party to these proceedings in his own right and was representing himself, but was 522 Jill Dawson to Maureen Reti, 18 May 2001. Doc 605. 523 Hugh Smith to Jill Dawson, 18 May 2001. Doc 606. 524 Jill Dawson to Hugh Smith, 19 June 2001. Doc 662. 525 Docs 610, 612, 612A.

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being denied access to the materials supplied to layers, such as Flynn’s report and

Wirihana’s Tamahere report.

On the matter of the (non)availability of Orr’s s 178 report, Butterworths Online

Family Law Commentary notes that:

• The consent of the parent, guardian, caregiver or other person, and that

lack of consent deprives the court of any jurisdiction to order such

assessments, although the court may also draw inferences from failure to

give consent.

• Judge Keane has stressed the need for assessors to distinguish explicitly

and systematically between what they observe and the inferences they

draw.

• S 191 required that that copies of the s 178 report be provided to any

person entitled to appear and be heard on the proceedings to which the

report relates, and to counsel representing that person, and to any other

person the court considers has a proper interest in receiving a copy.

In regard to the consent, Maureen withheld it, but CYFS were legally the

children’s guardian. The Keane distinction was not all that clearly drawn in Orr’s

report—as with other documents in evidence in this whole matter. It appears from s

191 that Maureen should have been provided with a copy, along with that for her

counsel, and that a case could also be made for Hugh as someone entitled to appear

and be heard as well as someone to whom the court could extend its discretion.

On 30 May, a meeting at Parawai School discussed Mark’s learning needs.526

His behaviour had been becoming more erratic on Monday mornings (when he was

being delivered straight to school following his weekends with Maureen) and on

mornings when his aide was not present. In addition to the school changes, Maureen

offered to have a break for several weeks in the home visits and the social workers

suggested he be brought back to the Kakes on Sunday night rather than directly to

school. No discussion was reported as to why his behaviour was more disrup ted at

those times (nb which were not all associated with Maureen).

Matenga and Associates’ memorandum requested the critique on the basis inter

alia that Orr’s report was subjective and biased against Maureen, that the investigative

process was flawed, that Orr did not have an overall context for Patricia’s life, and

526 Doc 644.

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that given the far-reaching ramifications of the report it should be subjected to the

closest scrutiny. 527 Flynn did not oppose the request directly, but submitted that any

critique be done according to certain standardised guidelines she then set out.528 Page

for CYFS did oppose, but also recommended similar guidelines if a critique were

ordered.529

As the time of the criminal trial moved closer, John Henwood, CYFS Paeroa

Supervisor, supported by CYFS solicitor Tony Page, moved to make further attacks

on Maureen personally. Picking up on the brief observation in the Orr report about

Maureen possibly having a personality disorder, he had Dawson review the file for

sending to Dr Calvert for review with a view to furthering that approach. 530 On Page’s

advice, he had the Orr report removed as Maureen was seeking a critique of it.

On the other hand, a number of small briefs were collected in support of

Maureen, setting out how difficult Mark was and how restrained in fact Maureen had

been with him over time, while the discipline was necessary. 531

The criminal proceedings set down to begin on 14 June were adjourned on 12

June to 3 September 2001, further delaying resolution of matters regarding CYFS and

the alleged abuse/assault.

Dr Sarah Calvert completed a file review for John Henwood of CYFS on 14

June and provided him with an opinion on Maureen’s behaviour.532 She provided a

reasonably extensive historical outline, if in brief notes and repeating some

misleading or wrong items, such as the ‘non-agreement’ of the May 2000 FGC.

• She concluded that Maureen would be best considered within a

framework of Personality Disorders and appeared to recommend that

Maureen should receive a full assessment and that sources external to her

would be important.

• She also appeared to blame Mark’s behavioural, emotional and cognitive

problems on his being a ‘victim of severe neglect and abuse throughout

his life’, rather than ADHD.

527 Sacha Nepe to Registrar, 28 May 2001. Doc 616. 528 Cathy Flynn, memorandum, nd. Doc 615. 529 Anthony Page, submission,8 June 2001. Doc 634. 530 John Henwood to Sarah Calvert, 6 June 2001. Doc 626. 531 Docs 627, 628, 628A, 629. 532 Sarah Calvert to John Henwood, 14 June 2001. Doc 649.

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• She focused on problematic behaviour in the ‘sexua l enacting spectrum’

as being the most persisting type of behaviour, rather than behaviours

relating to ADHD, and again linked this to experiencing severe physical

punishment.

• She stated that worse behaviour consistently following access to

Maureen was inconsistent with ADHD. This surely is hard to pick up

from the file and as shown by the 30 May meeting his misbehaviour was

in unstructured situations each morning, not just on returning from

Maureen. Could it still not simply have been symptomatic of distress at

being yet again separated from Mum?

• She stated that Mark has not lied at school or in care. Surely this is not

the case, in the various school letters on file, which in any case remark

on worse behaviours.

• She cited unnamed ‘independent professionals’ as having ‘observed that

Mark’s behaviour is entirely predictable given his life experiences’, that

is presumably implying that there was no outside syndrome to blame and

that it all came back to Maureen as an unbalanced, personality disordered

sad case whose presence only disturbed Mark further.

At this time and immediately prior to the criminal court judicial conference on

19 June 2001, counsel for the children together with Dawson suspended Maureen’s

access to Mark pending the criminal court hearing (presumably the 3 September one).

This was done, they said, because of her ‘continual discussion of adult matters with

the child and involvement of him in the Court proceedings’.533 Just exactly how Flynn

knew of such ‘continual discussion’ is unclear; she had certainly not spoken to any of

those allegedly involved, such as Maureen, Hugh and the children. At best it is an

inference—stated as bare fact—from the Palmer interview, the letters from the

children, and events such as the attempts to have the children brought to a couple of

court hearings. The Crown were also seeking a variation to Maureen and Hugh’s bail

conditions to stop them having any contact with Mark, apparently as a result of it

becoming known that they had organised the interview with Tony Palmer, an exercise

that was viewed as tampering with Crown evidence.

533 Cathy Flynn to Registrar, 18 June 2001. Doc 653.

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A Family Court judicial conference on 18 June had Judge Neal adjourning

matters yet again as Maureen’s counsel was a stand- in who had not been briefed.534

Jill Dawson submitted an affidavit opposing a defence psychologist interviewing

Mark.535 She listed many professionals who had interviewed Mark, beginning with a

speech therapist in 1995—what relevance most of these are is hard to fathom, but

certainly there was no indication to the court that Maureen rather than CYFS was

responsible for seeking this assistance. She stated that CYFS opposed a further

interview because Maureen and Hugh scapegoated Mark, blaming him for the two

children being in care, such that he viewed the criminal proceedings as being a result

of his stealing—presumably as opposed to their response to his stealing/lying/etc. She

also pointed out that she and the court had advised Maureen and Hugh not to discuss

proceedings in either court with Mark. This affidavit was clearly prepared with the

intention of directly assisting the Crown prosecutor in the criminal case. It had little

directly to do with the Family Court matters and care and protection issues that are

CYFS core business and although some information was sought by the court, this

appears to go beyond that into anti-Maureen opinion etc. This leads one to wonder

about the nature of CYFS work, is it solely to look after the children, or does it see its

task also to pursue criminal matters? Given the access and other matters that had been

or were being dealt with through the Family Court, what did CYFS think it was doing

so deeply involved with the criminal prosecution? How does its statutory role fit with

its actions at this point, and more generally throughout the Marriott saga?

Maureen countered this of Dawson’s with her own affidavit, pointing out that

the entire lists were for services sought out by herself on Mark’s behalf, that Judge

Aubin had already ruled that breaking access would be against Mark’s best

developmental interests, and that the tenor of Dawson’s evidence was, as usual for

CYFS, to attempt to discredit her as a mother, and that neither she nor Hugh had ever

blamed Mark for the enforced separation. 536

The District Court and Bail Variation

534 Minute, 18 June 2001. Doc 655. 535 Jill Dawson, affidavit, 18 June 2001. Doc 660. 536 Maureen Reti, affidavit, 21 June 2001. Doc 667.

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The Crown Solicitor on 18 June moved to amend the indictments against

Maureen and Hugh to one charge each of assault using a bamboo stick as a weapon.

Simultaneously, using Jill Dawson’s affidavit, he sought the variation of bail to

preserve the integrity of Crown evidence.537 Maureen opposed changing the

indictment from assault with a bamboo stick as weapon gave entirely the wrong

impression, while the Police had never seen or inquired about the stick used.538 She

opposed the use of the Strange video as it was unsatisfactory and prejudicial in many

ways. She opposed admission of Sarah Calvert’s report about the mode of evidence as

it was misleading and incomplete. She opposed the Orr report as being subject to

critique in the Family Court. She gave items of detail from previous events and

surrounding the Hauora report that had never been addressed or even made available

to them to comment on or correct.

On 22 June 2001, the District Court varied the bail conditions not to ban all

contact as the Crown supported by CYFS sought, but to prohibit any discussion of the

trial with Mark or to use a third person to do so.539 Nevertheless Dawson had

predetermined that access to Mark was suspended but without any explanation to

Mark or his caregivers, and Maureen only knew after arriving home from the court, so

Mark was left upset and in the dark—bearing in mind of course that not only was a he

a small boy but that his condition likely made him even more sensitive to feeling

abandoned. His caregivers, expecting to be without him, probably were in the dark

too, until the Open Homes worker contacted them at Maureen’s instigation. It was

also Maureen who conveyed to Mark’s caregiver Stephen Kake the new bail

conditions and then took Mark to see her uncle Eru Wetere in Thames Hospital. 540

In the presence of Maureen’s uncle Mark apparently asked the inevitable question about why she didn’t pick him up on Friday night, but as she is forbidden to explain to the boy, her heart is breaking up at seeing the resulting confusion/frustration in the boy because adults won’t explain to him what is going on. Any reasonable Court, I would think, must accept that this is emotional and mental cruelty inflicted by CYFS and is avoidable, and is not healthy for the boy’s development, and is not in the best interests of the child. In advising Dawson of the court’s bail variation, Crown prosecutor Hollister-

Jones told her that Judge Thomas had only refused to grant the Crown’s request 537 Doc 664. 538 Maureen Reti, affidavit, 21 June 2001. Doc 667. 539 Doc 676. 540 Hugh Smith to Gerald McArthur, 25 June 2001. Doc 678.

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because the harm had already been done. Hugh states that he was thereby misleading

her as the judge’s reason had been his reluctance to interfere with such a longstanding

access arrangement and refusal to get caught up in Bill of Rights arguments. Hollister-

Jones then took the opportunity of pointing out to her that the order ‘does not preclude

you from independently making decisions about access based upon the material you

have before you….’541 While that was no doubt true legally, in context this sounds

like a sore loser determined to have his way by other means. Dawson implemented

this despite the week before having only mentioned restrictions until the court made

its order, which it had now done.542 She justified the restriction on several bases:

• Calvert’s report saying that Mark had reported being scared of Maureen

and Hugh and wanting to run away from them. This has been

commented on above.

• Mark’s poor behaviour at school on returning from Maureen’s care. The

obvious alternative view that he was upset at leaving her was given no

consideration and the contradictory evidence from the school meeting of

the same date from which Dawson was absent543 was not considered

either.

• Maureen and Dawson had clashed at a recent meeting as to whether

Mark should be held accountable for his actions. Dawson thought not

and considered that Maureen’s opposing view was merely evidence that

Maureen’s ‘lack of understanding of his developmental delays’.

• The issue of discussing the criminal case with Mark was revisited and

Dawson rejected Maureen’s statement that she would answer questions

put to her by Mark. Clearly, quite apart from the issue of influencing

Crown evidence, Maureen believed Mark had a right to know what was

being done to him, whereas Dawson—the champion of his care,

protection and rights—did not, the social worker had not after all even

been letting him know why things had been happening or not happening

for him.

• CYFS had ‘carefully considered’ the comments made in the Orr report.

541 Hollister-Jones to Dawson, 25 June 2001. Doc 680. 542 Jill Dawson to Maureen Reti, 27 June 2001. Doc 683. 543 Doc 681.

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• CYFS had ‘discussed matters fully’ with Flynn. Quite apart from the

conflict of interest issue, one wonders how Flynn was thought to have a

handle on what was best for the children having still maintained her

complete indifference to them and lack of contact.

CYFS would review the suspension of unsupervised access once the criminal

matters had been finalised, but they were offering one hour per week of supervised

access at the Open Homes office in Paeroa, beginning on Friday at 3pm. 544 CYFS had

also unilaterally made arrangements for Mark to be sent to a camp during the school

holidays, together with a week at alternate Open Home caregivers. There had been no

consultation with Maureen or Mark about any such arrangements; one wonders

whether Open Homes or the Kakes had been consulted either.

Not surprisingly, Maureen’s reaction to this in light of the court ruling on the

bail variation, and the earlier Family Court rulings on access, was that CYFS were

‘taking the law into their own hands’ and were ‘out of control’. In a despairing fax to

her Family Court counsel, Maureen reiterated the various ways in which Dawson had

twisted the truth of events and misportrayed the discussions held over Mark, together

with the concessions and suggestions Maureen had made. She also said that although

she had no intention of violating her bail conditions, she wanted Mark to be told the

truth as to why after 18 months of unsupervised weekend access he had been cut to 1

hour supervised.

Flynn then asked the Family Court to allow Orr to base her report to the District

Court on the report she had already submitted to the Family Court.545 This would

allow Orr to proceed without re- interviewing Mark, which was to be avoided, but it

was this Orr report that Maureen and Hugh had already argued was so prejudicial that

it needed to be critiqued—yet here Flynn wanted its substance to be repackaged prior

to that critique and used against them in criminal proceedings.

As a side issue to the District Court judicial conference, the personal behaviour

of Crown Prosecutor Hollister-Jones revealed the extent of his personal feelings

544 There is nothing in the documentation about the convenience of some of these times. It seems unlikely that a visit could start at 3pm given usual school closing times; would it then be for one hour beginning as soon as possible after 3pm as he could be brought there, or would the clock start at 3pm regardless of when he was actually brought there? An office seems a soulless place to give access, especially since there was no physical danger. Also access times on a weekday afternoon would seem to be inconvenient to Maureen had she been seeking any employment. This particular time was inconvenient (deliberately?) because at 4:30pm Maureen could have brought Patricia too. 545 Cathy Flynn to Registrar, 29 June 2001. Doc 684.

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against Hugh and Maureen. During a break in proceedings, but after the court had

declined Hollister-Jones’s argument that Maureen and Hugh be forbidden to have

further contact with Mark, Hollister-Jones threatened Hugh with arrest should he ever

take Mark to be interviewed by a counsellor again. Hugh’s barrister, Gerald

McArthur, intervened, sending Hugh out of the courtroom and instructing Hollister-

Jones to speak to McArthur only. 546 The present writer is uncertain of the significance

of this incident, beyond its obvious value as evidence of the dealings with Maureen

and Hugh becoming a personality-based vendetta. McArthur pointed out that the

reference was to the Palmer interview which had only occurred after the Crown

(Hollister-Jones) had refused to allow McArthur to speak to Det Macky in regard to

whether Mark had admitted lying in the initial interviews, and that the Crown would

similarly not allow either himself or Maureen and Hugh to speak to Mark. Whereupon

they had arranged for the independent interviewer and McArthur had forwarded the

statement to Hollister-Jones.

There was a mix-up over Patricia returning to Maureen over the school holidays

in early July. Brenda had to go to hospital and asked Maureen to take Patricia early,

advising CYFS of this. Maureen then assumed she would have her for the whole

holidays, as agreed by all parties. Dawson, though, unilaterally decided that she was

to be returned to Maramarua on the previous Thursday, so as to giver her time to settle

back into the family from which she had been separated for only a fortnight. In

another example of carelessness on important fine print, she wrote in one

communication that Patricia was to be returned on Thursday 9 July, the start of the

second period for reimbursement, and in another Thursday 12 July, the actual date of

the Thursday. 547 For present purposes, the important point is not so much that

carelessness which would have confused all involved at the time, but the apparent

point that although it had been agreed that Maureen could have Patricia for the whole

holidays, Dawson instructed without consulting Maureen that she was to be returned 4

days early. The excuse given was so she could settle into that family, which seems

hardly credible, but it seems more likely that since Maureen had received her a little

early, she was being allowed the bare fortnight in total, adjusted according to

Patricia’s early arrival. Although for once Maureen is not threatened with dire

546 Gerald McArthur, affidavit, 2 July 2002. Doc 965. 547 Docs 686 to 690.

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consequences for having breached CYFS parameters, this seems entirely mean

spirited and unnecessary.

On 9 July Maureen’s new counsel objected to the videotape of the Strange

interview with Mark on the basis that it breached Reg 5(c) of the Evidence

(Videotaping of Child Complaints) Regulations 1990, particularly in regard to the

requirements regarding the promise to tell the truth. 548 He also objected to numerous

sections of both that interview and the Police interview of Maureen, often on the basis

that the questioning was speculative and/or prejudicial. These passages included the

mentions of blood coming out of Mark’s bottom as they were irrelevant to the

offences as charged as well as being prejudicial. Maureen and Hugh also continued to

make the videotape a focus of their attempts to make progress in the Family Court,

pointing out that (now they had seen and analysed it) the interview showed signs of

Mark’s ADHD problem, the interviewer not understanding Mark’s indistinct speech,

the places where Mark drifted off to lies or interpolation of the violence he was now

suffering in his new CFYS-provided foster home at Tania Mapu’s.549 His detailed

submissions on all of these points were filed on 10 August.550

Kathy Orr submitted her report to the court on 10 July on the mode for Mark to

give evidence.551 Not surprisingly given her previous report, she made considerable

emphasis on the need to keep Maureen away from Mark to stop her influencing his

answers. Of importance to the CYFS/Crown reliance on the Strange interview,

though, and not really mentioned in her main report, were a direct recognition that

Mark had ADHD, Mark’s difficulties in answering an interviewer’s questions,

especially if they were of complex construction, the difficulty in understanding

Mark’s indistinct speech, and the difficulty of keeping Mark on task.

On 21 July 2001, CYFS Paeroa restructured the caseloads being managed by its

workers and Jill Dawson was replaced by Tony Spicer as the social worker assigned

to Mark and Patricia.552

Sacha Nepe applied to the Family Court for a discharge of the custody order

relating to Patricia, to be heard at a judicial conference on 24 July. Maureen also

applied for an access order to get the court to override the restrictions on her access to

548 Matthew Goodwin to Greg Hollister-Jones, 9 July 2001. Doc 691. 549 E.g. docs 695, 702. 550 Doc 730. 551 Kathy Orr to court, 10 July 2001. Doc 692. 552 John Henwood to Maureen Reti and Hugh Smith, 21 July 2001. Doc 700.

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Mark imposed by Dawson in consultation with Flynn on 22 June. In the event, Nepe

had to instruct Tauranga counsel, Jolene Patuawa, to appear on her behalf. The judge

approved the critique of the Orr report and CYFS and Flynn sought a couple of

alterations to Nepe’s brief for the critiquer.553 At this time, the judge concluded that

Hugh’s separate presence in the Family Court proceedings merely ‘muddied the

waters’ and it was agreed that Hugh’s future status be that of support person for

Maureen and ordered that he be kept up to date with all reports and documents

through Maureen’s counsel. The judge left open for a future hearing the question of

the letter that was intended for the Family Court having been produced in the criminal

proceedings. It was held that Patricia’s issues, although largely separate, were not

sufficiently divorced from Mark’s to require that they be dealt with independently,

and therefore they would be dealt with at the same time. On the access issue, a

separate hearing was scheduled for 15 August.554

Following the conference, new social worker Tony Spicer allowed an

adjustment of the access time and venue so that Patricia and Mark could be together,

under the supervision of Open Homes.555 This was repeated on 10 August.556 It may

be noted that these variations were approved by Spicer only on the day before the

access, cutting things unduly fine one might think for a regular situation.

