A S v Family Court at Tauranga
[2025] NZHC 558
•18 March 2025
NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION,
PLEASE SEE https://www.justice.govt.nz/family/family-court/after-the-family- court/restrictions-on-publishing-information/
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE
CIV-2024-470-84
[2025] NZHC 558
UNDER the Judicial Review Procedure Act 2016 IN THE MATTER
of the Care of Children Act 2004
BETWEEN
A S
Applicant
AND
FAMILY COURT AT TAURANGA
First Respondent
L H
Second Respondent
Hearing: On the papers Counsel:
Applicant in person
K Laurenson and A Ghandour for First Respondent Second Respondent in person
A Brown as Amicus CuriaeJudgment:
18 March 2025
JUDGMENT OF WILKINSON-SMITH J
This judgment was delivered by me on 18/03/2025 at 3 pm Pursuant to Rule 11.5 of the High Court Rules
…………………………
Registrar/Deputy Registrar
A S v FAMILY COURT AT TAURANGA & ANOR [2025] NZHC 558 [18 March 2025]
Introduction
[1] The applicant, AS, is the father of a German minor (Young Person). The respondents are the Family Court at Tauranga and the mother of the Young Person.
[2] The proceedings relate to orders made in the Family Court at Tauranga permitting the mother to solely apply for a German passport for the Young Person under s 46R of the Care of Children Act 2004 (COCA). She is currently 17 years old and will turn 18 within a few months. The decision which is the subject of judicial review was made by her Honour Judge C L Cook on 22 April 2024 and resulted in a Family Court order sealed on 9 May 2024 that:
[the mother of the Young Person] is authorised to be the sole signatory on any passport application which is made for a German Passport on behalf of [the Young Person].
[3]AS applied for judicial review and raises three causes of action:
Procedural impropriety
[4] AS says his right to be heard was violated by the Family Court. He says that he did not receive any information about the hearing from the Family Court and by the time he became aware of the hearing, he was not available.
The decision was unreasonable
[5] The applicant says that the decision is unreasonable because the Family Court does not have the authority to make a decision to issue a German passport.
[6] AS says the issuance of a German passport is subject to the law of the Federal Republic of Germany and the authorities in New Zealand have no discretion in respect of that.
[7] AS says according to the law of the Federal Republic of Germany, he has sole custody of the Young Person and is therefore solely entitled to decide on the issue of the passport.
Unlawfulness
[8] AS says that the Family Court’s failure to comply with ss 4 and 5 of the COCA amounts to unlawfulness.
[9] AS says the Family Court was not aware of relevant facts including that if the Young Person travels to Germany she will be detained at any border of the European Union and the Schengen states. AS’s position is that the Young Person was kidnapped to New Zealand by her mother in 2015. Proceedings under the COCA for custody and contact were lodged in the Family Court on 28 September 2017. The result was an interim parenting order on 28 September 2017. An appeal was lodged on 29 September 2017. AS said there was never a hearing or further decision but there was a related decision in the Court of Appeal dated 22 November 2019 which AS relies on as supporting his position.
[10] AS says the mother wishes to apply for a passport for the Young Person for her own reasons and not in the interests of the Young Person. He says that the mother has been ordered to pay damages which will become enforceable in New Zealand and as a result the mother will not stay in New Zealand and needs a passport for the Young Person.
Orders sought
[11]AS seeks orders that:
(1)the oral judgment and order of the Family Court dated 22 April 2024 be “withdrawn”; and
(2)costs be awarded in his favour.
[12] On 9 July 2024 Muir J directed the Solicitor-General to appoint counsel to assist the Court pursuant to r 10.22 of the High Court Rules 2016. Amicus curiae Ms Toni Brown was appointed on 26 July 2024 and has provided submissions.
[13] The first respondent, the Family Court at Tauranga, filed an appearance abiding the decision of the High Court and reserving rights.
[14] The second respondent, the mother, also filed an appearance abiding the decision of the High Court and reserving rights.
Judicial review principles
[15] Section 143(3A) of COCA precludes any appeal being made to the High Court in relation to interlocutory proceedings under s 46R, such as the present application. However, it is commonly accepted that judicial review remains an available option to a party who does not otherwise have a right of appeal.1
[16]In Newton v Family Court, the Court of Appeal stated that:
Judicial review is, in principle, available in respect of an interlocutory decision made by a Family Court judge under COCA, where the judge has failed to exercise a statutory power in accordance with that Act. But such a decision will be set aside in judicial review proceedings only where such relief is consistent with the scheme of the legislation, including the carefully structured appeal rights set out in s 143 of COCA. Judicial review is intended to ensure fidelity to the statutory scheme, not to undermine it.
[17] Judicial review is not an opportunity to review the merits of a decision. It is an examination of the process by which the decision was made. An applicant on review must identify an error of law, failure to have regard to a relevant consideration or regard to an irrelevancy or procedural unfairness. The decision must be made with the benefit of adequate information.2 The decision must be one a reasonable decision- maker could reach based on the available information.3
1 Clare Barrett (ed) Child Law (online ed, Thomson Reuters) at [CC143.52].
2 O’Keeffe v New Plymouth District Council [2021] NZCA 55, [2022] NZRMA 105 at [30]–[31].
3 Sutton v Canterbury Regional Council [2015] NZHC 313, [2015] NZMRA 93 at [34] citing Petone Planning Action Group Inc v Hutt City Council HC Wellington CIV-2006-485-405, 10 October 2006 at [36].