Further evidence of ‘cross-pollination’ between CYFS operations including the

Family Court and the Crown criminal prosecution is Doc 731, where prosecutor

Hollister-Jones supplied CYFS solicitor Page with an affidavit from Maureen filed in

the trial, with a covering note that he had ‘no difficulty with you using [it] in the

Family Court’.557

On 13 August, this material was used as part of Tony Spicer’s affidavit opposing

Maureen’s application for an access order.558 He recited the ambiguous evidence of

Mark’s being unsettled after access times, once more as if it were clearcut. He went

through the issue of discussions with Mark about the criminal case, although that had

already been dealt with in the bail variation to which Maureen had willingly agreed

and completely complied—he effectively stated that she had not complied. Orr’s

report, still to be critiqued by mutual consent, was wheeled out without that caveat. 553 A jointly agreed brief was submitted to the court on 6 August 2001. Doc 728. 554 Jolene Patuawa to Sacha Nepe, 26 July 2001. Doc 717. 555 Tony Spicer to Maureen Reti, 26 July 2001. Doc 718. 556 Tony Spicer to Maureen Reti, 9 August 2001. Doc 729. 557 Hollister-Jones to Page, 10 August 2001. Doc 731. 558 Tony Spicer, affidavit, 13 August 2001. Doc 732.

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He objected to Maureen living at a site where the possibility was being investigated of

youth development programmes being offered. He stated that access to Mark would

be reviewed on an ongoing basis, but clearly had no intention of doing so while the

criminal case was proceeding. Commenting on this attitude in her application for

additional legal aid, Maureen’s counsel observed that given the reason for the bail

variation and Maureen’s agreement and compliance, ‘it therefore appear to be a bit

onerous on the part of CYPS that they are requesting that supervised access for an

hour a week continues and they will not allow any further access unless our client

applies through the Court’.559

Not only Spicer, but also Jill Dawson filed an affidavit both opposing Maureen’s

application and again seeking a s 101 custody order in respect of Patricia.560 She

rehearsed a number of the points of conflict between herself and Maureen, but did not

actually state openly why she did restrict access in June 2001. She said in para 10 that

the discussion of criminal/adult matters with him was ‘one of my reasons’ and that the

criminal case had ‘little to do’ with her decision, which was itself ‘not a prediction of

a guilty finding’. However, she never said directly why she had then imposed it,

merely referring to her letter of 27 June, which did indeed place a major emphasis on

the discussion of adult and criminal matters with Mark. Interestingly, she was clearly

dismissive of Patricia’s attempts to be heard eg para 9(a) as being but Maureen’s

voice rechannelled. Apparently, though, she had never actually sought Patricia ’s

views and wishes and of course neither had Flynn. In support of the application

concerning Patricia, Dawson then attached the documentation relating to the

Tamahere assessment and proceeded to place much weight on it, although this

material was privileged to the Family Court and Maureen had been denied access to

it—CYFS not only had it but was using it out of the blue as a weapon against her.

Certainly the Dawson summary of Tamahere and subsequent events is both

tendentious and not necessarily in accordance with the documents as discussed above.

She included her own opinion that Maureen ‘attempted to use and manipulate Hauora

Waikato for her own advantage as it related to her pending Court case’—echoing the

uninformed opinion of Wirihana in the unreleased Tamahere report. Orr’s still

uncritiqued report was again relied on, including her requiring the anger management

and psychological assessment for Hugh. She also challenged various other points of

559 Sacha Nepe to LSA, 14 August 2001. Doc 733A. 560 Jill Dawson, affidavit, 14 August 2001. Doc 734.

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fact or opinion, although some of her self-exculpatory cha llenges were a considerable

stretch, such as para 20(xii) where she stated that counselling had always been

available for Patricia but then cited only one example a year before which was

deferred pending the Hauora assessment and nothing had been done since as Orr in

April 2001 reported difficulties in completing the assessment and therefore CYFS did

not know what issue Patricia might have.

CYFS, especially supervisor John Henwood, was serious about enforcing this

minimal, supervised access.561 SES psychologist Joy Gambey had told Henwood that

she understood that the supervision of Maureen’s access to Mark had been undertaken

by Tui Kake, mother of caregiver Stephen, and who may have been attending the

same church as Maureen. What actually was the cause for concern was not spelled

out, whether it was the relationship between Tui and Stephen, the fact that Maureen

and the Kakes now attended the same church, or the fact that the church was Destiny

Church—not nearly as notorious then as it became a couple of years later. Was

supervision to be undertaken by someone completely unknown to Maureen and with

no possible crossover, even in a relatively small community? On the following day,

Henwood spoke with the teacher aid at Mark’s school who reported bumping into

Mark at the supermarket with Maureen present but the caregiver and access

supervisor outside the supermarket. Later the aid noted that Kake had left but Mark

was still inside the supermarket. Several points occur:

• How could the aid tell in a supermarket the size of Pak n Save just where

individuals were? Did he actually see them leave and Mark stay, or were

they just not where they were when he went in? What about the other

caregiver, Stephen’s wife, was she inside with them?

• Is there any real problem about Mark and Maureen being together inside

while the others were outside? What are the rules of engagement for

supervision of access?

• How did the aid or Henwood know exactly what was going on there, had

they bumped into each other while happening to be at the supermarket or

was it a pre-arranged clandestine meeting with the connivance of the

caregiver and access supervisor? Henwood did not know but reached his

own unsubstantiated conclusions.

561 John Henwood, Casenotes, 13-14 August 2001. Doc 735.

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• Mark ‘excitedly requested’ the aid to meet his Mum and was ‘the best

dressed he had seen him for ages’ as he usually came to school untidily

dressed. This might have suggested to the casual observer (without an

agenda) both that Mark was happy to be with and proud of his Mum (not

sad and browbeaten by her) and that he was better looked after by her

than the caregivers. Conclusions might be drawn from this about the

CYFS policy towards them being together.

Although Henwood noted these two queries for Spicer to follow up urgently

with Open Homes, he did not wait for any investigation to reveal whether there was

any real issue but instructed that they be emailed immediately to Cathy Flynn and to

one Dianne Moran also in CYFS—just in time for them to add spice to their

opposition to Maureen’s access to Mark.

Dr Calvert also supplied an affidavit on the 15th, the day of the hearing.562 She

repeated much of what had gone into her earlier reports—a cunning ploy to get

around their contested nature?—including Mark being scared of seeing Maureen and

Hugh again (as if he still did not regularly), the completely untested suggestion that

Maureen had a personality disorder, and the allegations of historical long-term abuse

and Maureen’s ‘acknowledged severe drug and alcohol problem’. Without reference

to ADHD diagnoses at all, she again put Mark’s problems in the developmental

psychology category due to his having been exposed to those ‘known environmental

factors’. She also added gratuitously: ‘In my opinion, unless there is a commitment to

change by Maureen Reti and family therapy [sic], it is likely that Patricia will also

start to display behaviour and emotional difficulties.’ Given that Patricia had never

been seen by her, this was a complete shot in the dark, entirely prejudicial to

Maureen. Since she was the older child and had already been exposed for much longer

to whatever surely she would have already started to display these if she was going

to? It was her sole comment in support of the s 101 custody order for Patricia, was an

opinion based on no personal knowledge of the subject, and she could give no firmer

conclusion than ‘is likely’ to display ‘difficulties’.

The hearing relating to access for Mark had been set down for 15 August 2001.

The judge had directed that affidavits be submitted in support. Maureen’s affidavit

was filed on 7 August, but CYFS only filed two of theirs late on 14 August and one

562 Doc 739.

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on the very morning of the hearing, thereby kneecapping any ability of Maureen or

her counsel to address their allegations.563 Maureen’s counsel challenged many of the

points raised in Dawson’s 27 June ‘explanation’ and some that arose from the

affidavits. She particularly commented on the three reasons given in that 27 June

letter. She pointed out the discrepancy between Calvert saying Mark was scared of

seeing Maureen and his actual desire to be with her. She raised that obvious fact that

there could be a variety of reasons for Mark’s occasional behaviour deterioration that

were nothing to do with Maureen. And she pointed out that Maureen’s efforts at

getting Mark to be accountable were ‘something most parents would do’.

Flynn countered, opposing Maureen’s application. 564 She again relied on

Calvert’s comments about Mark being scared, the unsettled behaviour at school (once

more assuming without proof a chronological connection meant a causal connection

with misbehaviour by Maureen), and the interview with Palmer in relation to the

criminal matter. She stated that Maureen ‘persists in involving the children’, which

was not the case since the bail variation, and characterised the Palmer interview as

‘clearly placing Mark further at risk of this emotional and psychological abuse’,

completely ignoring the contrary indications that Mark wanted to tell his story, set the

record straight, find out what these various adults were doing to him without

explanation, and just go home. She then used the unsubstantiated and uninvestigated

casenote from Henwood to assert that (a) there was ‘additional contact … not agreed

to by the Social Worker, and is in total disregard of the decision that access be limited

and supervised’, and that (b) ‘It is obvious that Ms Reti continues to flout the

direction of the Social Worker regarding contact with the children’. Flynn declared

that the ‘handwritten interview’ (what is so terrible about it being handwritten?) was

likewise evidence of Maureen ‘continuing to flout the direction of the Social Worker

and the Court in continuing to involve Mark in the proceedings, and to discuss them

with him’. This was despite the interview having taken place over 2 months before the

bail variation and the clear record of the interview transcript that Maureen had said

nothing to Mark, so in fact it was evidence of nothing of the sort. The only positive

element to this submission was paragraph 8 indicating that she had finally spoken to

Mark again (wasn’t this only the third time in total in 18 months?) and assured him

that ‘I would advise the Court again of his fundamental desire to “go home” to his

563 Submissions of Counsel, 15 August 2001. Doc 737, also Doc 743. 564 Submission of Counsel for child, 15 August 2001. Doc 737.

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mother’, which is a pretty unenthusiastic way of conveying her client’s ‘fundamental

desire’.

CYFS counsel Tony Page also filed a submission on the day of the hearing,

opposing Maureen’s application for access.565 He noted that the access had been

decreased in June and simply listed the points in Dawson’s letter of 27 June. He gave

additional reasons derived from the affidavits of Spice, Dawson and Calvert. He, too,

spoke of Maureen’s ‘ongoing refusal to comply with the Social Workers and Court’s

requests not to involve the children in the Court process’, presumably on the basis of

Henwood’s casenotes of the day before, or from plagiarising Flynn, and followed

Calvert in characterising Mark’s special needs as relating to his development, as

opposed to ADHD. He stressed that the law required the child’s interests be

paramount and pointed out that the access had not been stopped but ‘temporarily

decreased’. He argued that close supervision was necessary because Maureen was

unable to recognise Mark’s special needs, comply with instructions, or accept

limitations on her parental rights. Each of these was once more a misrepresentation.

First, Maureen had for years fought for assistance for Mark precisely because of his

special needs and these had been confirmed by several medical diagnoses of ADHD,

as compared with CYFS insistence that based solely on nothing more than a by

Calvert that the developmental approach had apparently not been investigated—she

was, with several doctors, at worst mistaken about the nature of his condition, not

unable to recognise that he had problems. Secondly, the lack of compliance with

instructions once finally set down explicitly in the bail variation (by another court, not

the Family Court) had yet to be shown, or even investigated, and was merely hinted at

in Henwood’s distribution of gossip. Thirdly, this lack of acceptance was frequently at

worst a misunderstanding and often merely aspects of Maureen fighting CYFS on

particular points, as she was quite entitled to do through the system the law

provides—apparently CYFS omniscience and omnicompetence was not to be

questioned.

Judge Somerville determined at the judicial conference on 15 August 2001 that

the access would remain as fixed by Dawson and Flynn at one hour supervised per

week. There are numerous factual inaccuracies, some important (such as the statement

para 3 that unsupervised access had ended when Maureen and Hugh were charged

565 Submissions of Counsel for the Department, 15 August 2001. Doc 740.

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with assault, whereas it had been a year later when Dawson put the clamp on. Was she

confused by them both being in June/July, following Page’s mention of June without

a year?) and some relatively unimportant (such the repeated calling of Tony Palmer as

Mark Taylor). The judge reiterated at length the spurious and/or feeble reasons

advanced by CYFS and Flynn for the reduced access but, although she did note some

of Maureen’s responses, seems nevertheless to have accepted them as valid. She took

without question Flynn’s submission summarised immediately above, without even

noting the obvious inaccuracies and logical flaws apparent to a casual reader,

especially Flynn’s accusations of ongoing interference by Maureen. She did set aside

the question about the youth programme being floated at 5th Dimension and she did

note Mark’s clearly expressed wish to go home. On the other hand, she was ‘putting

to one side Mark’s wishes because I believe that although he is clear in what he is

saying this is a decision that needs to be made outside the wishes of one child. The

welfare and the interests of the child or young person are paramount as stated in s 6’.

Given the way in which those issues were being framed by CYFS and Flynn,

regarding fear, pressure, overbearing behaviour, physical danger etc etc, one might

have thought that his desire to return might have been telling evidence against the

actual existence in reality of such factors. It was ‘very clear’ to the judge, ‘through

counsel for child’, that Mark was blaming himself for all the court proceedings, and

that ‘he should not be blamed, he should not have any pressure placed on him….’ Of

course there was in reality not evidence that Mark was being blamed by anyone for it

all; if Maureen and Hugh blamed anyone it was CYFS, not the boy. Nevertheless, she

held that in this case there was ‘the unacceptable risk of the influence and pressure

from the mother’, despite the evidence and argument to the contrary that it had taken

place and Maureen’s complete compliance with the bail variation.

There is an additional and exceedingly strange minute made by Judge

Somerville to the effect that counsel for the parties would have been given copies of

the submissions and that if she had not then it was up to that counsel to arrange copies

from other counsel. As written the thing makes no sense. In context it appears to be

that Judge Somerville did not accept that Maureen’s counsel had not been provided

with the submissions of Flynn and Page and that it was Nepe’s responsibility to

ensure that they served her with copies. A casual glance at the dates on Flynn’s

submission and the CYFS affidavits shows clearly that Nepe could not have received

them earlier—even if was her responsibility to ask for them rather than being served

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automatically as of right, which is an unusual take on procedure—as they had not

been written until the 14th and 15th.

On the day following, Henwood faxed Tony Page at Open Homes about the

supermarket incident.566 Apparently, Maureen had admitted at some time on 15

August that the caregiver had given permission for Maureen and Mark to have contact

in the supermarket, but no details of this were provided e.g. had they met there by

chance and been allowed to talk while the supervisors did their shopping and waited

outside? Henwood couched this as ‘a complaint requiring your investigation and

response’. In particular, he demanded that there be no physical disciplining of Mark or

any other child placed by CYFS with the Kakes—why was this necessary, re Maureen

or because the Kakes were using such discipline on Mark themselves?—an assurance

of no access to Mark outside the CYFS arrangements. This letter was also sent to

Flynn and ‘Talitha’.

On 31 August, while Maureen was enjoying her access with Mark, the

supervisor permitted him to pass her a letter in an envelope.567 This letter was typed

on a computer with absolutely no knowledge or input from Maureen, but apparently

with some assistance from some adult at Mark’s school and Dorothy Thomas

witnessed its reception by Hugh thereafter. It repeatedly expressed Mark’s desire to

go home to his family as he missed them very very much—hardly the sentiments of

terror Calvert said he expressed to her. It is not apparent what became of this letter

and whether it or a copy went to the judge.

566 Doc 745. 567 Doc 757.

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The Criminal Trial and Acquittal September 2001

Much of the documentary material leading up to early September 2001 relates to

the criminal trial, rather than relating directly to the issues presently under litigation.

Therefore the documents have not been cited or analysed at length, but only insofar as

they appear to bear on the present concerns. The matters are far from clearcut or

readily separable, though, as both sets of litigation and the people concerned, together

with their agendas and personalities, overlap almost completely, and CYFS seemingly

took just as an active part in the criminal prosecution as it did in the Family Court,

apart from supplying the Crown prosecutor.

Judge I.B. Thomas made a series of pre-trial rulings.568

• As to the mode of Mark’s giving his evidence, the judge was satisfied

that Calvert had spent sufficient time with Mark to justify her opinion,

overriding Scott’s recollection that it had been for only 5 minutes not 45

and, given the Crown’s ability to use the video anyway, other opinions

that it would only reinforce former lies in an ADHD person.

• He ruled as inadmissible the Palmer interview with Mark on the grounds

of it being procedurally unfair to the complainant (Mark) and an abuse of

the Court process.

• He ruled that proposed additional evidence about the nature of ADHD

sufferers and what they were likely to do was inadmissible and took the

matter no further than ‘the ordinary human experience and common-

sense of a Jury’. He would not accept additional evidence from Hans

Laven as Laven had not examined Mark. The effect of this, of course,

was to leave the field clear for Calvert’s developmental delay view,

although he accepted without question that Maureen and Hugh genuinely

believed that Mark suffered from ADHD.

• He ruled as inadmissible for usurping the functions of the court Laven’s

critique of the Strange interview. Having viewed the videotape twice

himself, the judge was ‘quite satisfied the interviewer was reasonable in

coming to those conclusions’, and that Mark ‘did understand the 568 Doc 750.

207

concepts and did make an appropriate response’. He therefore admitted

the evidential interview.

• He ruled that all but 2 of the passages from the interview were

admissible as evidence, usually because the Crown still had to prove that

what was done was not ‘reasonable discipline’.

A draft brief of evidence was received on 31 August from Dr Tony Hanne, the

doctor who had first diagnosed Mark’s ADHD problem. 569 He treated some 10% of

the cases from throughout New Zealand and being a recognised expert was used by

the Ministry of Health to write the guidelines for the disorder’s treatment. He

described in detail the various symptoms of ADHD and noted that 50% of sufferers

also suffered from either or both of oppositional defiant disorder and conduct

disorder, although the relationship between the three conditions was not clear. Many

of those with these problems end up in gaol despite predictive behaviours from

primary school days, and so it was very important to manage the problem at that time

to avoid such an outcome—which was what Maureen had been desperate to prevent

after Lance’s example. These also made it much harder to manage and he cited other

international expert opinion:

Dr Christopher Green, a Sydney paediatrician who is regarded as one of the world’s experts in childhood ADHD, expresses sympathy for parents of ADHD children who may be blamed for their lack of parenting skills. He says, on the contrary, such parents may be among the best in the world because they have to be. Parents of such children are under enormous pressure because of the constant demands of handling their child. Most would acknowledge they get it wrong and lose their tempers at times. This is one of the reasons why it is so important that these families are very well and sympathetically supported within the community. Unfortunately, in New Zealand, with inadequate resources, this is often not the case. This of course all sounds depressingly familiar when the Marriott case is

considered. A parent under enormous pressure in her general life situation, even

before Mark’s problem was added to the mix. That parent being blamed by

outsiders—in this case who refused to consider that Mark had any such disorder or to

provide for it, let alone cut Maureen any slack—for her poor parenting skills.

Maureen’s acknowledgement of having got it wrong on various occasions, and the

beating in question coming when she was at the end of her perceived options. The

569 Doc 756.

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failure of family and especially the professional agency CYFS to support her, and

instead blaming and condemning her.

As to Mark particularly, Dr Hanne commented that ‘he showed at that time all

the typical features of ADHD already referred to…’, had been manifesting those

behaviours at home and school, and had been difficult to manage eve as a baby.

Although Mark did not obvious display signs of ODD or CD, that would have been

common at that age as the features are much more easily controlled at five. He would

have expected problematic behaviours to continue, their extent dependent on

medication and the extent to which there were support structures in place. As to the

types of behaviours expected, he commented:

If over the following years signs of oppositional defiant disorder or conduct disorder were manifested, this would in no way discount the original diagnosis of ADHD as being the underlying problem. Behaviour such as stealing, lying, lighting fires, aggressive behaviour and cruelty to animals are all behaviours which commonly are seen in those with this combination of problems.

These particular behaviours were, of course, those displayed by Mark in the period

leading up to February 2000.

Dr Hanne continued by addressing the psychologists’ reports upon which CYFS

and the Crown prosecutor were relying:

I have reviewed the briefs of evidence presented to me which were prepared by Dr Sarah Calvert and Joy Gamby. I find nothing in them which is inconsistent with my opinion that Mark suffers from ADHD. Further support came from the very evidential video by Strange upon which

CYFS and the Crown were relying so heavily, had they cared to look or had eyes to

see:

From my observation of the video, Mark was continuing to exhibit the characteristic problems of ADHD, namely poor concentration and hyperactivity…. [Visible examples given.] Again I see no reason to doubt the diagnosis of ADHD, but rather the course of events I heard described by Mark would be completely consistent with the kind of problems which are likely to unfold in such a child. A child of 9 with ADHD giving evidence about an unpleasant event might be expected to have difficulty managing his emotions of anger. Impulsivity, as already described, could lead him to lie by exaggerating. If CD was also present this tendency might be increased if he saw the possibility of gain, for example as a means of revenge.

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No doubt Dr Hanne was focusing on the specific behaviours and circumstances

raised by Mark’s history, but this expert’s unequivocal evidence was that all of

Mark’s behaviours fitted directly into the ADHD diagnosis, and even better when

combined with the associated disorders that were at least as likely as not to co-exist

with the ADHD. His evidence did not specifically say that there could be no other

possible basis for his behaviours and problems, but it did indicate clearly that Mark

exhibited the classic symptoms of ADHD and this diagnosis accounted for all his

subsequent behaviours also, including his conduct in the Strange interview.

During the trial, Mark’s examination by Hollister-Jones immediately revealed

that Mark now said that many of the statements he had made in the Strange interview

about the violence inflicted on him had been untrue.570 His cross-examination by

Matthew Goodwin, for Maureen, revealed again that much of what had gone on was

just as Maureen and Hugh had claimed, and Goodwin also led Mark through

numerous other incidents of bad behaviour including stealing, violence and even

petrol sniffing at home and school, as well as the many different ways in which

Maureen had tried to discipline him prior to the night of the caning. The hits had not

drawn blood and Mark had been able to sit down on the floor later that day, nor had

Maureen hit him thousands of times before or Hugh ever hit him at all previously.

Aspects of the other witnesses’ testimony have been inserted where appropriate

into the account of the events of 9-10 February above. A few additional points can be

made with relation to the present action against CYFS:

• None of the trial lawyers asked Mr McNair, Mark’s principal, why he released

Mark to them merely on the condition that they inform Maureen before doing

so. Contrary to standard practice, he did not demand a warrant or other written

statement of why they believed it necessary to (a) up lift Mark at all and (b) do

so immediately.

• When Dorothy Thomas was giving her evidence in chief, she talked at length

about Mark’s behaviour prior to the disciplining. Amongst all the other details,

she commented that there were very short periods when Mark did behave well,

such as:571

570 DCT93/00. Trial transcript for Maureen Reti. 571 Trial transcript, p 90.

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when he was eating or when he was first up in the morning and, um, he would be alright until he worked himself up. By about 9 o’clock he’d be starting to work himself up into thinking of mischief, wondering what he could do next … but there was always something winding up.

In the latter context, of course, this relates to the later CYFS obsession with

how Mark behaved on Monday mornings when returning from access with

Maureen—and also, although CYFS, Calvert et al never took notice of it, the

other reports from the school that he was bad first thing in the morning until

the dedicated teacher’s aid or the programme could settle him down. It was, at

least in part, a longstanding behaviour pattern, not something new that

occurred only when Maureen had access to him.

• Following extensive evidence about Mark’s behaviour over many years, Dr

Hanne was questioned in detail about how all of this fitted with the ADHD

plus ODD and CD. He concluded that ‘what you put to me is entirely

consistent with that combination of ADHD with degrees of oppositional

defiant disorder and conduct disorder…. It’s certainly near the very serious

end of the scale and it’s serious because the evidence shows what will happen

to these children in later years. It’s not just the damage done at the moment,

it’s the concern that they will be before the Court themselves in … time.’

Which was, of course, precisely Maureen’s anxiety for Mark, but ignored by

CYFS and its advisors.

• Upon being shown the photographs of Mark’s injuries, Dr Hanne commented

that he could not say what severity of force was used to make them (partly

because they were only photographs and because he did not know the timing

or type of instrument used), and neither, he believed, could anyone else

because of the enormous variability of individual skin responses to even small

scratches.

After about 90 minutes, the jury returned a verdict of ‘Not guilty’ on both of the

assault with a weapon charges.572 Hollister-Jones advised Tony Page on 6 September

(received 7 September) that both Maureen and Hugh had been found not guilty. 573

Maureen also asked social worker Tony Spicer if both Mark and Patricia would be

572 Indictment, T 93/00. Doc 764. 573 Hollister-Jones to Page, 6 September 2001. Doc 758.

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permitted to spend Friday to Sunday nights with herself and Hugh as a first step to

reuniting the family.574 Spicer agreed to this on the following day. 575

574 Maureen Reti to Tony Spicer, 6 September 2001. Doc 759. 575 Tony Spicer to Maureen Reti, 7 September 2001. Doc 761.

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No Letup from CYFS in the Family Court

Despite the criminal acquittals, the struggle with CYFS directly continued

without respite in the Family Court.

On 17 September, Maureen asked Spicer for Mark and Patricia both to be

released to her care for the forthcoming holidays 21 September to 7 October.576 Spicer

agreed immediately in regard to Patricia, but would not agree concerning Mark

without consulting with Flynn. 577

Simultaneously with these developments, an earlier request to local MP Jeanette

Fitzsimons was activated by the MP and a request for the family’s file was made by

her to Louise Cairney at CYFS Paeroa.578 Also, an article appeared in the Sunday

News about the battle to have Mark returned, with CYFS refusing to comment as the

matter was still before the Family Court.579

Maureen met with Spicer on 21 September and he did agree to Mark spending

the first week of the holidays with Maureen, but not the second. Maureen wrote to

him, expressing both her disappointment and Mark’s feeling that CYFS was now

punishing him—she did not say punishment for what, perhaps for not providing

stronger testimony against his mother?580 She invited him to inspect for himself the

living arrangements and how the holiday was progressing thus far. Spicer replied that

he had ‘carefully considered your request and consulted with both my supervisor and

the counsel for child….’581 The one-week decision was to stand, though, on the

grounds that this was ‘the first time for some period that he has been with you without

supervision. The impact of his time with you and your ability to handle him is still

very much an issue.’ One the face of it that might sound reasonable, but in fact there

had been no issues of control with him for 18 months, apart from the vague comments

regarding him being difficult in the school meeting in June. He had been with her for

substantial periods during the post-uplifting period and the issues had been pressure

regarding the criminal trial issues, which had now been unequivocally resolved in

576 Maureen Reti to Tony Spicer, 17 September 2001. Doc 766. 577 Tony Spicer to Maureen Reti, 18 September 2001. Doc 768. 578 Rosalie Steward to Louise Cairney, 20 September 2001. Doc 770. 579 Doc 771A. 580 Maureen Reti to Tony Spicer, 26 September 2001. Doc 775. 581 Tony Spicer to Maureen Reti, 27 September 2001. Doc 777.

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Maureen’s favour. So her ability to handle him was not nearly the issue Spicer (with

Cairney and Flynn in the background) made it out to be.

In fact, Maureen responded that the supervised, limited-access period was of

CYFS making in varying the existing access arrangements, that Spicer had refused her

invitation to see for himself how things were going and instead denied her the benefit

of the doubt, and questioned whether CYFS had any justification at all in retaining

control over either of the children in light of the trial’s outcome which ‘overturned

any perceptions and fears upon which your department has based its actions to

date….’582

Much of the subsequent period was taken up with a dispute between the Legal

Services Agency and Matenga and Associates over whether Maureen’s legal aid

should be funded, beginning with the critique of Orr’s report. The LSA position (Doc

785) was merely a repackaging of a vehement critique by Richard Swarbrick, a Te

Awamutu lawyer, of the entire case.583 He said that the LSA had little information

(Nepe responded that they already had 300 documents from the criminal trial which

should not need to be recopied584). He accused Maureen of shopping around (Nepe

pointed out that Matengas were only Maureen’s second lawyers and had been acting

for over a year). He accused Maureen of having a deep seated philosophical and

political difficulties with the Department’s position—well of course she did, that’s

why courts were invented! The LSA did not know what the current care arrangements

were—but they would have if they examined their existing documentation, and Nepe

summarised them in return. He thought that Nepe was inexperienced and being

bullied by Maureen into not giving Maureen sufficiently robust advice—Nepe wisely

treated that with the contempt it deserved, but did say that although Maureen had

often acted on her own, much of it was prior to counsel being appointed, the judge

had requested counsel at all hearings, and Maureen’s case had merit and was likely to

be successful. He said the judge had dismissed Maureen’ s case as unmeritorious—

this was a misreading of Coyle’s letter and Nepe pointed out that it was only the

judicial review application that was unmeritorious, not her main case as Coyle had

implied and the reviewer stated. And so on.

582 Maureen Reti to Tony Spicer, 28 September 2001. Doc 778. 583 Richard Swarbrick to LSA, 4 October 2001. Doc 784. 584 Sacha Nepe to LSA, 25 October 2001. Doc 794B.

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An issue arises as to why this case review was conducted, and why the lawyer

concerned was so vehement in his condemnation. According to Hugh’s commentary

at p 153, Sacha Nepe had had a phone conversation with Karen Quinn, the LSA

administrator, during which Quinn had revealed that someone had telephoned her on

or about 6 September (the day after the criminal trial) to draw her attention to Coyle’s

letter of 21 December 2000. Hugh believes that the mysterious phonecaller was

probably Flynn, or perhaps someone ‘inspired’ by her, seeking to choke off any

possibility of a suit for wrongful prosecution. I remain unclear, though, as to how

Flynn would have known of Coyle’s letter, unless Coyle had told her he had written

it—but does that come under preserving his professional relationship with her? That is

possible, but remains another untested link in the chain. Equally possibly it was Coyle

himself, as he and Maureen had not parted on the best of terms and he might be a

spiteful man. See below regarding the question of CYFS interference.

In early November, Chris Dickie of Edwards, Clark, Dickie in Auckland, agreed

to represent Patricia, or at least to review the materials with a view to a possible civil

suit against CYFS.585

Simultaneously, Don Horsefield, Acting SDU Manager at CYFS, wrote to

inform Maureen that CYFS would be continuing to pursue the matter in the Family

Court.586 He advised that ‘the Department believes that it has good grounds to proceed

with matters presently before the Family Court’ and therefore refused to withdraw

from those proceedings. He reiterated the CYFS intention to continue to oppose

Maureen’s attempts to regain custody of Mark, pointing out that the District Court

was concerned with criminal liability while the Family Court would have to consider

the safety of the child—this distinction loses its force when the sole ground for

concern about the child’s safety was the single occasion in relation to which the

District Court had found Mark had not been assaulted. He relied entirely on the old

CYFS affidavits for providing the grounds for continuing to seek custody of

Patricia—which would have force if those affidavits in themselves had been accurate

and fair representations of the situation. His point that a court was the appropriate

independent forum to resolve these matters only has force if (a) there was no better

forum such as a mediation situation that did not entail litigation, and (b) CYFS pursuit

of the issues was fair and reasonable, rather than simply creating more issues,

585 Docs 805, 807. 586 Don Horsefield to Maureen Reti, 6 November 2001. Doc 808.

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complexity and unfairness through virtually untrammelled exercise of its power for 20

months already. His position that CYFS was not obliged to withdraw from the

proceedings following the criminal acquittal was reiterated in a response from

Secretary of Justice Belinda Clark.587

I note that Hugh has detected a coincidence of dates: they sought an

appointment with him on 28 September and 3 October. Mr Horsefield looked at the

Paeroa file on 4 October, and the letter from the LSA potent ially refusing additional

legal aid was written on 6 October. But the Swarbrick letter with its critique of the

LSA’s handling of Maureen’s case was written on 4 October and 6 October would

have been the day on which its recommendations were actioned. Apart from other

evidence regarding that phone call of 6 October, it seems difficult to sheet that home

to CYFS as pressure and interference in the legal aid system.

As Sacha Nepe sought the videotapes of the evidential interviews from CYFS

Paeroa, John Henwood told her they were Police property and to get them from Det

Macky.588 He also copied the correspondence to Crown prosecutor Hollister-Jones,

although what his interest in the ongoing Family Court proceedings might have been

is unclear.

With the Family Court hearing only a month away, Flynn contacted Sacha Nepe

to clarify the issues in dispute.589 She was of the opinion that they boiled down to

custody (both legal and placement) and access. Her flow chart attached indicated that

she was not stepping back from the earlier plans nor the recommendations of the

earlier reports such as requiring Hugh to be psychologically assessed. Further, her

lists of care and protection factors indicated that she had resiled from nothing in the

wake of the criminal acquittal nor the challenges to the characterisation of what was

going on eg with them blaming Mark and Patricia being secretive, let alone the

involvement of children in the proceedings, which was the issue with the bail

variation in the criminal matter and was now greatly diminished. This was also sent

(not copied) to Hollister-Jones.

The proposal Flynn was drafting was based entirely on the Orr report, which

was still in contention. Furthermore, to that time, she had herself never interviewed

Maureen or Hugh, nor had she visited the home environment—quite apart from her

587 Belinda Clark to Hugh Smith, 7 November 2001. Doc 809. 588 John Henwood to Matenga & Associates, 7 November 2001. Doc 809A. 589 Cathy Flynn to Sacha Nepe, 9 November 2001. Doc 810.

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negligible dealings with the children—yet she was laying down these requirements,

apparently operating by remote control.

On 13 November 2001, Maureen wrote a hand-delivered letter to Tony Spicer

asking three questions:590

• For a reversion to the practice of Maureen having both children each

weekend.

• Approval for her to have the children after school on their respective

birthdays less than a week away

• A repetition of what had happened the previous year when CYFS had

provided the then caregiver (i.e. Tania Mapu) with a $50 gift voucher for

each child as a birthday treat, but that this time it be given to Maureen so

that, unlike the previous year, the children could have both their full

entitlement and choose presents. Is this an implication that Tania had

pocketed the money and not bought presents/done something special for

the children? If that had happened did CYFS have a responsibility to

ensure that it did not simply become a windfall for the caregiver and that

the children did indeed benefit, by e.g. full accountability from the

recipient, which CYFS failed to discharge?

Then, on 19 November, Maureen and Hugh advised Spicer that Mark had been

excluded by his school from going on a camp, resulting particularly, they believed

from the past 22 months of CYFS denial and resulting school ignorance of his ADHD

condition—although this exclusion would be likely to exacerbate the oppositional

defiant behaviour associated with ADHD. 591 Therefore, they were taking the

opportunity to take Mark to Auckland to see an ADHD specialist for consultation and

tests. They sought CYFS funding of $410 for the consultation and travelling costs.

Spicer, however, refused to approve this without knowing who the specialist was and

their relevant qualifications—it was obviously Dr Tony Hanne—and they did also

reserve the right as custodians to contact the specialist.592 His response did not come

until the time period when they were proposing to implement this, with no

explanation of the delay in response. There was no discussion by Spicer of Maureen’s

argument that they wished the name to remain anonymous prior to the consultation

590 Maureen Reti to Tony Spicer, 13 November 2001. Doc 814. 591 Maureen Reti to Tony Spicer, 19 November 2001. Doc 818. 592 Tony Spicer to Maureen Reti, 22 November 2001. Doc 822.

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because of her understanding both that Flynn and CYFS rejected a priori any ADHD

diagnosis, and because there had been interference by Flynn and CYFS in previous

assessments.

Flynn wrote to Maureen’s new counsel, Chris Dickie of Edwards Clark Dickie,

seeking an urgent response to her draft letter and schedules concerning the upcoming

Family Court hearing.593 She stated that there was urgency because she needed to file

it by the end of that week. This is a more urgent version of the previous

communication with Sacha Nepe, which is understandable given the passage of time.

It would be hard to make anything more of this request for haste than that, although

the content was no doubt still as problematic.

However, there is another problematic linkage as on 20 November Tauranga

Crown solicitor Hollister-Jones was the lawyer dealing with Barry McLean, the

barrister Dickie had engaged for the court work, as he had also been the Crown

lawyer to whom recent correspondence had been addressed. What had happened to

Tony Page, the CYFS solicitor who had been dealing with matters and appearing

before the Family Court previously? Was he simply unavailable? Was he not

perceived as hard-nosed enough in a crunch situation for CYFS getting its way? Was

it, as Hugh apparently believes, that Hollister-Jones was more likely than Page to

implement the wishes of Flynn. He also rejected McLean’s initial attempts to smooth

the process and deal with core issues by tartly telling McLean that it was ‘premature

to start discussing “bottom Lines”’ until McLean had familiarised himself with the

file. This on one level is probably right, but on another it means (a) that McLean

would have to do much more donkey work than if matters were honed down, and (b)

may well imply that Hollister-Jones believed McLean would be less supportive of his

clients once he saw the full extent of their supposed iniquities. It certainly shows

CYFS representative was in no rush to either resolve matters or be conciliatory over

its stance. A week later, Hugh asked McLean for his opinion concerning Hollister-

Jones’s possible conflict of interest, given his having prosecuted them, and also that

he faced possible action in person from them:

for issuing a witnessed threat of arrest to Smith, the threat being a feature of his intimidating tactics and arising from his own failure to investigate his concern at the time before issuing the threat.594

593 Cathy Flynn to Chris Dickie, 19 November 2001. Doc 819. 594 Hugh Smith to Barry McLean, 29 November 2001. Doc 834. This is the first time any documentary mention is made of any such incident and the mention itself is hard to follow.

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The scheduled appointment with Dr Hanne for 22 November was cancelled,

apparently by the doctor, although he had just sent a fulsome letter of welcome. That

day also was when Spicer faxed the CYFS refusal to approve the visit. Maureen tried

to talk to Spicer on the phone, but Spicer hung up on her in mid-sentence. The only

document that relates to this is Hugh’s hand-delivered letter of the same date, which

indicates that Maureen’s discussion with Spicer was cordial, factual, and a sincere

attempt to explain to him why they were trying to advance the addressing of Mark’s

needs, even though they were denied by CYFS.595 Hugh objected to Spicer’s phone

behaviour, to CYFS refusal to cooperate unless she divulged the specialist’s name,

and to Spicer’s refusal to respond to ‘the last three cordial communications’ Maureen

had sent him. Hugh said there was no objection to CYFS knowing the specialist’s

identity, or to CYFS being provided with the specialist’s subsequent

recommendations, but that they wanted it to be after the first consultation so that there

could be no contamination, while the consultation was privately funded by Hugh

himself and if Spicer chose to believe that ‘malice was intended, it is sad if you see it

that way’. He detailed once more some of the events that had led them to want to

maintain that initial privacy. This letter notes a number of occasions on which Spicer

had failed to respond to their letter or phone communications, or to meet with them

personally.

The legal aid reviewer of Maureen’s file, Richard Swarbrick, sent another

unprofessionally obnoxious letter to Karen Quinn on 22 November.596 He dismissed

Sacha Nepe as having ‘a limited grasp of the issues and a lack of understanding of

Legal Aid matters’. He took the fact of Maureen changing solicitors again as proof of

his ‘case’, with no consideration of why she was doing it (Matenga’s refusing to act

without additional funding and suggestions that they were not as diligent on the case

as they might have been), and then gratuitously dismissed it all as a Maori thing:

‘there are some Maori clients who put undue pressure on junior Maori solicitor—that

may be what has been going on here’. Given that none of the others lawyers

apparently also so used were Maori this is racist nonsense. Also might not any strong

client, of whatever ethnicity, overawe a junior solicitor, if that had even been what

595 Hugh Smith to Tony Spicer, 22 November 2001. Doc 823. 596 Richard Swarbrick to LSA, 22 November 2001. Doc 824.

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was happening? All of this, though, once more has little relevance to the present claim

against CYFS.

By 25 November, it was becoming apparent that the Family Court hearing for

11-13 December would not be available and that it was unlikely anything more could

be done prior to the two-year limitation. Hugh therefore declined to spend any more

on the barrister McLean at that time.597

Presumably spurred by Maureen’s efforts to get a consultation with Dr Hanne,

Tony Spicer wrote to the Waikato paediatrician Dr Newman asking for a copy of the

original diagnosis of Mark’s ADHD. It raises several issues:

• He noted that Mark had ‘missed some appointments’, but surely since

Mark was in CYFGS care at this time it was CYFS responsibility to

ensure that he was taken to those appointments. Apparently Maureen had

no knowledge of the appointments and so had not tried to take Mark, but

did the CYFS-appointed caregivers? Who had been notified of the

appointments?

• He stated that they had never received such an assessment. Was this the

sole basis on which they had for 22 months been denying that Mark had

ADHD and going to such lengths to portray Maureen as misguided and

incompetent for acting as though he did?

• This admission indicates that CYFS had never taken seriously the

question of sorting out Mark’s needs. The issue had been before them

from earliest days in this saga, reiterated endlessly in the argumentation,

yet they had done nothing to ascertain its validity and have him treated

accordingly.

• Apart from all of that history, Dr Hanne’s sworn evidence had been

before them since the District Court trial. Yet only now was a question

being asked of Dr Newman. No question was apparently ever asked of

Dr Hanne although they knew that both he and Dr Galler Rimm had

made the diagnosis and treated Mark on that basis. It would have been no

harder to contact them than it was now to contact Dr Newman, yet it was

never done.