Procedural impropriety
[18] In regard to AS’s claim that he was not afforded an opportunity to be heard, Ms Brown submits that it is clear that AS did indeed receive relevant emails to his address for service.
[19] The memorandum of Judge Cook dated 19 April 2024 addresses the issues relating to AS’s complaints in relation to service. Judge Cook expanded on the reasons for declining to adjourn the proceedings at the submissions only hearing on 22 April 2024 and set out the reasons for declining to adjourn the proceedings in the judgment. The interests of the Young Person required the matter to proceed.
[20] I reject the contention of procedural impropriety. I find on the balance of probabilities that AS was served and did have an opportunity to be heard, to which he did not avail himself of.
Unreasonable decision due to lack of authority of the Family Court
[21] As Ms Brown submits, the Young Person is now deemed to be habitually resident and indeed is residing in New Zealand following extensive proceedings between the parents. The mother is one of her legal guardians pursuant to s 17 of the COCA. AS is the other guardian.
[22] The mother’s application, relating to the provision of a passport for the Young Person, was made in reliance on s 46R of the COCA. Pursuant to s 46R(1), where there is a dispute between two of more guardians, any of them may apply to the court for its direction. In this case AS refused to permit or execute any application for a passport. The mother applied for a resolution of that dispute. Section 46R(4) permits the court to make any order relating to the matter that it thinks proper.
[23] In this case, the Family Court was not able to direct AS to sign the application for a passport because he is not within the jurisdiction of the New Zealand court and has remained in Germany throughout the proceedings.
[24] This has some parallels with ED v KG, where a father, who was a Greek national resident in New Zealand, was directed by the Court to take active steps to sign a passport application.4
[25]In that decision it was stated:
[7] In other circumstances the Court has not shrunk from making an order seen to be for the benefit of the child even where there is an international dimension and the enforceability of a Court’s direction may be in doubt. In Butler v Queen, Fogarty J made an order as to contact in relation to children who were resident with their mother in Ireland in a sequel to the oft-reported case of D v S.
[26] The issue in this case is the right of the mother to apply for a passport without the consent of the other guardian. It is not whether the German authorities will grant the mother’s application and issue a passport.
[27] The Family Court decision concerned only the right of the mother to apply for a passport without the agreement of the other guardian, it did not purport to direct the German authorities to issue a passport. I agree that the order was within the jurisdiction of the Family Court to make. The order simply permits the mother to apply for a passport. Whether it is enforceable by the German embassy is irrelevant to that issue.
[28] The decision itself is not unreasonable on the basis set out by AS. Nor does it appear to be unreasonable or unlawful on the basis of the requirements of the COCA.
Unlawfulness
[29] In the decision, Judge Cook referred to the Young Person’s welfare and best interests. The Young Person is at an age where she requires a form of identification for purposes such as opening a bank account, immigration purposes, medical and administrative reasons. She is resident in New Zealand and there is no alternative identification document she can apply for. Without such a document it is not clear that the Young Person can obtain an IRD number, she is not able to obtain a driver’s license and she is not able to work because she has no IRD number. She is not able to travel
4 ED v KG FC Wellington FAM-2008-085-000711, 1 February 2010.
internationally. She is currently studying German and there are opportunities for international travel which she cannot take up.
[30] The Young Person herself has expressed that she wants a passport issued in her name as she has no form of identification at present. She is limited in that she is unable to travel to see her grandparents. Her sister travelled to Germany and the Young Person was very sad that she was not able to accompany family on this trip. The Young Person expressed that she wishes to obtain a passport, citing that she has never done anything wrong and she is not a criminal.
[31] AS contends that the relevant order is not in the Young Person’s best interests as it will enable the mother to flee New Zealand with her to escape costs liability. As well as this AS says that the Young Person will be detained upon arrival at the European Union and Schengen states pursuant to a German alert. However, while it is an ingredient, whether it is in the interests of the Young Person to travel to Europe is not the only question. For the reasons outlined above, as stated by the Young Person herself, as she emerges into adulthood she needs a passport for reasons other than travel.
[32] I consider that the decision of the Family Court was reasonable and lawful and within the jurisdiction of the Court to make.
Result
[33]The application for judicial review is dismissed.
Costs
[34]If the parties are unable to agree on costs, I make the following directions:
(a)any application for costs is to be made by memorandum to be filed and served within 10 working days of the date of this judgment;
(b)any reply is to be filed and served by memorandum within a further
five working days; and
(c)memoranda as to costs are not to exceed two pages.
[35]Costs will be determined on the papers.
Wilkinson-Smith J
Solicitors/Counsel:
Crown Law, Wellington
Treadwell Gordon, Whanganui
Copies to Applicant
Second Respondent
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