597 Hugh Smith to Chris Dickie, 23 November 2001. Doc 825.

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• Spicer told Dr Newman the school reports indicated that Mark might not

have ADHD. How would Spicer judge that from the minimal contact he

and CYFS had had with the school and his own qualification to draw that

conclusion from their reports? How could the school make such a

medical diagnosis?

• The ‘other professionals’ can only be Calvert and Orr. Orr had at least

accepted the possibility that Mark had ADHD, but had not tested for it or

to exclude it. Calvert had merely stated that developmental testing had

not been done on Mark. These are some distance from Spicer’s wording

here.

• Spicer’s wording here, that Mark ‘may not have that presenting

problem’, indicates an acceptance that he did have the problem, but that

new evidence raised other possibilities. That had never been the CYFS

and Flynn position as both had steadfastly denied it and, advised by

them, the Crown prosecutor had refused to concede it in the criminal

trial.

The pressure of the impending defended hearing resulted in Flynn seeking an

urgent judicial tele-conference. Barry McLean still had not received the case file from

Matenga and Associates and so had been unable to have input into the memorandum

of Issues.598 McLean asked Hollister-Jones to be able to peruse the CYFS file, with

electronic communications printed in hard copy, and also advised that he struggled to

see this being dealt with in three days as he intended to take a day cross-examining

Kathy Orr alone and knew the Calvert report (which he had not been provided) would

also be contentious. He was still looking for ‘an opportunity of resolving this matter

other than by way of a defended hearing’.599 Further correspondence on these matters

followed between the lawyers. McLean advised Dickie that, apart from financial

matters, he did not think it could be handled in three days, he still did not have the file

from Matenga’s, and he was not convinced about how realistic Maureen and Hugh’s

expectations were, i.e. that he did not believe they had mentally separated the

recovery issue from the objective of suing CYFS, that a case in respect of Mark’s

removal would stand little chance, that the children would not likely be returned

598 Cathy Flynn to Registrar, 27 November 2001. Doc 828. 599 Barry McLean to Greg Hollister-Jones, 27 November 2001. Doc 829.

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without restrictions given ‘the acknowledged injury suffered by Mark’.600 He thought

the best likely outcome was return into Maureen’s care with custody remaining with

CYFS.601 A tele-conference was allocated for 3 December.

A potentially positive development was that, for the first time in 22 months

since Matich et al served the warrants, CYFS finally made an appointment to send

two social workers to visit the children’s home environment and interview Maureen

and Hugh on 4 December. However, Flynn had never done either of those things in all

that time and had met them only at the actual court appearances.602

On 30 November, the LSA paid Matenga’s final invoice and also noted that the

file had been transferred to ECD in Auckland.603 There was not a note then, nor had

the previous correspondence indicated directly, that further legal aid had been actually

refused. Apparently, thereafter Maureen and Hugh and their counsel simply

proceeded on the basis that it had been discontinued.

Maureen sought advice from McLean regarding statutory limitations as they

applied to her prospects of suing CYFS.604 She also did so from Rosalie Steward,

electorate agent for MP Jeanette Fitzsimons.605 Ms Steward replied on 3 December

with copies of relevant legislation and information that she had spoken to Bruce

Chetwin, a new CYFS practice manager at Paeroa, and ‘made it clear to him that I am

dissatisfied and annoyed that my Official Request was virtually ignored’. Apparently

it was once more not only Maureen and Hugh who were being stonewalled on this

matter by CYFS. Since McLean had requested the files, these had been sent to

Hollister-Jones for scrutiny before release to him, which indicated to Ms Steward that

‘your case is obviously being taken very seriously by the Department.’

Cathy Flynn’s memorandum of issues for the defended hearing set down for 11-

13 December was distributed to counsel on 3 December, but not received by Maureen

and Hugh from McLean until 12 December.606 She set out the two key issues as being

the legal custody of the children and the actual placement of the children. She

acknowledged that the issues were different for the two children. She included as the

essential options the recommendations from the Orr s 178 report for anger

600 Barry McLean to Chris Dickie, 28 November 2001. Doc 830. 601 See also Docs 831, 832, 833. 602 Hugh Smith to Barry McLean, 30 November 2001. Doc 837. 603 Doc 839A. 604 Maureen Reti to Barry McLean, 3 December 2001. Doc 841. 605 Rosalie Steward to Maureen Reti, 3 December 2001. Doc 843. 606 Cathy Flynn, memorandum, 3 December 2001. Doc 842.

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management and parenting skills programmes for both Maureen and Hugh, and

whether these should be implemented by consent or by court direction. She asked

whether, if Maureen was to continue to live on the same site as Hugh, whether Hugh

should be directed to complete a psychiatric assessment. NB here the assessment of

Hugh, dodgy enough in Orr’s report, has moved from being a psychological

evaluation to a psychiatric one. Psychology and Psychiatry are two related but very

different propositions as psychiatry deals with actual pathology, with disease of the

mind, and is a medical discipline practised by doctors, not psychologists. Was this a

slip of the keyboard by Flynn or was she seriously putting on the table a psychiatric

evaluation, which was a far more serious business than evaluations by Hauora or Orr?

She also raised the issues of the youth programmes at 5th Dimension and Lance’s

release from prison, and their potential impacts on Maureen’s home. Procedurally, she

too indicated that she could not see the whole business fitting into only 3 days.

Flynn also dropped the bombshell in this memorandum that Kathy Orr’s original

file on which she had built her s 178 report (on which Flynn relied) had been lost in

transit to the critiquing psychologist and so could not now be critiqued—NB this was

all Orr’s notes, records and such, not the finished report as Hugh repeatedly states in

his notes; this had been filed in the possession of Flynn and others for months. The

crucial thing about that loss was that the critiquer could not then retrace Orr’s steps

without re- interviewing everyone and re-viewing every file etc. This would have been

both a great expenditure of time and contravened the existing decision that the

children should not be hassled again. Methodologically, it would not necessarily have

yielded the same results so much time later. I have seen no documentation that then

asked about the admissibility of the Orr report since, although it was on the record, it

was not now able to be critiqued.

Flynn also produced a brief memorandum setting out her clients’ instructions

and did begin by expressing the clear wish of both children to return home and

acknowledging that both children were confused and frustrated.607 However, she

rather undercut that by including Patricia’s statement that ‘there were no bruises on

me’ in quotes (implying that she had not been hit sufficiently hard of recently for

Maureen to be caught), and by reiterating that both children believed it was all Mark’s

607 Cathy Flynn, memorandum, 5 December 2001. Doc 842.

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fault, an opinion that she and CYFS had blamed on Maureen and Hugh scapegoating

him.

A telephone conference on 3 December, which McLean attended on their behalf,

established a number of procedural matters.608

Hugh faxed McLean, asking him to spell out clearly whether the Family Court

was the forum in which Maureen could clear her name of the various labels attaching

to her after all the goings on of the last couple of years. If it was not then they would

pull out altogether, discharge their counsel and continue as they had for as long as it

took ‘to live their lives without a cloud over the heads’.609

With regard to keeping issues focused, McLean advised Maureen and Hugh that

the Family Court process was limited to CYPF Act matters. He clarified to them that:

The Family Court does not have jurisdiction to determine and/or compensate for allegations of negligence or worse against social workers. Any such proceedings must be brought in the civil jurisdiction. 610 He advised that if Maureen continued to deny that there were any problems with

her parenting then the court would be unlikely to give her daily care of the children.

He also gave his opinion that the chances of the court giving back the children with

absolutely no strings attached were so small it should be ignored as an option. He

countered their desire to withdraw from the Family Court if it did not return the

children without qualification with his opinion that a successful return was essential

before the High Court would consider any remedy. He did not think that any of the

‘much more economical’ alternatives to such proceedings would be possible because

‘as all of them would require Maureen to alter her attitude, they would be

unacceptable to you both’. He said that unless he received alternative instructions

from them he would withdraw from representing them on the following day, but that

given the nature of their instructions he did not think that would be prejudicial to them

before the court. Chris Dickie reinforced the crucial point of focusing in the Family

608 McLean to Dickie, 4 December 2001. Doc 847. 609 Hugh Smith to Barry McLean, 5 December 2001. Doc 852. 610 Barry McLean to Maureen Reti and Hugh Smith, 5 December 2001. Doc 850/853. Hugh notes that this statement conflicts with the Family Court Act 1980 s 11(h) [actually 11(1)(h)], but the Doc 802 to which he refers is not in the bundles provided. Doc 867 is a copy of s 11 and reads that the Family Court shall determine proceedings under any provisions of ‘(1)(h) Any other enactment for the time being in force.’ This does not, though, mean that the Family Court can determine matters under any Act in existence. This is governed by the first portion of the section whereby a family Court determines ‘all such proceedings as are to be heard and determined by such a Court….’ i.e. by a Family Court. It is not a court of general criminal or civil jurisdiction, just as under s 11(2) the judge can exercise only ‘any jurisdiction or power conferred on a Family Court under … any enactment’.

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Court at this time on the custody and guardianship issues, rather than trying to bundle

in damages issues.611

In anticipation that CYFS or Flynn would want to interview Mark, Maureen sent

his principal a direction on 4 December that before agreeing to such an interview he

should contact either her or Alan Scott from Open Homes to ensure that Mark had a

support person/witness present.612 She also notified Alan Scott of this and informed

him that she was taking Mark to Auckland on Friday 7 December to see an ADHD

specialist (Dr Hanne).613

On the same day, Tony Spicer and a female social worker visited Maureen and

Hugh to interview them and assess the home environment. This was the first time

since the upliftings that CYFS had visited the home or interviewed them. All

judgments, opinions and rulings prior to this date had been made without any such

contact or information—such information would appear to be fairly basic to a social

worker’s understanding of a family situation, even, for example, how those proposed

youth programmes could have fitted in physically as it was not an ordinary home.

Discussions with counsel continued, Hugh faxing McLean on 6 December with

a proposed compromise regarding both Maureen’s parenting skills and access

arrangements over the coming holidays, and additional information.

On 6 December at another teleconference, Judge Somerville set down a four-day

slot for a defended hearing on 4 March 2002. Within the week, counsel were to devise

proposals amongst themselves for access over the holidays and unsupervised access

with both children over the weekends. Broader proposals from Maureen were to be

provided by Wednesday 12 December, when two hours would be allowed to discuss

these and for CYFS to update the risk assessment.614

Maureen took Mark to Auckland on the morning of Friday 7 December.615

When Principal Brian Sheedy asked if CYFS knew, she told him that they did and

were ‘well- informed’. Tony Spicer phoned that evening, accusing her of lying to

Sheedy (which she denied), and told her that he had to report this, that CYFS did not

trust her, and that it would not look good in court. She refused to give him the

611 Chris Dickie to Hugh Smith, 5 December 2001. Doc 850A. 612 Maureen Reti to Brian Sheedy, 4 December 2001. Doc 845. 613 Maureen Reti to Alan Scott, 4 December 2001. Doc 846. 614 Registrar, minute, 7 December 2001. Doc 858. 615 Maureen, notes, 7 December 2001. Doc 859. There was also an issue with vouchers to be issued that day for the weekend’s access, which he had apparently withheld because of the dispute. They were made available on 10 December.

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doctor’s name verbally for the written reasons already provided, but did agree to put it

in writing now that the consultation had taken place. I note that there are no notes in

this document bank of CYFS records of conversation such as this. There must surely

have been filenotes made by the various staff members at the time. Why have they not

been released under discovery/OIA?

Dr Hanne’s report following the consultation reviewed Mark’s past and

problems.616 He concluded:

In summary, Mark shows a characteristic picture of ADHD combined type together with oppositional defiant disorder and a fairly limited intellectual ability…. He obviously loves his mother and respects his step-father. I believe they have a good understanding of him and a commitment to provide the stability of care which is so important in these conditions. He will continue to need one to one educational help and good support.

He was requesting a review by another paediatrician for confirmation of his diagnosis

and recommending treatment with Dexamphetamine, given the previous reaction to

Ritalin.

Obviously feeling caught between CYFS and Maureen, at the first opportunity,

the following Monday, Principal Brian Sheedy asked for written clarification from

Tony Spicer as to the access and custody arrangements regarding Mark, including for

appointments during school time.617 While this clarification was sought after he had

had Mark in his school for most of two years, this was clearly a trouble-avoiding

response to the events of the Friday 7th. He copied the request to Maureen and asked

that the written response be copied to her also.

On 10 December, following consultations with the social worker (Spicer?) and

supervising social worker (Henwood? Cairney?), Flynn made access proposals to

McLean for the Christmas holidays as follows:618

1. Patricia would return home for all of the school ho lidays. In the new

year, she could remain at home and attend a day school of Maureen’s

choice, provided that: Maureen and Hugh attend a suitable parenting

programme [NB there was now no mention of an anger management

course], CYFS would resource one weekend a month respite stay with

616 Dr JA Hanne, report, 10 December 2001. Doc 862. 617 Brian Sheedy to Tony Spicer, 10 December 2001. 618 Cathy Flynn to Barry McLean, 10 December 2001. Doc 868.

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Brenda Reti if wanted, and that CYFS would get monthly reports from

the school.

2. The plan and orders would be reviewed at the end of February.

3. Mark to return home for all the holidays only, except for one week

beginning 14 January which he would spend back at Kakes. During that

week, CYFS and Flynn would meet with Maureen and Hugh to review

progress and make future plans. If Mark was to return home there were

conditions: the parenting course, that Mark would remain at Parawai

School in Thames—a daily commute Thames-Paeroa, CYFS would

provide respite care, and that ‘a proper ADHD assessment’ be completed

by Health Waikato.

Maureen, Hugh and McLean all signed on 11 December a memorandum of

consent to the Christmas holiday arrangements.619 As to the other arrangements,

Maureen responded to McLean that she saw no need for the parenting course (and

Hugh was not even a party to these proceedings), the respite care with Brenda was

rejected as was the removal of both children, 620 she could see no point in having the

meeting while Mark was away, Mark did not want to remain at Parawai where there

were increasing concerns for his welfare and safety but to return to Tirohia in Paeroa,

and Dr Hanne was eminently qualified to make the ADHD assessment.621 A phone

conversation between McLean and Maureen over whether her draft affidavit included

comments about the CYFS restriction of access when the bail variation had explicitly

not required it ended with McLean telling her she could either accept his advice or

represent herself at the hearing in the Tauranga Court regarding Christmas access.622

This debate/discussion with the Auckland lawyers went on through the day on

Tuesday 11th.

Negotiations went on through 11 December over the access arrangements.

During this time, the Flynn/CYFS requirements for parenting and anger management

courses were apparently dropped.

A teleconference was held by the Family Court on the afternoon of Wednesday

12 December—it turned out that the three-day hearing had never actually been 619 Docs 872, 873. 620 NB this is a clear misreading of Flynn’s proposal which was only for Patricia to go for occasional weekends after the school holidays and for Mark alone to be sent to Kakes for one week. 621 Maureen Reti to Barry McLean, 11 December 2001. Doc 874. She attached copies of numerous certificates and testimonials relevant to her parenting ability. 622 Doc 877.

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planned for by the court anyway. In addition to the arrangements for Christmas

holidays in Flynn’s memorandum Maureen and Hugh attended in person and asked

for 3 points to be considered: Mark’s medical appointment in Auckland on 15

January, diversion of payments from Kakes to Maureen over the holiday period, and

Mark’s week away to be spent with Camellia Reti near Maureen’s instead of away

with Kakes in Turua so that it would appear to him to be a punishment. Flynn and

McLean attended by phone, Hollister-Jones sent an agent. Flynn argued that the court

had no jurisdiction to order payment diversion but herself undertook to talk with

CYFS about that. Flynn asked for Dr Hanne’s medical report on Mark, and McLean

was going to freely forward a copy of his, until reminded by Hollister-Jones’s agent to

follow his clients’ instructions’. Finally, after a year, Maureen and Hugh were

provided with a copy of Flynn’s report of 20 November 2000.623

Spicer telephoned and asked Maureen to bring her deposit book to CYFS so that

arrangements could be made for the allowances for the whole holidays.624 At the

meeting, though, he said CYFS would give only $40 per child per fortnight instead of

the $15 per day per child (= $210 per child per fortnight) hitherto. In writing, he

informed Maureen that CYFS did not transfer caregiver payments to the parent when

the children went to stay with the parent.625 He would, though, support her application

to WINZ for payment and CYFS offered her the appropriate family support at the

married rate, i.e. $85.14 per week while both children were in her care. He confirmed

the dates the children would spend with her and the week Mark would go away. By 17

December, Maureen had discovered that CYFS had told WINZ that the payment to

Maureen should be permanent as the children were being returned to her care, and

from WINZ that she should be being paid at a married rate.626

On 14 December 2001, in response to Spicer’s request of 23 November

regarding Mark and ADHD, Waikato paediatrician Dr Newman sent him copies of his

623 Hugh, personal notes, 13 December 2001, Doc 888. A later heated phone conversation between Hugh and McLean over the Hanne report issue resulted in McLean agreeing not to make the report available to Flynn, but not telling her it would be unavailable. Hugh asked why it was Flynn and not CYFS as custodian who was asking for the report. 624 Hugh, personal notes, 13 December 2001. Doc 888. 625 Tony Spicer to Maureen Reti, 13 December 2001. Doc 886. 626 Hugh, schematic diagram, 18 December 2001, p 6. Doc 893. Hugh was suspicious of this as, although it was remotely possible that CYFS was indeed intending to make the arrangement permanent without having told Maureen, he thought it more likely that they intended to blacken Maureen’s name with WINZ by saying now that the return was permanent but then taking back custody of the children so that it would appear in WINZ records as though Maureen had failed as a mother.

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letters to Dr Carroll and then to Hugh’s trial barrister, Gerald McArthur.627 This raises

issues of breaches of patient confidentiality and legal privilege. What right did Dr

Newman have to send Spicer these documents prepared specifically as

communications to other professionals for specific purposes? CYFS had asked for

information about Mark and whether the Service was entitled to that depends on its

rights under the custody orders then in force. This does not seem, though, to extend to

the specific documents that were sent to them—although that is Dr Newman’s breach,

if anyone’s, not one by CYFS. Dr Newman also noted that he himself had not

diagnosed ADHD, but Campbell Lodge and paediatrician Dr Elizabeth Allen had

done so—these would have been in addition to Dr Hanne, whom he overlooked, but

given that Spicer knew about Hanne these were two more authorities cited against the

Flynn/CYFS position.

CYFS agreed to Mark going to see Dr Hanne (whose identity they did not yet

know, but whose status as a registered medical practitioner they now did) as a day trip

only on 15 January, but refused to pay for the consultation. They had been told by

Flynn that they would be provided with a copy of the assessment.628 Flynn herself

faxed McLean ‘just chasing a copy of that report … [which] you were going to fax

through last Wednesday’.629

Potential for Ending the Dispute January-March 2002

In the New Year, Maureen and Hugh began to focus on legal action against

CYFS and others and began to instruct Edwards Clark Dickie in this regard. Chris

Dickie reiterated that the Family Court process would not allow for any such

remedy. 630

Dr Michael Watt, paediatrician at Ascot hospital, Greenlane, saw Mark on 17

January as referred by Dr Hanne. He noted that ‘The history is typical of a boy with

ADHD….’ and that ‘I would agree that Mark has clinical features consistent with a

627 Dr Newman to Tony Spicer, 14 December 2001. Doc 889. 628 Tony Spicer to Maureen Reti, 17 December 2001. Doc 891. 629 Flynn to McLean, 17 December 2001. Doc 892. 630 Chris Dickie to Hugh and Maureen, 15 January 2002. Doc 898.

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diagnosis of ADHD and ODD.’631 He prescribed a trial course of Dexamphetamine,

subject to CYFS consent.

The arrangements imposed by Counsel for Child and CYFS with regard to

Mark’s removal for a week from Maureen fell apart completely. Maureen and Hugh

took him back to Kakes’ in Turua on 14 January, they then picked him up and took

him to Auckland on 15 January and delivered him back afterwards. On Wednesday 16

January they went to the CYFS offices for the scheduled meeting, but then Flynn

cancelled it—why is not apparent, could she not attend? Half an hour this

cancellation, CYFS asked Maureen and Hugh to pick up Mark from the Kakes’ as

they were going away for a few days and could not take him. Mark was therefore

returned to Maureen for the remainder of the holidays after these three days of

disruption. 632

The meeting on 18 January 2002 was held between Maureen and Hugh, with

Wiremu Reti, Flynn and Tony Spicer, from 9:50am to 11:30am.633 They agreed that,

all things considered, ‘the focus of the meeting from all parties, was productive,

informative, and in the genuine interests of each child’. Regarding Patricia, it was

agreed that she be returned to Maureen as soon as practically possible while issues

regarding psychological influence being exercised over her were now irrelevant.

Maureen still wished for her to be returned to her full care and custody with no strings

attached. Regarding Mark, it was agreed that he should also be returned to Maureen as

soon as practically possible but Maureen agreed that he remain in CYFS custody for

another three months to enable the department to provide for his identified needs.

They agreed to provide the department with the medical reports from Dr Hanne once

they came to hand.

Hugh then wrote to Barry McLean and told him of the meeting, whereupon

McLean wrote to Hollister-Jones as counsel for CYFS seeking confirmation that the

issues were ‘substantially settled’.634

Tony Spicer in the CYFS report of the meeting noted that the agreed agenda was

to look out how best to facilitate the return home of both children. 635 He stated:

631 Dr Watt to Dr Hanne, 17 January 2002. Doc 899B. 632 Maureen and Hugh to Dickie, 17 January 2002. Doc 899C. 633 Hugh, Maureen and Wiremu Reti to Tony Spicer, 18 January 2002. Doc 901. It is rather difficult to tell from this what was agreed to by the meeting and what were Maureen and Hugh’s comments and requests. 634 McLean to Dickie, 21 January 2001. Docs 904, 905. 635 See Appendix B to Henwood’s affidavit. Doc 921.

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in my view these children should be returned to their mother. For them to remain away from their mother for any further length of time is getting into the area of further abusing them and punishing them. There [sic] time away from their mother certainly is not helping them become a stable and secure family unit. This raises the issue of whether having kept them so long had already been in

‘the area of abusing and punishing them’. What was the dividing line? Also Spicer’s

reference to his concern to create a stable and secure family unit is the first time any

such goal has been sighted in any of the CYFS documents to date. What then was

their overriding goal previously?

Spicer noted that physical abuse had been the cause of CYFS initial involvement

and he did not believe the children were in danger of being physically abused by

either Maureen or Hugh. Since Patricia was not at risk he questioned why CYFS

should retain custody of her in any form. He commented:

I tend to feel that the normal process of children returning home remaining in our care for a short period of monitoring and then the discharging of the custody order should be followed. While this [is] our normal process some discussion needs o be had along the lines of what do we hope to gain from continuing with custody of Patricia?

Clearly, Spicer personally did not believe that anything further could be gained—

assuming anything ever had!—and that nothing further could be learned from

retaining custody of Patricia.

As to Mark, Spicer believed it was also in his best interest to return home to

Maureen, given that the family were willing to accept that he remain in CYFS custody

for another three months. He clearly envisaged that several months’ extension past

that three months would occur but from the time taken to file and deal with the papers

discharging custody, rather than from urgent need for supervision, while the period

would give sufficient time for the situation to be monitored.

Social worker Kay Morgan produced a revised s 178 Care and Protection Plan

on 29 January (apparently after an internal CYFS case conference).636 This set out a

range of assistance to be provided by CYFS in respect of Mark which, amongst other

supervision, included:

• To arrange appropriate counselling

• To consult with SES and others to arrange speech therapy

636 Doc 907.

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• To resource counselling, speech therapy, and any vitamins and minerals

prescribed by a registered medical practitioner

This included various obligations on Maureen and Hugh too, such as forbidding

Lance to live full- time at home when he was released, attending meetings and

maintaining the various aspects of Mark’s care, finding him a new school, and

continuing the agreement not to use any physical methods of controlling or correcting

Mark.

On the same day, 29 January 2002, less than fortnight under two years since

Mark had been uplifted, CYFS wrote to WINZ telling them that Mark and Patricia

had both been returned to Maureen’s full-time care and that they should now be

included on her benefit entitlement.637 The children remained in CYFS custody,

Patricia until March 2002 and Mark to be reviewed in August. Hollister-Jones sent

McLean a letter outlining the agreement and that the plan would be presented to the

Family Court in March 2002.638 He also noted that counsel for child agreed with this

course of action and plan.

In early February, there was some progress in confirming the development of

the revised plans for presentation to the planned 4 March hearing. However,

simultaneously Maureen and Hugh launched a High Court action against CYFS and

various others who had been engaged in the process, filing an initial notice of

proceeding and statement of claim in the Hugh Court on 20 February 2002.639 Then

on 25 February 2002, representing themselves again as legal aid was not available,

they advised the Family Court of having filed these proceedings and set out both their

issues for the hearing and a summary of their various other concerns with CYFS and

the process.640

The social worker who supplied the affidavit on behalf of CYFS for the 4 March

hearing was supervisor John Henwood.641 He reported on 2001, that for Patricia ‘the

year proceeded uneventfully from the Department’s perspective and that there were

no significant problems with her behaviour—although of course there had been none

prior to 2001 either and to the cynical eye to comment thus without the prior

637 CYFS to WINZ, 29 January 2002. Doc 908. 638 Hollister-Jones to McLean, 30 January 2002. Doc 909. 639 Doc 917. 640 Doc 918, 919. 641 John Arthur Henwood, affidavit, 28 February 2002. Doc 921.

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comparison implies that there had been. As for Mark, he reported the continuing

difficulties with coping with him, especially at school.

Henwood commented: ‘The Department view was that we did not want to

“overload” his mother and Hugh Smith and set them up to fail. Maureen Reti did not

agree with this viewpoint.’ It may be noted that nowhere in the written material

viewed for the present report was there any such a charitable concern expressed

explicitly and it is hard to think of anywhere where it is implicit; the talk was all of

the care and protection the children needed (i.e. protection from Maureen) and

effectively of punishing her for her non-compliance with perceived requirements

relating to the criminal trial.

Henwood also stated: ‘Following access or holiday stays at home, neither child

has presented any difficult problems in their foster homes.’ Maybe so, but the oft-

repeated claim that Mark and Patricia were both more unsettled both in anticipation of

and after returning to school from access with Maureen was used frequently through

the second half of 2001 as areas for restricting Maureen’s access from June. This is

rewriting history so as to omit both Maureen’s alleged parenting failure and the

draconian CYFS response to it without conclusive evidence. Associated with this is

his statement that neither Maureen nor Hugh had reposted any particular difficulties

with managing either Mark or Patricia during access periods, yet, at the same time as

Dawson was restricting access in June, despite the court’s refusal to do so, because of

the children being disturbed, she was also saying she was doing so because Maureen

had reported Mark becoming particularly difficult. Once more, although Maureen is

presented in a more favourable light, the associated CYFS actions disappear from

sight.

He reported the visit on 4 December of the two social workers ‘as part of the

ongoing casework and planning’ and that they gained ‘additional information about

[Maureen and Hugh’s] circumstances and their perception and care of the children’.

One has to ask why was it left for 22 months for the social workers to make such an

assessment? Why was it not done in February 2000 instead of December 2001? If it

was so routine, why did the routine not kick in prior to the children being released for

any home access, especially unsupervised? Why did it not happen each time a new

social worker was assigned the case and needed familiarisation with the situation?

How hard was this to do when the CYFS office was just down the street?

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CYFS had completed a new CARES risk evaluation for Mark. The first was

done in March 2000, just after the upliftings, and portrayed his situation as of medium

vulnerability, with a high likelihood of a re-occurrence, of a high severity incident.

That of course might well be challenged if they had investigated properly at the time

and found out that given the context there was a very small likelihood of a re-

occurrence of the beating and that the incident was hard to describe as being of a high

severity given the medical reports of lack of enduring damage and the assault

acquittal. How do they then describe the numerous cases of vicious and prolonged

abuse? Anyway, the risk assessment was now of a medium vulnerability, somewhat

unlikely re-occurrence and low severity of future incidents.

Flynn and CYFS had held an internal case conference in late January 2002 and

concluded that there had been no further incidents of physical abuse, no presenting

problems associated with access, and repeated undertakings from both Maureen and

Hugh that there would be no more physical discipline, together with a number of other

positive conclusions accumulating over the previous months. One of these was

negative, the continued involvement by Maureen and Hugh of the children in the

proceedings and the children mirroring the parents’ concerns ‘which was assessed as

being emotionally abusive’. That is not the case; regardless of the appropriateness of

the involvement in the proceedings (and the ignoring of the children by their own

counsel and social workers) there was never a finding of ‘emotional abuse’ per se

against Maureen, let alone both her and Hugh. Pressure does not equate to abuse, and

no-one other than Orr in her contested report ever even began an assessment of the

extent to which pressure was being exerted.

The case conference had decided that Patricia could return home full- time, with

no further CYFS custody, subject to monitoring by CYFS and Flynn until the hearing

date in early March. It had also decided that Mark could return home full-time but

subject to the revised s 178 plan, especially included a continuing custody order in

CYFS favour for another six months before review. Henwood noted that Maureen and

Hugh had agreed to continuing CYFS custody for only three months.

Henwood described a positive start for Mark in his new school and

achievements around the home. He also did report that Maureen believed her efforts

to manage Mark’s behaviour had been disempowered by the CYFS intervention.

Presumably this was a further justification for allowing her to have freedom to do so

without intervention. He also noted other relevant developments concerning Mark, but

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the reports from Dr Hanne were not yet available. He gave four reasons for CYFS’s

applications for a further six-month extension of CYFS custody of Mark:

1. serious incident of maltreatment which led to these care and protection proceedings and intervention;

2. Maureen Reti’s long history as known to the Department; 3. assessments of Dr S Calvert and Kathy Orr that Maureen Reti may

have a personality disorder; 4. Maureen Reti’s history of past poor management skills in respect

of Mark. Each of those reasons may be queried on the facts and context. The incident was

less serious than CYFS had always claimed—i.e. that she had broken the law—and

was, in context, an isolated event that had never been repeated, as even Henwood’s

own affidavit admitted. Maureen’s ‘long history’ was mostly of attempts to gain

assistance for Lance and then Mark; any earlier alleged maltreatment had not been

sufficient to trigger any CYFS or other intervention at the time, or even any

assistance. Calvert and Orr had not made any such ‘assessment’; they speculated

based on the files rather than from any empirical testing or even personal knowledge

of Maureen and to keep going on about it like this sounds close to defamatory.

Maureen’s difficulties in managing Mark were linked to (a) the failure of CYFS and

others to provide meaningful support even when confronted with dire need, (b) her

personal inadequacies that she had herself taken steps to address over the years, and

(c) to Mark’s generally extremely problematic personality that meant everyone had

difficulty with him. Not everything could be shovelled off onto Maureen.

Henwood concluded by stating that it was CYFS’s view that having Lance back

in the home full- time, given both his criminal past and that he had ‘admitted to a

conflicted relationship with Hugh’—a hangover from Henwood’s previous encounter

with Maureen’s whanau when he conducted Lance to prison on his birthday—

‘significantly increases the stresses and risks for Mark and his family’.

In general, regarding this affidavit by a CYFS supervisor, it indicates the

readiness to dispose of the whanau from the Service’s books. But it also endorses and

presents to the court as CYFS evaluation and intentions the plan’s proposals for

ongoing support for Mark. Given that the Service agreed in February 2002 that Mark

required this and by proposing the plan was undertaking to the court to supply it, it

may be asked about the extent to which CYFS has subsequently complied with even

its own proposals. Hugh’s advice is that it has met none of the support objectives in

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this plan to this day. Given that actions speak louder than words, especially as

evidence of sincerity, such a failure undermines all the other protestations about

acting in the children’s best interests.

On 1 March, Cathy Flynn filed a memorandum with the Family Court

supporting the new CYFS plan, although at every step she was more grudging than

CYFS, raking up old allegations in a way that clearly indicates that she was doing so

because she had been convinced the situation could not continue rather than because

she wished to reunite the family.642 She reported having met with Patricia at Brenda

Reti’s home in December 2001 and that Patricia was ‘extremely distressed about the

length of time that she had been placed away from home’ and ‘quite despondent’ as to

whether the situation would ever return to normal. By this time, Flynn had become

aware of a shift in feelings in the children towards regarding Hugh more as their

father and not simply Maureen’s partner—on what basis did/could she make such a

comparison? Several times in para 13 she reiterated the speculations associated with

the Calvert and Orr reports, which Maureen and Hugh had still no t had an opportunity

to challenge or critique. Flynn stated that she had now concluded that to retain the

children in placement ‘had become more psychologically damaging of them than to

return them home despite the concerns that remain’. Basically, she said she was

forced to this because Maureen was already having more contact with the children

than Flynn had been aware of ‘and involving of [sic] the children in the proceedings

was continuing to occur whether she had the care of the children or not’—which was

hardly the case, particularly given the initial context of the evidential issue in the

criminal trial. Even when she reported that when she had met with the children at their

home on 28 February 2002 and that they both were clear about how happy they were

to be there (and she could see the positive change in Mark), this did not counter the

other long-repeated allegations about Maureen’s control over them and the ‘secrecy’

Patricia evidenced as a result. In fact, it was clear that Patricia had not wanted to

speak to Flynn and that Maureen had made her do so (and not in Maureen’s presence),

which might perhaps have been yet another suggestion to an open mind about Patricia

having the problem not so much with Maureen as with Flynn and CYFS who had

been, in her perception, punishing her for two years.

642 Cathy Flynn, memorandum, 1 March 2002. Doc 922.

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Family Court Hearing 8 March 2002

Late in the day on 1 March, Maureen and Hugh served CYFS with notice of the

new High Court proceedings. Subsequently, the attitudes of Flynn and CYFS became

less conciliatory when the hearing took place the following week.

The Family Court hearing went ahead on 4 and 5 March 2002.643 Hollister-Jones

again appeared for CYFS, Flynn for the children and Maureen and Hugh represented

themselves. The hearing was before Judge Inglis, who had not previously been

involved. He began by noting that until the week before all that would have been

necessary was a brief hearing dealing with the administrative points necessary to

implement the new plan, but that a two-day hearing had been made necessary by

Maureen and Hugh’s opposition to the custody order remaining in force in regard to

Mark.

A lengthy summary of aspects of the background was given. The relevance to

the situation under review at that time is not entirely clear, except insofar as a number

of factual errors and misperceptions on the part of the court once more portrayed

Maureen, or Maureen and Hugh’s arguments, in a negative light. For example, in para

6, the Department knew Maureen ‘from earlier experience’, but once more it was

largely because of her diligence in seeking for help for Lance, while the statement that

Mark was uplifted from home was not only plain wrong, but also enabled the

overlooking of the actual manner in which it was done. He more than once referred to

the initial declaration that the children were in need of care and protection having

been made by consent, whereas, as discussed above, that had not exactly been the

case. The judge noted that the criminal acquittal did not validate Maureen and Hugh’s

actions to the point of invalidating all of the subsequent CYFS reasoning and actions

and he concluded that on a broader view ‘there were difficulties within the home

which raised clear care and protection issues for the children’. He stated that what was

therefore called for was:

a much broader inquiry than simply whether the caning of Mark on the particular occasion was justifiable as domestic discipline. It involved consideration and assessment of a variety of matters which went far

643 Judgment of Judge Inglis QC, 8 March 2002. Doc 929.

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beyond what could be considered by the criminal Court under the rules of evidence which apply in that forum.

One wonders which ‘inquiry’ he was thinking of. If he meant his own one in this

hearing, then such an extended consideration beyond the criminal acquittal was

indeed made, however limited or inadequate in the circumstances of a two-day

hearing supposed to be dedicated to different issues. However, if he meant that the

situation in February 2000 required that CYFS investigate matters more thoroughly

than just the issue of the beating and its legality, then real problems arise. What were

the ‘variety of matters’ they considered? Did they stretch far enough? The issue of

CYFS saying they were going to ‘investigate’ at the time, and then making scant

effort to do so, has been discussed above, let alone their ongoing failure, together with

counsel for child, to do anything in that line until the 4 December 2001 visit to the

home situation and interview with Maureen and Hugh. He concluded that:

I am satisfied that, despite difficulties with various placements of the children, the Department did the best it could in this case within the limits of local resources. There is no indication in this judgment of the extent of evidence before Judge

Inglis relating to the historical development of the events, particularly the upliftings. It

may be noted, too, that he was only making his comments in relation to the placement

and perhaps the ongoing handling of the children. He did not comment directly on the

upliftings.

In the event, Judge Inglis refused to approve the CYFS plan. He ordered that the

existing custody orders be continued until the court altered them. He directed the

drawing up of a new plan which at a minimum continued the CYFS custody. He

extended Flynn’s appointment as counsel until further direction of the court. And he

granted Flynn leave to apply for an order placing the children under the guardianship

of the court.

What the reviewer of the documentary files knows nothing of in relation to this

hearing, absent actual minutes of the proceedings, is the way in which things unfolded

in the courtroom, how things were done, who said what, to whom and when, and so

on. As it appears from the way in which Judge Inglis perceived matters, he would

have approved the plan had Maureen and Hugh not launched the High Court action,

which he called an ‘extraordinary decision’ and one that ‘on its face suggests that the

mother’s and stepfather’s perceived grievances have become inflated out of all

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proportion’. Again, without knowing the full considerations that went into making

that decision to begin proceedings at that particular time, without waiting for the

outcome of the custody hearing, it appears to have been a huge tactical blunder, and

one made in the face of direct advice to the contrary from Chr is Dickie and perhaps

Barry McLean on a number of occasions in the previous few months. Judge Inglis was

particularly struck by the involvement of the children in the High Court action, and

noted especially that if, as Hugh had said, there were questions to be answered, there

were other ways of addressing them that did not involve the children—perhaps if one

of those other (unspecified) ways had been tried again he would not have made the

ruling he did. The High Court action and the use of the children as plaintiffs seem to

have been the point on which this judgment turned.

In the context of the concerns of the present report, it should be particularly

noted that in the judgment it appears that Hollister-Jones for CYFS maintained its

position of offering the revised plan as its preferred way ahead. From the judgment it

appears that the moves to reject the plan came from Flynn and from Judge Inglis’s

own perceptions of matters. The appeal statements from Maureen and Hugh paint a

somewhat different picture, that Crown counsel also argued for use of the

Guardianship Act to frustrate Maureen’s attempt to regain her children and to coerce

Maureen and Hugh to drop the civil action.

On 22 March, the children appealed to Flynn, as their counsel, for help to have

their grievances heard. This was done on an audiotape compiled in the presence of

two justices of the peace. Flynn once more ignored the children. 644

644 Hugh and Maureen, affidavit, 4 June 2002. Doc 956.

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The Guardianship Battle April 2002 and Two Developing High Court Actions

On 3 April 2002, Maureen and Hugh, still representing themselves, filed an

appeal in the High Court, Tauranga Registry, against the whole of Judge Inglis’s

judgment as being wrong in both fact and law. 645 They alleged inter alia that:646

• the judgment had failed to address their longstanding application to

discharge the custody order relating to Patricia;

• his emphasis on the separate High Court proceedings and opinion

derived from that was not an impartial assessment of facts to date, not in

the best interests of the children, and therefore an error in law;

• his allowing the diversion of the Family Court proceedings through the

introduction of the High Court proceeding without leave of either the

High Court or the plaintiffs;

• his curtailing of the scheduled three-day hearing apparently solely on the

ground that Maureen and Hugh had chosen to institute separate and

unrelated proceedings in the High Court;

• his opening the door to Crown agents imposing further on the family

solely because, in his words, Maureen and Hugh had chosen to ‘involve

both children directly in a civil claim against the Department’;

• his numerous errors of fact, many of which they listed.

The relief they sought was: the return of both Patricia and Mark to Maureen’s

custody since CYFS had proven unable to demonstrate having put in place anything to

meet the children’s needs other than what Maureen herself had initiated;

acknowledgement of the rights of both children to speak for themselves in any court if

they wished; and correction of the errors of fact and portrayal in the CYFS files.

On the same day that Maureen and Hugh filed their notice of appeal in the High

Court, Flynn filed in the Family Court an application for both children to be placed

645 Doc 934. 646 Doc 936.

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under the guardianship of the Family Court with the CEO of CYFS to be the Family

Court’s agent.647 She submitted inter alia that:

• Judge Inglis had determined that ‘both children clearly remain in need of

care and protection;

• Judge Inglis had listed various issues of concern to the court, particularly

relating to the involvement of the children in litigation, health and

medical intervention issues, and Lance living in the same house as Mark;

• Judge Inglis had refused to approve the CYFS revised plan

• CYFS was revising the plan to seek extension of the s 101 custody

orders and was also supporting he r guardianship application;

• The court order that the children be not involved in the High Court

action;

• That it be another 12 months before these orders be reviewed.

The application from Flynn is datestamped as received on 3 April 2002 in the

Waihi District. The notice to respondent concerning this application was signed by the

Deputy Registrar of the Waihi District Court on 13 May 2002 and it says that the

respondent has 7 days in which to file a notice of defence.648 Hugh’s notes indicate

that Flynn’s application was served on them only on 20 May and that therefore

Maureen and Hugh were denied the statutory 28-day period to oppose the application.

An outraged response from them was faxed to Crown counsel John Beaglehole on 21

May 200.649 However the second copy (doc 949) has written on it that it was only

served on Hugh on 28 May 2002 at 2:30pm (confirmed in their joint affidavit of 4

June)—was this a second copy served on Hugh another week after an initial copy was

served on Maureen? Later, in their submissions to the High Court, Maureen and Hugh

stated that Maureen was served by the Waihi Court bailiff on 17 May 2002.650 There

is some minor confusion about the dates here, but regardless of the exact situation,

some seven weeks is a huge length of time to omit to serve such an application.

Whose responsibility was it? Surely Flynn’s. Why was it not served by her at the

same time as it was filed? No information is supplied in the documentation. Was there

any prejudicial effect of this delay on Maureen, Hugh or the children? It at least

647 Doc 936A. She had written and signed it on 28 March 2002. 648 Doc 936A. 649 Doc 950. 650 Maureen Reti and Hugh Smith, submission, 8 July 2002. Doc 970.

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theoretically disabled them from legally challenging the application for guardianship;

the practical effect is less clear. It is certainly another straw in the wind that possibly

CYFS and certainly Flynn may not have been operating openly and ‘playing by the

rules’ to achieve their desired ends.

A conference was scheduled on the High Court action for 12 April 2002 before

Master Faire. The Crown Law Office in Wellington now replaced Hollister-Jones in

Tauranga and John Beaglehole began acting as counsel for CYFS. On 8 April,

Beaglhole negotiated a postponement until 11 July so that he might arrange in-depth

discussions between CYFS and Maureen and Hugh to gain a better understanding of

the issues involved before responding to the pleadings. Presumably some such

discussion took place shortly afterwards. On 2 May, having apparently forgotten the

amount of time Master Faire had given him to respond, Beaglehole made a second

contact with Maureen and Hugh but gave no indication to her either that he had

himself read anything more than the immediate case and Judge Inglis’s judgment, or

that CYFS were prepared to anything more than have a senior social worker review

the file once more and perhaps talk with them. This was the course they had proposed

last year and Chetwin for CYFS had rejected, insisting on the litigation in court.651

Beaglehole’s response was that he intended that the Department would find an

independent person to review the files, he had no access to any Family Court material,

the Department would meet with them to discuss ‘many aspects of what has happened

to Mark and Patricia’.652 He also stressed that as a matter of law, the District Court

acquittal did not mean the CYFS actions in regard to the children were without legal

basis, and neither would a court grant them any relief unless the CYFS actions were

‘radically’ at odds with a legitimate action by a right-thinking person, rather than

merely being different from how they saw things.

After receiving Flynn’s guardianship application on 20 May, Maureen contacted

Beaglehole, reminding him of his conciliatory approach on 13 May but contrasting it

with this new ‘bombshell’ delivered with the cooperation and support of his own

client.653 Flynn’s application explicitly stated that CYFS was reformulating the

revised plan ‘but supporting this application for the Family Court to take over the

guardianship of the children’. Maureen understandably regarded this series of events

651 Maureen Reti and Hugh Smith to John Beaglehole, 6 May 2002. Doc 940. 652 John Beaglehole to Maureen Reti and Hugh Smith, 13 May 2002. Doc 943. 653 Maureen Reti to John Beaglehole, 21 May 2000. Doc 950.

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as ‘playing psychological warfare with my children’s future, and the ir fundamental

rights to develop in a natural environment’. A notice of defence was filed on 24 May

in the District Court, Waihi.654 This was supported by an affidavit from Maureen that

much more concisely stated a series of issues relating to both the application and to

the basis on which it was filed, especially that the judgment giving rise to it was under

appeal. 655 She pointed out yet again that the consent to the initial declaration had been

purely that CYFS could provide counselling and assistance to the children—which

had never happened, CYFS failing entirely in that regard. Flynn raised the health

issues but it was only ever Maureen herself who had provided for these, while Flynn

had consistently opposed them, especially in relation to the ADHD assessments for

Mark. Further, all of this guardianship fuss derived from the children being involved

in the High Court action, yet the Crown itself, with Flynn’s active support, had

insisted on producing a younger Mark as their star witness in the criminal

prosecution—why was there now a double standard when Maureen and Hugh (and

Mark and Patricia themselves) wanted to do the same? The difficulty in the present

situation is in disentangling the role of Flynn from that of CYFS; even if Flynn was

indeed provably doing all that Maureen and Hugh believe and allege, on what basis

can responsibility for this be sheeted home to CYFS? Is it possible to argue that,

having been alerted from earliest days to the conflict of interest at a minimum, CYFS

management should have intervened to ensure that Flynn did not exert undue

influence over its social work staff through either membership of the Resource Panel

or personal intervention at key points?

Hugh and Maureen filed a joint affidavit opposing Flynn’s guardianship

application. 656 They argued that procedurally it should not be considered before the

appeal against the judgment on which had been based had been determined, and

reiterated many of the points, arguments and questions previously made. They pointed

out the length of time it had taken to serve the application.

CYFS formally entered the guardianship battle with a notice of defence signed

by John Henwood.657 He supported the guardianship application broadly. However, he

disagreed with Flynn’s statements that CYFS were reformulating the plan (he would

not until expressly directed by the court) and disagreed that the plan and guardianship 654 Doc 951. Hugh’s notice of defence was filed on 30 May 2002. Doc 955. 655 Maureen Reti, affidavits, 29 May 2002. Docs 952 and 953. 656 Hugh Smith and Maureen Reti, affidavit, 4 June 2002. Doc 956. 657 John Henwood, notice of defence, 6 June 2002. Doc 959.

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issue should be reviewed in twelve months’ time. He did not say why, whether he

thought the arrangements should be permanent from the start, or conversely whether

they should be for a much briefer period. However, this suggests some internal

disagreement over the nature of the guardianship. Why Henwood believed Judge

Inglis did not want a new plan is a mystery; his honour had expressly said there

should be a new one incorporating an extension of the custody orders as a minimum.

Maureen and Hugh applied to have the transfer the guardianship application out

of the Family Court to the High Court in Hamilton to be dealt with by Master Faire as

part of the whole block of proceedings.658 This was opposed by both Flynn and

Hollister-Jones (presumably for CYFS).

Flynn claimed that Judge Inglis had ‘effectively directed’ her to file the

guardianship application—a liberal reading of what appears on its face merely to be

permission for efficiency’s sake.659 She correctly noted that the situation was now

legally a mess with the various actions in different courts and asked for clarification

of her role in the ongoing process.

CYFS now appointed Kate Ridley, a senior social worker from within the chief

social worker’s team, to review the files of both children, on the basis that that team

was independent of the field social workers.660 Beaglehole would advise Ridley of

Maureen and Hugh’s request to meet with her. CYFS would also provide to Maureen

and Hugh copies of their files, which they were welcome to have reviewed by ‘other

people’. He sought their correction of information in the files but noted that

‘information is never deleted from a departmental record’ and that the two versions

would be filed together to ensure a complete record.

Another line of attack, through their MP Jeanette Fitzsimons, had also proved

unfruitful due to CYFS refusing to release file information. As noted above,

Fitzsimons electorate agent, Rosalie Steward, filed an OIA request in September 2001

for the file information. Louise Cairney, then Acting Practice Manager, confirmed

that the request had been received and would be processed within the 28-day statutory

period. After the period had expired without result, Steward contacted CYFS to be

told that Cairney had been replaced by Bruce Chetwin, and that CYFS would not

release the files because the necessary privacy clearance had not been provided, that

658 Docs 960 and 961. 659 Cathy Flynn to Registrar, 1 July 2002. Doc 964. 660 John Beaglehole to Maureen Reti and Hugh Smith, 5 July 2002. Doc 966.

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the comprehensive file had been viewed by Maureen’s counsel at an earlier time, and

that CYFS was not obliged to provide a copy to Steward.661 Steward met personally

with Chetwin on 1 March 2002 to discuss the case. Chetwin told her that ‘the Family

Court was unlikely to adopt the same approach’ as the District Court with regard to

reasonable discipline and resulting care and protection orders, that is that the criminal

acquittal was qualitatively different from such orders. Steward stated:

I concluded from the meeting that pursuing procedural breaches with the Department was unlikely to be fruitful in resolving the concerns that had been raised. I evaluated the core issue appeared [sic] to be a profound disagreement between CYF and the family, with the family seeing that they were engaging in necessary parental discipline, and CYF viewing that discipline as sufficient to warrant removal of the children. I was not able to evaluate the claims of Ms Reti and Mr Smith … in the absence of their file records.

This of course was the case throughout: no-one was able to evaluate those concerns

because CYFS refused or controlled access to the files, either directly as in this case,

or through providing self-exculpatory information when the Minster or others made

approaches and raised queries.

It may be noted that in Ms Steward’s written statement, she merely cites

Chetwin as having stated the difference between the approaches of the two courts

regarding the reasonableness of the discipline and its results. Subsequently, Maureen

and Hugh have maintained, including in submissions in the High Court, that what he

actually said was that having won in the District Court CYFS would ensure they

would never win in the Family Court, essentially a declaration of vindictive

opposition by CYFS for the sake of a vendetta against them. One assumes that they

have other evidence of this allegation than Ms Steward’s written statement here.

The social worker assigned to the children’s case was changed yet again in early

July 2002, this time to Coreen Smaller.662

On 8 July 2002, Maureen and Hugh filed a submission in preparation for the

scheduled High Court teleconference on 11 July.663 They rehearsed the various

communications they had had over the intervening three months and argued that this

showed that CYFS had failed to make reasonable progress to meet the deadline and

progress matters. They further asked the High Court to remove from the case both 661 Rosalie Steward, statement, 6 July 2002. Doc 967. 662 John Henwood to Marion and Mark Marriott and Mauren and hugh, 6 July 2002. Doc 968, 969. 663 Doc 970.

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Hollister-Jones and Flynn about both of whom complaints had been made to the

Family Court but never acknowledged. They sought a number of remedies addressing

a range of their concerns.

Three days later, Crown counsel Julia Black filed a memorandum in response to

the initial April material, but ignoring the latest one.664 She stated that the parties were

engaged in ‘settlement negotiations’, which seems rather stretching matters, and

pointed out that copies of CYFS were being made available to Maureen and Hugh.

She gave notice that the Crown would seek to have Mark and Patricia removed as

plaintiffs and stated that rather than combining the Family Court appeal matters, the

High Court had no jurisdiction to make such an order.

At the 11 July teleconference, Master Faire noted the various background and

procedural matters and that the plaintiffs wished to proceed without delay, while

CYFS wanted a short period ‘to explore thoroughly a resolution of the issues in a

three-stage process including both sides reviewing the files and meeting by the end of

August. He allocated a half-hour teleconference to 13 September 2002 to check

progress towards resolution or deal with other procedural matters.665

Apparently there was a teleconference on 30 July before Justice Salmon relating

to the transfer to the Hamilton High Court. There is no documentary record in the file

of what took place, despite a subsequent letter from Hugh asking the Family Court

registrar to take particular note of various paragraphs in Justice Salmon’s minutes and

rulings. Given subsequent events, it may be assumed that one of those rulings was that

the case was to be transferred to Hamilton. Or perhaps not. Or perhaps not entirely.

Flynn at some stage apparently requested a Family Court judicial conference seeking

directions regarding her role in the High Court.

This judicial conference apparently took place on 12 or 14 August before Judge

Neal. The result was a decision to appoint a separate senior counsel to assist the court

with possibly mediating. Mediating what and between whom is not known, the file

contains no record of this conference either. Crown counsel’s later portrayal was that

the new senior counsel was ‘to assist this Court to consider the various outstanding

applications and to report to the Court with submissions as to what could be deatl with

having regard to the ourtstanding appeal’.666

664 Doc 972. 665 Doc 973. 666 Crown counsel submission, 28 January 2003. Doc 1003.

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On 15 August 2002, Kate Ridley, together with Kirsten Tremewan of the

Ministerial Unit of CYFS reported on their review of the CYFS files. The file contains

no copy of this review in the appropriate order although it was cited in Maureen and

Hugh’s memorandum of a week later.

On 19 August 2002, Maureen and Hugh filed a memorandum in the Hamilton

High Court in response to Justice Salmon’s directions of 30 July.667 This dealt with

the grounds for opposing the reappointing Cathy Flynn as counsel for child and Greg

Hollister-Jones as counsel for CYFS in relation to this appeal. Their behaviour was

dealt with in detail, particularly as it related to both the criminal case and the more

recent Family Court hearings, especially that before Judge Inglis. Repeatedly, they

argued that the various actions were done without any particular knowledge or in any

way in the best interests of the children but were instead solely directed to an

antipathy held against Maureen and Hugh personally as an entirely adult agenda.

There was another Family Court judicial conference before Judge Neal in Waihi

on 6 September. He directed that ‘the review’ [of the applications?] proceed, that

CYFS file an updated plan by 1 October 2002, and that the defendants’ application to

discharge the s 101 custody not be dealt with until the high Cour5 appeal had been

heard.668

On 11 September, there was a judicial conference before Justice Hammond in

the High Court in Hamilton, resuming the 30 July conference before Justice Salmon.

Apparently Justice Hammond was unimpressed enough by the situation as presented

to him by Maureen’ and Hugh’s 19 August memorandum that he sent a judge’s note

to the Family Court instructing that court to resolve matters within one month and

reserving a 4 December hearing date in the High Court if Family Court matters were

not actually resolved. No documentary evidence about this is on the file at this time.

There is one part of the minute quoted elsewhere where the judge expressed concern

about the delays and vicious cycle. Notably, he did not here blame Maureen and Hugh

for it as CYFS would later do, but CYFS itself, at least for dilatoriness if not actual

stonewalling:669

I do not see how this appeal could satisfactorily proceed until it is known what the final decision in the Family Court is. But the Department is, I think, probably marking time pending the disposition of this appeal.

667 Doc 976. 668 Crown counsel submission, 28 January 2003. Doc 1003. 669 Crown counsel submission, 28 January 2003. Doc 1003.

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Apparently once again there was a discussion held at the CYFS office in

Hamilton, attended by Maureen and Hugh, together with Beaglehole from Crown Law

and Zoe Griffiths who was an internal CYFS lawyer from Head Office in Wellington.

Hugh’s commentary states that while on the one hand disparaging their claims did

offer them something more like $20,000 as a possible settlement. Maureen and Hugh

did have Garth O’Brien, a Te Awamutu lawyer, present as a witness, but he seems not

to have taken an active role.670 There is no documentary record of this conference on

the file.

Subsequently, there were in September 2002 at least two letters relating to the

proceedings written by Crown Law, but these are not in the file. Nor is the letter of 25

September from Cathy Flynn, or Henwood’s supplementary report of 27 September

2002, referred to in Judge Somerville’s judgment.

The Family Court Discharges Custody Orders October 2002

On 1 October 2002, in the Waihi Family Court, Judge Somerville discharged the

custody orders for both children and the application for the guardianship order was

withdrawn, along with Maureen’s earlier application concerning the custody orders.671

It is not stated as to who applied for the discharge of the custody orders, whether it

was Maureen’s longstanding application or a new one from CYFS itself. Henwood

had reported that the only way of resolving the family’s antagonism towards the

Department was to remove the children from the home and impose strictly supervised

access, but he agreed that this would not assist their ongoing emotional wellbeing.

The earlier concern about Lance had not materialised. Much of the concern regarding

litigation in the High Court would be removed by the rescinding of the custody orders,

which would leave only the civil action alive, which was subject to negotiation. Flynn

had conceded that ‘there is very little that continuation of the legal custody of the

Chief Executive … can offer positively to these children’.

Hugh and Maureen applied to the Family Court on the same day for $9044 in

costs relating to the appeal and other avoidable costs since the 4 March hearing. 670 Doc 977A. 671 Doc 980.

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Apparently this was later declined on the grounds that costs were traditionally not

available to lay litigants. The lengthy CYFS submission opposing their being paid any

costs stressed that being lay litigants they had not incurred legal costs, as they had

represented themselves, that their job title was voluntary trustees, and especially

blaming them for the ongoing legal action after 8 March (picking up on Judge Inglis’s

focus on their having begun the High Court action).

There was no reference in the judgment to Justice Hammond’s intervention.

Clearly the prospect of High Court litigation was worrying both CYFS and Flynn, and

possibly Judge Somerville as well. But without any of the contributing documents or

records of the court’s sitting it is impossible to tell just what was moving whom.

On 4 October 2002, John Henwood wrote to Mark and Patricia to tell them that

CYFS was no longer involved in their custody and wishing them all the best for their

future.672

Continuing High Court Litigation and ACC Application

Beaglehole wrote on 18 October seeking particularisation of the statement of

claim and proposed settlement. Simultaneously, he made an interlocutory application

to the court that these and the particulars of the claim be improved.673 He commented:

If, after reading that letter, it seems that you and the Department are not too far apart, the Department may wish to meet with you and continue settlement discussions. If, however, the parties are a long way apart, those discussions would be a waste of everyone’s time. He indicated his understanding was that they had three particular areas of

concern:

• The continued presence of false information on the Department’s files;

• Lack of accountability within the Department; and

• Compensation, which might not necessarily require payment of money.

Maureen and Hugh’s detailed responses of 29 October (Docs 984 and 984A)

answered the points raised in the Crown letter and made a number of suggestions

672 John Henwood to Patricia Marriottt, 4 October 2002. Doc 982. Note that there is no copy of any similar letter to Mark. 673 Doc 983.

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relative to how the issues might be resolved, including the sealing of the misleading

CYFS files and the use of Crown-owned facilities (including the Paeroa hospital site)

for youth programmes, as well as money payments in compensation. The second of

these documents was an 84-page response—complete with index—to the Crown

questioning regarding details.

Beaglehole at 4:30pm provided on 11 November a memorandum for the

conference to be held at 9am on 12 November.674The Department was still concerned

about the involvement of the children in litigation, but accepted that since the only

way of preventing that was to remove the children it would make no application in

respect of them. Since there had been to- ing anf fro- ing over particulars, the

particulars in the 29 October response now remained outstanding and required

allocation of a date for hearing. Apparently he was acknowledging implicitly that the

parties were too far apart for a negotiated settlement.

Master Faire on 12 November directed how Maureen and Hugh were to respond

to the Department’s requests for further particulars.675 He worked through five of the

key issues and stated plainly what was needed. He also adjourned that conference

until 11 December in the hope that they would by then be able to instruct legal

counsel and respond to those particular points.

Later that month, Dr Carroll, the family’s GP from Paeroa, submitted to ACC

claim forms for counselling for both children. 676 For both of them she wrote that they

had suffered ‘neglect and lack of supervision by CYFS while under their care and

protection. For Mark she added ‘beaten by foster parent’. For Patricia she added

‘medical examination with limited consent and understanding’, and ‘mental trauma

from placement in foster care’. On 4 December, these claims were returned to Dr

Carroll by ACC on the basis that the Sensitive Claims Unit covered only claims for

mental injury ‘that result directly from an event of sexual abuse and/or sexual

assault’.677

Maureen and Hugh advised the Hamilton High Court that they ‘wish to abandon

the Appeal’ on the basis that the main substance of the matter had been completed and

further action was ‘no longer required’.678 Mistakenly the court record was

674 Doc 985. 675 Doc 987. 676 Docs 988, 988A, 989. 677 Doc 992. 678 Maureen Reti and Hugh Smith to Registrar, 30 November 2002. Doc 991.

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subsequently entered and signed by Justice Harrison as ‘Appeal dismissed’, an

entirely different outcome and inaccurate.679 They were then advised by Deputy

Registrar Andrew King who had signed the certificate that only a judge could alter

that record and that they would need to retain a lawyer to have it done.680

The 11 December conference before Master Faire had to be adjourned yet again

as, one month after they had applied for legal aid, Maureen and Hugh had still had no

response.681 The Master directed the court’s minute be forwarded to the LSA and

thought that it was unfair to address the particulars of pleadings until they had

counsel. Also to be researched and considered was the request from Maureen and

Hugh to be represented by Dr Mauheni as a ‘Maori agent. He adjourned the

conference until 13 February 2003, although in the knowledge that Hugh might have

to be absent in the UK.

Hans Laven, the psychologist who had given evidence regarding Mark in the

criminal trial, was asked by Maureen and Hugh to assess the effects on Patricia of

having been uplifted by CYFS and then separated from her mother over the

subsequent periods.682 Much of the content of his findings and conclusions has been

incorporated where appropriate above. He reported Patricia as being cooperative with

him, because, she said ‘in two and a half years we haven’t had the opportunity’.

His overall conclusion after what was a focused assessment, not comprehensive,

was that Patricia was suffering from post-traumatic stress disorder ‘resulting directly

from one or more of her experiences related to the upliftings’. Associated with this

were enduring damage to her relationship with Mark, irreversible loss of trust in

medical practitioners and officialdom, and developing depression. He summarised:

From Patricia’s narrative key factors contributing to Patricia’s distress and ongoing problems appeared to include a lack of information and explanation about what was happening and why, and the invasive medical assessment of her sexual organs without preparing Patricia for this, attempting to obtain her permission, or providing subsequent support or debriefing opportunity. Many other factors played a lesser but significant role in making the uplifting and separation from her mother unnecessarily traumatic for her. These included placing her in an overcrowded house, providing little or no monitoring or direct observation of her adjustment and safety at the placement, providing her with little opportunity to discuss her feelings and experiences with those making decisions about

679 Doc 998. 680 Doc 1007. 681 Doc 993. 682 Hans Laven, report, 3 December 2002. Doc 995.

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her, uplifting her on her mother’s birthday, and allowing her to view emotionally dangerous correspondence without providing support or explanation about what she read. It takes no great insight to see that these were exactly the concerns that Maureen

had raised month after month and in every possible forum in order to have Patricia’s

situation resolved (let alone Mark’s) and that they had been scorned and ignored by

both CYFS who had direct responsibility for Patricia ’s wellbeing, and Flynn who

almost never contacted the children whose lives were in her hands. This was produced

by an independent psychologist, who had never met Patricia before, who detailed her

appearance and actions as she spoke, and who had no connection to CYFS or

association with the network undergirding the CYFS uplifting, placement and care

and protection process.

This interview strikes the reader as a central document in the whole saga. It is

the only time we have Patricia’s voice and expressions coming through unequivocally

without adult assistance (some of the letters may well have been written by her

unaided but suspicion will always have attached to them as having been written with

some of that assistance, or at least to address adult concerns etc). Here admittedly she

had been taken to Laven as a means of producing evidence to put before the court, but

Laven was a trained and very experienced observer, he was independent of either

CYFS or Maureen and Hugh, and he reports not just words that might have been

parroted if put on paper but also the emotional context in which Patricia uttered them.

This is what Orr did to some extent also, but as is clear from the discussion above

Orr’ work and report is flawed for a variety of reasons. It might be objected once

again that Patricia was reflecting Maureen’s/Hugh’s ‘brainwashing’, but there is not

in this situation merely an emotional flatness that Orr et al took for secrecy and

mothering the whanau, but a deep and obvious emotional response to events that had

traumatised the girl, while Maureen was not present at the interview to coach her as it

was alleged she had earlier.

Laven’s assessment/diagnosis was entirely different from that of Orr, but his

strikes the reader as being rather less speculative and more attuned to the flow of

events and what might be thought a more reasonable explanation. His emphasis is on

post traumatic stress disorder, and he enumerated the events that appeared to have

caused it, singly and cumulatively, in the paragraph quoted just above. He added a list

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of symptoms that appear not to have been observed by Orr, although they must have

existed at the time:

• developing depression,

• symptoms of PTSD

• damaged relationship with Mark

• social, self-confidence, body image and addiction difficulties

• loss of trust in others, especially officialdom, social institutions and

medical practitioners. Of this damage, Laven observed: This was

unlikely to be changed through any known treatment. Unfortunately such

attitudinal shifts will increase Patric ia’s risk of antisocial activities, gang

and fringe group involvement.’ It will be apparent whether his fears have

come true another 2+ years down the track.

It may also be noted that within ACC Claire Doherty of the Sensitive Claims

Unit was also impressed by Laven’s report and other accounts of events (especially

from Maureen) to the extent that she concluded:683

It is obvious that Patricia and her family have had a very traumatic time and that there are a number of issues outstanding for them…. From this phone conversation and reading the documentation it is clear that Patricia found this incident very abusive and has suffered some mental injury as a result. As ACC did pursue the matter in relation to the claim for counselling for

Patricia, on 13 March, John Henwood excused CYFS Paeroa from providing Ms

Doherty with its files relating to Patricia on the grounds that they were actually at the

Crown Law Office in Wellington and that therefore there was ‘some difficulty

locating all the information you requested’.684 The response from Dr Clements came

via a Wellington barrister, who advised ACC to gain ‘the entire Family Court file’—

and then provide her (the barrister) with a copy to discuss with Dr Clements.685 Many

of the documents over the next couple of months relate to this ACC claim,, and CYFS

providing, or not providing, full documentation. The ultimate results was that on 9

May 2003, ACC declined to accept a claim and pay for counselling for Patricia

‘because ACC have been unable to determine whether a criminal offence occurred as

683 Claire Doherty, internal memorandum, 21 January 2003. Doc 1001. This issue for ACC though was whether it could handle the claim under its statutory categories, which is a different issue. 684 Henwood to Doherty, 13 March 2003. Doc 1011. 685 Gaelene Phipps to Claire Doherty, 25 March 2003.

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described in Schedule 3 of the Injury Prevention, Rehabilitation and Compensation

Act 2001’.686 One of the elements required was that there had been a criminal offence,

which was always going to be tough to prove to a sufficiently rigorous degree given

that the medical examination had been requested by CYFS, at least some degree of

consultation/information had been provided, and Maureen was present if unwarned.

In the Tauranga Family Court Judge Neal declined Hugh’s application for costs

in a decision delivered on 12 May. 687 He stated that there was an established rule that

a lay litigant is not entitled to costs except in exceptional circumstances, although the

court has discretion to allow disbursements. He also noted that Maureen’s legal aid

had been discontinued in 2001, but made no more of that in terms of why the two had

represented themselves. He understood wrongly that the appeal had been dismissed by

consent of the parties—a significant point as it had actually been vacated by the

appellants, Maureen and Hugh, to end ongoing litigation. Given that Judge Somerville

had discharged the custody orders, for the reasons she gave, Judge Neal could not see

exceptional circumstances justifying an award of costs—this was presumably the

CYFS point that in such cases there were not clear winners and losers. Nor could that

court make an award for costs related to the appeal.

Master Faire held a telephone conference on 14 May 2003, in which it was

agreed that Maureen represent the interests of the two children. By now Maureen had

another counsel, barrister Graeme Minchin of Auckland, and he was to provide a

properly particularised statement of claim by 24 June.688 On 5 June, Minchin applied

for civil legal aid.689 He summarised the background history. Amongst other points,

he commented with regard to Patricia that:

To subject a girl of this age to a compulsory vaginal examination where there was no evidence or even any allegations of sexual interference is sexual abuse in itself and that it was a complete abuse of process to subject her to this in a desperate attempt to get something on her parents. Legal aid was deferred until there was filed in addition a statement of defence,

psychological reports for all 3 plaintiffs establishing damage caused, and copies of the

686 Claire Doherty to Maureen Reti and Hugh Smith, 9 May 2003. Doc 1024. 687 Judgment, 12 May 2003. Doc 1027. 688 Docs 1029, 1030. 689 Graeme Minchin to Specialist Unit, LSA, 5 June2003. Doc 1031.

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judicial decisions on which Minchin was relying to establish that a prima facie case in

negligence and misfeasance in public office existed.690

Minchin duly filed a statement of claim on 24 June. On 11 July, John

Beaglehole for CYFS responded with an 18-page notice for further particulars.691

These ranged from the names of agents of CYFS involved in specific events, through

to an inquiry as to what duty of care CYFS owed Smith as fourth plaintiff. Other

correspondence went on between the two lawyers and they jointly asked for the 16

July teleconference to be deferred, which Master Faire duly did, until 8 September.

Hugh had not, however, been consulted by Minchin—did Minchin assume that he was

representing them all, or that telling Maureen was adequate consultation with Hugh,

or that he had no need to consult with any of them?692 In any case, Hugh replied with

a detailed response to the questions, pointing out that for very many, almost all, of

them, the information had already been provided in previous statements of claim and

elsewhere.693 Preceding those answers, Hugh argued to the Master that this was

merely a self-serving ploy, that such questions required immensely detailed

knowledge of the convoluted case which Minchin could not be expected to have

within the one week that Beaglehole allowed him, and that an earlier version of them

had required 153 hours of effort from himself and Maureen who knew matters well.

He also pointed out that Crown counsel had been in possession of the CYFS file

containing most of this information for over a year since they had launched the High

Court appeal after March 2002. Moreover, Crown counsel also had the benefit of an

internal departmental review, several communications with the plaintiffs since, a full-

day meeting with Maureen and Hugh, and the c60-page response of 29 October 2002

to the Crown’s first notice for further particulars.

Beaglehole responded on 22 August 2003, suggesting that Hugh file his own

statement of claim, detailing his particular issues, and fo llowing Minchin’s example in

structure and format.694 Hugh filed on 1 September his own 31-page statement of

claim, of which pp 24-31 related to his causes of action (negligence, breach of

fiduciary duty, and misfeasance) and the relief he sought.695

690 Tracey Meredith to Graeme Minchin, 26 June 2003. Doc 1035. 691 Crown counsel, notice, 17 July 2003. Doc 1036. 692 Docs 1038, 1039. 693 Hugh Smith, memorandum, 25 July 2003. Doc 1041. 694 Doc 1044. 695 Doc 1046.

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Beaglehole also corresponded directly with Minchin over the content of the

statements of claim. On 10 July 2003, he made comments on the second amended

statement of claim.696 They began with suggestions about how properly to refer to the

children, but moved on to saying that he believed that references to what took place

during a FGC were barred by ss 37 and 38 of the CYPFA and should be removed. He

also pointed out that a misfeasance cause of action was both serious and had a high

threshold, requiring proof that the individual concerned believed or suspected that the

action taken was outside their powers of office and went ahead anyway, knowing that

harm or loss was likely to be occasioned to the plaintiff. He advised that unless full

particulars of these allegations could be provided the ‘proper thing to do is to

withdraw them. I trust this can be done informally, without the need for the court’s

intervention.’ The reader notes that Beaglehole’s advice, if accepted, would obviously

work to his client’s advantage in a significant way. Counsel may like to consider how

proper, reasonable, and usual such advice might be, or whether it constitutes undue

interference in the plaintiffs’ presentation of their case.

Crown counsel Una Jagose took over the Crown case and filed a memorandum

on 4 September in which she sought for the appointment of a litigation guardian for

the children according to the new High Court rules.697 Ms Jagose flagged that she was

considering seeking security for costs, a potential threat to the plaintiffs and warning

to think carefully before continuing. She also complained of the inadequacy of the

particulars in the statements of claim regarding the allegation of misfeasance and also

asked the court to direct Hugh to produce his own statement of claim that dealt only

with his own issues instead of incorporating them with those of the other three. There

was still ongoing dispute over exactly who the defendant should be with Crown

counsel arguing that it should be either CYFS itself or the Attorney-General, not

CYFS Paeroa or the CEO of CYFS. Further requests for further particulars continued

to be sent, notwithstanding that many had already been answered elsewhere or in

other documents. An issue arises here as to the extent that this was reasonable legal

practice requiring a reasonable legal standard of documentation, or mere harassment.

At a hearing on 8 September 2003, Master Sargisson dealt with the case.698 He

concluded that Crown counsel needed to spell out to Hugh what was required with his

696 John Beaglehole to Graeme Minchin, 10 July 2003. Doc in Graeme Minchin’s box. 697 Doc 1047. 698 Minute, 8 September 2003. Doc in Graeme Minchin’s box.

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pleadings and that if she was not satisfied then she needed to file an application to

strike out. He also set out a timetable for further pleadings/statements etc and

appointed Maureen as litigation guardian for the two children.

Meanwhile, Hugh was adjudged bankrupt on 18 September 2003, after filing for

voluntary liquidation. 699 This business collapse and resultant destruction of other

aspects of Hugh’s life were in large part attributable to the demands placed on him

and his finances by the struggle against CYFS and the other problems thus generated

in their lives.

On 9 October 2003, Graeme Minchin for Maureen and the children filed a

memorandum stating that there had been no new more explicit statement of claim o

the ground that the renewed defence request was ‘oppressive’ given the 3 amended

statements already filed and matters already dealt with in them. The lack of a

statement of defence was also hindering the plaintiffs’ discovery. 700

On 13 October 2003, Master Faire directed that any further Crown application

for particulars or fuller statement of claim had to be filed and served by 20 October

2003, any notice of opposition from Maureen and Hugh by 3 November, and a

telephone conference on 14 November regarding making a fixture.701

The Crown counsel’s response by now was to move away from questions

regarding ‘brute facts’ and to seek statements of evidence regarding CYFS workers’

states of mind, intentions, duties of care, improper purpose, dishonesty and so on. 702

She also advised that unless the children and Maureen were legally aided she would

seek security for costs.703 In context this can also be seen as a subtle pressure on the

litigants to drop the action for fear of financial consequences, or even forcing them

out in advance if they could not provide that security. Although thus threatened by

her, it does not appear that any such order was made by the court.

Master Faire directed on 14 November 2003 that a backup fixture for 4.5 hours

be set down for 11 December 2003 and a firm fixture for 11 March 2004.704

On 19 December 2003, Mr Clinton Light of Dispute Resolution Services Ltd,

(Hugh says it is a wholly owned subsidiary of ACC) gave a decision rejecting ACC

acceptance of the claim for counselling for Patricia. His actual decision is not in the 699 Doc 1050. 700 Memorandum in regard to directions, 9 October 2003. Doc in Graeme Minchin’s box. 701 Doc 1059. 702 Doc 1060. 703 Una Jagose to Graeme Minchin, 4 November 2003. Doc in Graeme Minchin’s file. 704 Doc 1064.

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file. However, it appears that at one point Light stated: ‘I agree that Patricia should

receive treatment’. Despite that finding, he apparently relied heavily on the fact that

no crime had been proven, a position which Maureen and Hugh stated ignored that the

Victims of Offences Act s 2 provides that conviction of an offender is not a pre-

requisite to classifying a person as a victim. He apparently also restricted himself to

the explicit provisions of ‘the Act’—which Act?—rather than to more general

consideration of potentially relevant legislation. Should and could he have considered

more than the legislation specifically controlling ACC? Maureen and Hugh appealed

against Light’s decision to the District Court in Hamilton, and somehow involved the

Central Registry of the Accident Insurance Appeals Tribunal.705 According to Hugh’s

commentary in late May the District Court in Te Awamutu upheld Light’s decision in

favour of ACC’s rejection of the claim, but he did so on the ground that no offence

had been proven and acknowledging that he was obliged to consider the matter within

very constrained boundaries. As they were still without legal aid assistance, Hugh had

once more been required to try to present the case by himself.

Going backwards and forwards regarding the statements of claim and the

Crown’s alleged inability to file statements of defence because of the claims’

inadequacies, continued through the first half of 2004, complicated by the failure of

the Legal Services Agency to approve legal aid, while their assisting lawyer, Mr

Minchin, had to withdraw. On 11 May 2004, Master Faire directed that the Crown file

statements of defence by 14 June 2004.706 However on 18 June Crown counsel once

more tried to blame their failure to respond by the state of the plaintiffs’ pleadings. At

a case management conference on 13 July, Associate Judge Faire had now tired of the

lack of progress and clearly had lost much patience with the universal opposition

Maureen and Hugh were encountering. 707 He rehearsed the length of time since the

events began and the proceedings were first begun and indicated unequivocally that

he believed there was a prima facie case to answer. On this matter, he stated:

The subject-matter of this proceeding, in my view, requires an airing in Court. Whilst I am in no position to comment on the financial position of the plaintiffs, so far as the need to have the issues properly defined and determined by a Court are concerned, I confirm the view just expressed that that is clearly desirable.

705 Docs 1070, 1071, 1072, 1074, 1075, 1075A. 706 Doc 1077. 707 Case management conference, minute, 13 July 2004. Doc 1079.

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He therefore encouraged’ those making the legal aid decisions to ‘urgently

consider’ the file and ‘issue the appropriate decision’, which to his mind was clearly

that of providing the aid to advance the case. As to the issue of legal representation,

especially for the children, he advised all parties, including the Crown, that the Court

was not far from appointing a lawyer to act for the children and require the Crown to

pay the resultant costs under the Judicature Act 1908 s 99A. He did not accept the

Crown excuses for ongoing delay and directed it to file statements of defence it

already had drafted within two days so that new counsel for the plaintiffs could deal

with it and all could respond for a new conference on 9 August 2004. These

statements of defence were faxed to the court on 15 July.708

An evaluation conference was held by telephone before Associate Judge Lang

on 6 September 2005.709 Now Charl Hirschfeld represented the plaintiffs. Continuing

difficulties with legal aid meant amended statements of claim could not yet be filed,

while the fact that Hugh was a bankrupt meant that clarification was required as to

whether his claim vested in the Official Assignee and whether Hugh could therefore

continue. By consent, the judge directed that the amended statement be filed by 30

January 2005. It was also required that a verified list be prepared so that the scope of

discovery could be properly assessed by the Crown. The next telephone conference

was to be held on 2 February 2005.

708 Doc 1080. 709 Evaluation conference, minute, 6 September 2004. Doc 1083.

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Alleged Conflict of Interest

This is an issue that is touched on throughout the story. However the matter is

focused more sharply here.

There is a prima facie conflict of interest. Hugh’s application for resource

consent to use the Paeroa Hospital for his therapy centre was not consented to by Te

Runanga a Iwi o Ngati Tamatera. Runanga Secretary Ms R.R. (Winnie) Brownlee

wrote to Hugh on 9 May 1998 explaining that the Runanga had previously sought the

return to the tangata whenua of the property on the basis that land given under tuku

whenua should be returned if it were not being used for the purpose intended by the

original gift. The local hapu, Ngati Tawhaki, had applied to have the establishment

and use it as a community clinic when Health Waikato had removed its own

operations (citing the buildings’ non-compliance with safety standards and the

difficulty of raising them to meet these). Ngati Tawhaki and their proposals, similar in

aim to Hugh’s, had been merely ignored by both Health Waikato and DOSLI, which

was then administering the site. Ms Brownlee therefore conveyed the hapu’s refusal to

consent to Hugh trying to do what they had been unsuccessful at, although he did

invite Hugh to consult further with them.710 Winnie Brownlee was at the same time as

this correspondence, and subsequently through the period of the remova l of Mark and

Patricia, a member of the CYFS Resource Panel in Paeroa.

Hugh submitted revised proposals to Ngati Tawhaki on 28 May, which proposed

more of a partnership arrangement with the hapu. Two months later, on 16 July, John

McIver replied, saying that although they were concerned it was ‘too good to be true’,

they were prepared to support it as they recognised they needed the experience they

would thus gain. 711 He suggested further discussions towards drawing up a strategic

plan, but insisted that only that hapu were entitled to be dealt with over the land and

thus the project, and if there were any claims to the contrary they should be referred to

Ngati Tawhaki. John McIver was also the Chairman of the CYFS Resource Panel in

Paeroa and Council Iwi Liaison Officer.

710 R.R. Brownlee to Hugh Smith, 12 May 1998. Doc 28. 711 John McIver to Hugh Smith, 16 July 1998. Doc 43.

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The third person with a prima facie conflict of interest was Cathy Flynn. Not

only was she appointed counsel for the children, but she was a member of the CYFS

Resource Panel in Paeroa. Her position became increasingly compromised, as did that

of the others, as the panel encouraged the Police to pursue the criminal assault

charges, and the CYFS Paeroa Office protracted the holding of the children.

Hugh’s opinion as to how the conflict was impacting the situation with the

children was set out in an explanatory letter to his Tauranga barrister, Gerald

McArthur:712

[McIver and Brownlee] have had an ongoing jealousy with me since I leased a building which sits on land subject to a Maori Claim. These two people fuelled by Cathy Flynn (also a CYF Panel members) or vice versa, have had the nerve to influence the Police charges, and use their power, at the expense of Maureen’s children, in an attempt to get back at me. It is why Cyf, Paeroa have continually refused to accept the professional diagnosis of ADHD as applied to Mark. It is why Lynette O’Boyle had been influence to decide that Maureen had ‘little to answer for’ and it is why she was talking ‘plea bargaining’ for me behind my back without my approval. The issue of potential conflict of interest seems to have been first raised with the

authorities (in the documentary record), albeit only generally, in Hugh’s letter to the

Commissioner for Children of 7 September 2000.713 He stated:

There are apparently at least two people sitting on the local Care and Protection Panel whom [sic] we believe have a major conflict of interest in this case at the expense of this family. Section 430 of the Act allows the Panel to regulate its own procedure. My deepest concern is that since the Panel is unanswerable to the public, personal agendas of Officers can, and do, obstruct the General Objects, Principles and Duties of the Act.

Hugh gave no more details at this time.

Maureen wrote to the Tainui Branch of the MWWL on 10 October about her

situation. 714 At this time, she stated that there were 4 adults (3 Maori and the

children’s lawyer) on the local CYFS Resource Panel who had a conflict of interest in

her case. She also wrote to CYFS asking for the names of the Care and Protection

Resource Panel members and this request was acknowledged on 17 October.715

A fortnight later, as discussed above Hugh and Maureen wrote to the manager of

the Legal Services Board, Rotorua, laying a formal complaint against Cathy Flynn in 712 Hugh Smith to Gerald McArthur, 8 December 2000. Doc 458. 713 Hugh Smith to Roger McClay, 8 September 2000. Doc 314. 714 Maureen Reti to MWWL, 10 October 2000. Doc 335A. 715 Garth Young to Maureen Reti, 17 October 2000. Doc 355.

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her role as counsel for the two children. 716 They pointed out that she was

simultaneously a member of the CYFS Paeroa Resource Panel with whom they had

been in conflict for eight months and that the Panel instructed the Police. She had,

they pointed out, opposed the judicial mediation that had resulted in the movement

towards returning the children to Maureen, and so they concluded that she was also

behind the refusal of CYFS to withdraw their complaint from the Police despite the

progress made in the Family Court, setting aside much of the substance of the CYFS

complaint.

In contradiction to what had apparently been the view of Page as CYFS

Tauranga’s solicitor, expressed to Maureen verbally on 21 November,717 Roger

Taylor, the Area Manager in the same Tauranga office, refused to tell her the names

of the members of the Resource Panel.718 Taylor had discussed the matter with the

panel’s chairman who had already declined to tell Maureen. Because of this, and on

considering ‘the case information before me’, he invoked s 18(h) of the Official

Information Act as enabling the withholding of information ‘when circumstances such

as those which currently exist, apply’. He ended the letter there, giving no indication

of what those circumstances might be or how they applied. Section 18(h) enables the

withholding when:

The request is frivolous or vexatious or that the information requested is trivial.

Taylor did not explain which of those three grounds he considered Maureen’s request

failed on, but given that the information sought was potentially relevant to many

aspects of the situa tion in which the Reti/Marriott whanau now found themselves in,

including criminal charges, rather more than a summary dismissal by the very agency

complained of should be required. There is, too, the question of whether identities of

public office holders, rather than ‘substantive’ information held on file, can be

withheld so readily.

716 Hugh Smith and Maureen Reti to Manager, Legal Services Board, Rotorua, 24 October 2000. Doc 362A. 717 Mentioned in Doc 427. 718 Roger Taylor to Maureen Reti, 22 November 2000. Doc 431.

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Issues Arising from CYFS’s Own Internal Guidelines

CYFS have a number of sets of internal guidelines intended to regulate their

own operations and showing how they view their own tasks. The Caregivers’

Handbook, developed in 1996, seemingly contained guidelines operative in 2000,

many of which have been prima facie breached by CYFS during the conduct of the

Service’s dealings with the Reti/Marriott whanau. Those intended to state Service

policy, practice and obligations, as opposed to those applying to caregivers, include,

inter alia:

• A care and protection family group conference (FGC) is a formal meeting for members of the family group/whanau/hapu/iwi to discuss with social workers what needs to be done to make sure a child or young person is safe and well cared for. Social workers and families work together to reach agreement on how to keep a child or young person safe. The FGC is a means of balancing children’s need and right to be safe with their need and right to be in a family. (p 1-5) [so on what basis can CYFS override this balance principle when the whanau is unanimous against continuing CYFS custody?]

• Section 39 place of safety warrant. This warrant is used if a child or young person ius at immediate risk and emergency action is needed. (p 1-6) [so how was Mark’s situation on 10 Feb 02 one of immediate risk or emergency?]

• CYPFS has a bicultural commitment and aims to provide services which are consistent with the Treaty of Waitangi, Puao-te-Ata-tu and Te Punga, as well as meeting legal and international requirements. (p 1-10)

• Social workers within the Service are expected to work competently with people of ethnic and cultural backgrounds other than their own. (p 1-10)

• CYPFS will provide adequate resources to meet the reasonable needs of any child or young person placed in care. (p 1-13)

• A social worker maintains a comprehensive overview of the child, consults and works with the child and with families to effect change and makes appropriate decisions that will meet the needs of the child. (p 2-2)

• A social worker also has the responsibility to: 1. Visit the child or young person and caregivers regularly 2. Work with natural parents to help effect change and on other issues

such as access, counselling, etc. 3. Support caregivers with the placement 4. Make appropriate referrals for the child for education, counselling,

therapy or specialists 5. Link caregivers to other supports or agencies if appropriate 6. Continually reassess the child and placement (p 2-2)

• The natural family or whanau have the right to: 1. Be fully informed of the child’s or young person’s progress 2. Be involved in decision-making

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3. Question decisions made by the social worker 4. Discuss with the social worker issues relating to the care of their

child or young person 5. Receive respect and courtesy from all parties, irrespective of the

reasons that a child or young person is in care (p 2-6) [!!! In how many of these was Maureen’s right consistently respected, as opposed to exclusion and punishment for doing just these things.]

• a child or young person in care has a right to 1. see, talk or write to family and advisers privately and at reasonable

times [and presumably implicitly a right for those advisers to respond meaningfully] (p 2-7)

2. be told of, and be involved in, any plans or decisions that affect their lives [as opposed to being ignored and excluded and having their mother being instructed to say nothing to them] (p 2-7)

3. be free from any physical punishment of any kind [unlike what apparently occurred at Tania Mapu’s] (p 2-7)

4. be free from any form of sexual or emotional harassment [ditto] (p 2-7)

5. complain [unlike Mark and Patricia’s pleas that were ignored,. Not responded to and held against the whanau] (p 2-7)

• children in our care should be able to tell us secrets that worry them, so we can reassure them and help them to trust their feelings. Our feedback lets them know they have been heard, and that we take them seriously (p 2-7) [so presumably CYFS accept that the converse would also be true, as happened here]

• children must be allowed ownership of their own bodies and to feel safe. Allow them to say no to touching that worries them, and teach them that this is one way to be safe [unlike medical examinations conducted without consent at CYRFS direction] (p 2-7)

• every child or young person for whom you are providing care is to have a separate bed. It is preferred that no child over the age of six sleeps in a bedroom occupied by any person of the opposite sex who is over six years of age [was this observed at Tania Mapu’s, from whom the children were allegedly taken only because of her personal clashes with Maureen?] (p 3-3)

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General Issues

While many issues have been raised in the course of the narrative, relating to

either or both specific documents and events or broader themes, some more general

issues arise, which often also tie in with the current statement of claim.

The initial uplifting of Mark was done without a Place of Safety warrant having

been issued, although the school principal had apparently refused to relinquish Mark

without one.

• What changed at 3pm on that day to shift him from his earlier position?

Specifically, did CYFS lead him to believe they did now have a warrant

although they did not show him one? Did they use some other argument

that plausibly circumvented the need for a warrant? Was he negligent

and were they deceitful?

• Did CYFS then (or do they now) have any blanket power that permits

them to act in emergencies to rescue children in immediate danger

although not having a warrant? The Police refusal to follow up

Maureen’s initial complaint suggests that this was the official line at the

time.

• Even if CYFS did have such emergency powers, knowing the facts (as

the principal did and as they did once having spoken to Maureen) were

they justified in applying those powers in uplifting Mark? Was there an

emergency and was he at immediate risk?

Was the immediate treatment of Mark (a) appropriate for a small boy who had

just been taken away from his mother and home, and (b) adequate to safeguard a

small boy who had allegedly been beaten in an abusive manner?

• No medical treatment was sought for him until his aunt took him to her

GP miles away the following day.

• The Police were called in only to photograph the injuries; there was not

sufficient severity to justify an immediate Police investigation.

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• Mark was placed in an admittedly (by the caregiver and implicitly by

CYFS) overcrowded, and soon physically and emotionally abusive,

environment

• No consideration was given immediately or later to his long-diagnosed

ADHD condition, the implication being that the CYFS workers from the

beginning superimposed their own judgment that that diagnosis was

wrong and that it all resulted from Maureen’s inadequate parenting, from

which they had removed him. What little provision was made was done

by the schools and SES, not CYFS, and usually with prodding from

Maureen. Subsequently, CYFS and Counsel for Child fought all the way

any reference to ADHD or attempts to gain treatment for it, as if it were

a point of principle ton them. Why should that have been so? Why—

other than a pre-determined opposition to anything that might justify the

discipline—would they have resisted finding out what was creating such

an obviously disturbed child? Was it not their positive duty to make such

enquiries with qualified practitioners and have the child in their care

treated appropriately? Instead they had and accepted wholly extremely

belated speculations based on incomplete assessments by Orr and

Calvert which seem more aimed at demonstrating problems with

Maureen than addressing Mark’s immediate needs.

• Problems arose for Mark in relation to Tania’s children but CYFS seem

not to have been concerned about Mark suffering violence at their

hands—to admit this would have been to admit that they were wrong in

having placed him there in the first place.

Was it fair and reasonable to construct a history of ‘escalating’ abuse in relation

to Maureen’s parenting from the handful of events spread over as Ms Matich did in

her early affidavits for the warrants?

• Whether or not the specific discipline on 9 February was appropriate etc,

in context that event was not part of any cycle. It was a specific,

calculated, negotiated ‘judicial’ act in response to a specific behaviour.

• Any history of which it was part should have taken into account Mark’s

behaviour, the attempts being made to treat his disorder, the severity of

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his misbehaviour in the home, the school and community, attempts being

made to deal with his misbehaviour prior to that one-off event,

alternatives available to Maureen (and Hugh) in the situation.

• The medical examination conducted by Dr Hilligan showed by

observation and blood tests that there was no evidence of any such

ongoing abuse, the day after Mark was uplifted. Yet Matich ploughed on

constructing her case for chronic and escalating abuse and conveniently

omitting this contradictory medical evidence from her affidavits and

reports to the court.

Was it fair and reasonable to apply the one-off disciplining of Mark to Patricia

in terms of convincing the court she was in such danger that she needed to be taken

into custody also?

• Prior to the custody order being applied for and Patricia being uplifted,

there was evidence from various adults and both children both tha t

Mark’s disciplining was not as bad as all that even in their eyes and that

it was indeed a one-off event. Arguments that Patricia was subject to the

same discipline simply did not wash.

• The weakness of the CYFS initial position regarding Patricia’s uplifting

is shown in the way in which Matich’s 15 February affidavit goes on

about Mark, and then just tags Patricia on the end, without making any

specific argument for Patricia to be included.

Were the terms under which the initial custody order were applied for really

valid in the case of either or both of the children?

• The wording indicates a situation of some peril is required, but in neither

case was there any immediate peril. Mark’s misbehaviour had been dealt

with and never had such a punishment been administered to Patricia, nor

did anyone suggest that she ever misbehaved in such a way as to give

cause for it to be done.

Was the way in which the uplifting of Patricia was conducted, even with the

warrant, fair and reasonable?

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• The school clearly did not think so and despite Matich’s later sworn

statement that there had been no complaint, there were verbal complaints

to CYFS Paeroa from the school principal and a written one from the

Board. They could not go behind the warrant in terms of commenting on

the reasons for uplifting Patricia, but they could and did criticise the

CYFS conduct in carrying it out without regard for the mother, the child,

or other professionals in whose care she was at the time (the school).

Was the immediate treatment of Patricia appropriate to a young girl being taken

away from her mother?

• The overcrowding situation had not been remedied (nor would it be

during this time) and yet she too was added to it.

• Was Patricia (or Mark) ever properly advised of the situation and

counselled for the trauma that it entailed for her. Apparently dumping

her on Tania was thought to be the extent of CYFS responsibilities other

than pursuing reasons for keeping them separated from Maureen.

If the basis for taking the children was really that they were in an abusive family

situation, why were they not then examined properly?

• Dr Clements’ examination, with all its problems, was conducted five

months after the alleged abuse. Any physical trauma would have had to

be pretty savage for it still to be in evidence after that period—and surely

therefore more than readily noticeable in February.

• Each of CYFS, Dr Clements and Det Macky gave different explanations

for why the exams were conducted. The CYFS one is the most

implausible, the other two hinting at searching regarding physical or

sexual abuse relating to the enema process, the only meaningful reason

for such examinations at that time.

• There is something unusual about the relationship between the Police

and CYFS over this. Det Macky claimed to have been responsible for

requesting the medical exams—was he even aware that Mark had been

examined on 11 February?—but he had never met either child at that

time and did not interview Mark until 3 days after the exams were

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arranged. This is a strong indication that CYFS were behind the Police

taking action at this time.

With CYFS being the guardians of the children, why did it not insist on their

legal representative having a part in their welfare for an entire six months?

• Presumably it is up to the Family Court, not CYFS, to hold counsel for

children accountable, nevertheless CYFS had a legal responsibility for

the children’s best interests and surely that included seeing that they

were properly represented. Seemingly Flynn deigned to become involved

only when the Family Court was making its first real attempt to resolve

matters with the mediation conference in September/October.

Why were not the unanimous wishes of the Family Group Conference respected

and implemented and immediate steps taken to return the children to Maureen’s care?

• Even to the extent that Tania Mapu’s vote here and her affidavits in

support of Maureen were they directly contradicted the hearsay from her

on which CYFS had acted initially and which they used later to further

criticise both Maureen and Hugh. This seems a case of selective use of

evidence (one of many).

• Why did CYFS continually report the FGC outcome as simply ‘non-

agreement’? Matich’s statement that it was merely non-agreement with

keeping the children in custody doesn’t sound ve ry professional in its

going against the plain meaning of the word and should have been

clarified at the first sign of confusion, which came immediately.

• Having clear awareness of the unanimous wishes of the FGC, on what

basis did CYFS then fail to implement those wishes? No-one ever seems

to have said; there is simply a passing reference at one point to CYFS

having the power to do so if it had good reason.

What evidence is there that CYFS were working to restore the Reti whanau unit,

reuniting the children with their mother? They seemed to do so only when obliged to

by the court. Otherwise every step seemed to be to keep Mark and Patricia away from

Maureen if they could.

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What were CYFS trying to do through all of this? Even if the initial uplifting of

Mark could have been justified, what were they seeking to achieve by also removing

Patricia and then not returning either of them over a period of months then years?

• The ‘care and protection’ argument runs thin both on the initial events

that caused the problem and then rapidly so after the FGC’s decision in

Maureen’s favour and then Judge Aubin’s mediation orders in

September effectively recognising there was no ongoing safety issue.

• Subsequently, during what might be called the ‘divestment phase’, from

early 2002 there appears a new readiness to dispose of the whanau from

the Service’s books e.g. Spicer’s 18 January report and Henwood’s 28

February affidavit. But the affidavit and CYFS evidence also endorsed

and presented to the court as CYFS’s evaluation and intentions the plan’s

proposals for ongoing support for Mark. Given that the Service agreed in

February 2002 that Mark required this and by proposing the plan was

undertaking to the court to supply it, it may be asked about the extent to

which CYFS has subsequently complied with even its own proposals.

Hugh’s advice is that it has met none of the support objectives in this

plan to this day. Given that actions speak louder than words, such a

failure undermines all the other protestations about acting in the

children’s best interests.

Associated with those two questions, what was the relationship between CYFS

and the Crown prosecutor in the criminal cases? Was the prosecution initially solely at

the instigation of the Police working alone? Did CYFS pressure the Police to take this

action?

• The timing of the Police intervention in mid-2000 is certainly suspicious,

especially in light of their inaction for five months.

• The CYFS staff appear to give direct aid to the criminal prosecutor in

ways that seem far removed from their presumed core business of

looking after the children’s welfare. That is quite apart from the

argument that positive harm was done to the children by the pursuit of

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the prosecution against their mother and Hugh and the resulting

prolonging of the family’s separation.

Why was there seemingly greater willingness by late 2000 and/or early 2001 to

allow Maureen greater access to the children, even unsupervised, while excluding

Hugh?

• The opinion advanced in several places, such as Coyle’s letter to

Maureen of 23 January 2001, was that Hugh was ‘an abuser’, or at least

suspected of being such, and therefore the children needed to be kept

safe from him.

• How does any such opinion square with any of the well-known facts at

all, beyond the one fact that it was Hugh who mostly wielded the cane on

9 February?

I note that Maureen and Hugh had figures in early 2001 that 95% of Maori

children and 75% of Pakeha children uplifted by CYFS were never returned to their

families before age 16 and that the average child uplifted by CYFS went through 10

foster homes before age 16.719 A CYFS response to the present claim might therefore

be that Maureen had little to complain about given that she did indeed get her children

back and they did not get passed around 10 or more homes!

To what extent were Maureen and Hugh simply dealt with poorly because they

proved ‘difficult customers’?

• It is clear in a number of places in these that there was much annoyance

in CYFS/C4C circles that Maureen and Hugh kept going outside the

narrow circle of the Family Court and a handful of lawyers to seek help

in their cause. It is, of course, the right of any New Zealand citizen to

make use of the full range of offices and institutions that have been made

available to them. The offices of Ombudsman, Privacy Commissioner,

Health Commissioner and such, or MPs and Cabinet Ministers, or other

community groups such as MWWL, or legislation such as the Official

Information Act, are available for anyone who wishes to approach them

719 Maureen Reti to MWWL, 9 February 2001. Doc 525.

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for their assistance. If they decide they cannot give it or to exercise it in a

particular way, that is one thing, but it is not for the department

complained of to object to a citizen taking up their right to seek that

assistance. It may be a nuisance, or embarrassing, or take up time, or be

inconvenient in many ways, but that is the way a reputedly open

democracy such as New Zealand is supposed to run. That is even more

so in principle when a private citizen is confronting a government

department with all its resources of time, money, people and sheer

statutory power. That right should be respected by the department

concerned, and their practices should be transparent and legal enough

that they should be unafraid of scrutiny by such watchdogs. It is to their

credit rather than discredit that Maureen and Hugh did continue to keep

doggedly trying to gain outside assistance and to CYFS discredit that so

frequently these bodies seem to have been brushed off with anodyne or

even misleading information so that they did not pursue the complaints.

What can be made of the attitudes and actions of Cathy Flynn, counsel for child,

in all of this, and in the present context what responsibility does CYFS bear for this?

• Especially in the later stages, e.g. from mid-2001, the role of Flynn

becomes greater relative to that of the CYFS social workers e.g. with the

guardianship application and associated manoeuvring.

• The difficulty in the present situation is in disentangling the role of Flynn

from that of CYFS; even if Flynn was indeed provably doing all that

Maureen and Hugh believe and allege, on what basis can responsibility

for this be sheeted home to CYFS? Is it possible to argue that, having

been alerted from earliest days to the conflict of interest at a minimum,

CYFS management should have intervened to ensure that Flynn did not

exert undue influence over its social work staff through either

membership of the Resource Panel or personal intervention at key

points? Prudent risk management would have seen that this was at least a

perceived weak link in their system and surely have acted to remove the

basis for that perception, regardless of how accurate the conflict

accusations were at first. The CYFS response was constantly to block

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access even to panel members’ names and stonewall over any

investigation let alone dealing with the criticism and allegations

themselves.

• One possible defence (should they ever feel obligated to take notice and

defend themselves) might be a lack of resources in the district required

her presence on the panel. But surely (a) this is inherently risky precisely

in a smallish district where the panel members are likely to have other

dealings with those CYFS works with, and thus systems should set up

Chinese walls at a minimum, while (b) as a matter of professional ethics

and responsibility the affected panel member should surely recuse

themselves from any situations in which they act in another capacity.

There is no indication in the present documentation that either of these

basic professional steps were taken or even considered.