AA v Family Court at Auckland
[2018] NZHC 1638
•4 July 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2018-404-000177
[2018] NZHC 1638
UNDER the Judicial Review Procedure Act 2016 IN THE MATTER
of a decision under the Care of Children Act 2004
BETWEEN
AA
First Applicant
BA
Second ApplicantAND
FAMILY COURT AT AUCKLAND
First Respondent
CD
Second Respondent
Hearing: 15 June 2018 Appearances:
D A T Chambers QC for First and Second Applicant M J McKillop for First Respondent
K N Crooks for Second Respondent
M J Hodge as Counsel Assisting the CourtJudgment:
4 July 2018
JUDGMENT OF COURTNEY J
This judgment was delivered by Justice Courtney on 4 July 2018 at 4.30 pm
pursuant to R 11.5 of the High Court Rules Registrar / Deputy Registrar Date……………………
AA & OR v FAMILY COURT AT AUCKLAND & OR [2018] NZHC 1638 [4 July 2018]
Introduction
[1] At a directions conference on 27 November 2017, Judge L de Jong made an order under s 133 of the Care of Children Act 2004 that psychological reports be obtained in respect of two children. Their father and step-mother, Mr and Mrs A, have applied for judicial review on the grounds that, first, the Judge pre-determined the decision and, secondly, he failed to take into account the mandatory relevant considerations as required by s 133(6) and (7).1
Relevant principles
Pre-determination
[2] Pre-determination is generally regarded as conceptually different from bias and the fair-minded lay observer test applicable to the latter as inapt; Joseph, for example considers that a challenge on the basis of pre-determination must generally show actual pre-determination rather than the appearance of such. 2 However, the cases usually cited in support of this approach involve administrative decision-makers.3 In cases involving judicial or quasi judicial decision-makers, the fair-minded lay observer test has been regarded as appropriate. In Wilson v Parole Board, for example, Mallon J took that approach in considering an assertion of pre-determination by the Parole Board.4
[3] The rationale for a differing approach can be discerned from the discussion in Taylor’s Judicial Review – A New Zealand Perspective.5 After describing bias in its various forms and referring to bias and closed minds, the author observes that:6
1 The Family Court at Auckland, which is the first respondent, and Mrs D, the second respondent, indicated that they would abide the decision of the Court and their counsel were excused from the hearing. In order to provide a contradictor, Mr Hodge accepted appointment as counsel assisting the Court.
2 Philip Joseph Constitutional and Administrative Law in New Zealand (4th ed, Brookers, Wellington, 2014) at [25.5.5].
3 For example, Back Country Helicopters Ltd v Minister of Conservation [2013] NZHC 982, [2013] NZAR 1474 at [138], citing Travis Holdings Ltd v Christchurch City Council [1993] 3 NZLR 32 (HC) at 4.
4 Wilson v New Zealand Parole Board HC Christchurch CIV-2010-409-2933, 20 May 2010 at [22]; See also Sisson v Canterbury District Law Society [2011] NZCA 55, [2011] NZAR 340 at [20]– [21].
5 Graham Taylor Judicial Review – A New Zealand Perspective (3rd ed, LexisNexis, Wellington 2014).
6 At 540 (citations omitted).
The various tests and their application in the preceding paragraphs relate to decision-makers in court-like environments. They do not apply to decision- makers in bureaucratic or administration-like environments. One commentator has used the expression that bias tends to be “built into” the latter situations. Such a decision-maker, even if required to act “independently” and in the context of a disagreement, is not acting in an adjudicative role and the case law applicable to judges or tribunals does not apply. The test for these decision-makers is that they not approach the decision with a closed mind. That a position put forward is rejected is not evidence of a closed mind, only that the position was rejected. To show a closed mind, much more needs to be shown: actual pre-determination as distinct from an appearance of pre- determination …
[4] Whilst there is clearly a distinction between apparent bias and pre- determination, where the decision-maker is a judge or has a quasi-judicial function, asking whether he or she would have appeared, to a fair-minded lay observer, to have pre-determined the matter is more appropriate than merely enquiring whether, as a matter of fact, that had happened.
Discretion under s 133
[5] The discretion under s 133 is subject to a statutory threshold; a judge can exercise the discretion to direct a psychological report “only if” the criteria specified by s 133(6) have been met. Relevantly, these include that:
(a)The court is satisfied that the information that the psychological report will provide is essential for the proper disposition of the application; and
(b)The court is satisfied that the psychological report is the best source of the information, having regard to the quality, timeliness, and cost of other sources.
[6] Further, even if the criteria under s 133(6) are met, s 133(7) nevertheless requires the court to have regard to the parties’ wishes before exercising the discretion.
Background to the directions conference
[7] The children are primary school age. Prior to 2016, their day-to-day care was shared between their mother, Ms C, and their father, Mr A. Since Ms C’s death in 2016, the children have lived exclusively with Mr A and his wife, Mrs A. Prior to their mother’s death the children had a good deal of contact with their grandmother, Mrs D. Since their mother’s death, however, there has been virtually no contact.
[8] Both children suffer from ADHD and anxiety. Following the loss of their mother, the children were under the care of a psychotherapist, Lorna Wood, and a paediatrician, Dr Warwick Smith. For approximately the last year they have been under Dr Smith’s care only.
[9] Mrs D made her application for a parenting order seeking contact with the children in June 2017. At counsel’s request, the application was referred to Judge de Jong because he had dealt with previous proceedings involving Mr A and Ms C. In his memorandum of 30 August 2017, the Judge flagged the possibility that a s 133 report might be required. He appointed lawyer for the children, Ms Cobcroft, who had acted in that role in the previous proceedings.
[10] On 1 September 2017 Mr and Mrs A filed affidavits in response to Mrs D’s application. They detailed their concern for the children and worries about the effect on the children of their having contact with Mrs D.
[11] Although Ms Cobcroft had been appointed in August 2017, the Family Court did not advise her of the appointment until 6 October 2017 and did not send her the relevant documentation until 9 October 2017, where it advised that her report was required by 16 October 2017. Ms Cobcroft filed her report on 17 October 2017. It recorded that she had spoken with Mrs D’s lawyer and had email correspondence with Mr and Mrs A. She had not yet interviewed the children. On this aspect, she said:
As a result of the concerns raised about the emotional wellbeing of the children I have not yet met with them.
I have asked the respondents’ (sic) to consider whether I could speak to the children’s therapist Lorna Wood about the best way to talk to the children. I consider that as a grief therapist she would be best placed to assist. I have not had about (sic) this response as yet.
…
I intend to await [Mr and Mrs A’s] views regarding a discussion with Lorna Wood for a further week. If there is no response or the response is in the negative I shall seek further directions from the Court.
The directions conference
[12] I have reviewed the transcript of the hearing and also listened to the audio recording of it. The hearing itself took about 15 minutes. A further approximately 10 minutes was spent while the Judge prepared his minute.
[13] At the outset, Ms Cobcroft advised that she had tried unsuccessfully to file her second report on Friday 24 November 2017 (presumably by email) and handed up her memorandum. There was a long pause during which I infer that the Judge read the memorandum, which, relevantly, said:
I have been unable to interview the children. On 31 October 2017 counsel was advised that the respondents were aware that the children would have to be interviewed and that they (Mr and Mrs A) could manage the ramifications. However, counsel was advised that [Mrs A] would be away between 7 – 24 November 2017 and asking (sic) if any interview could await her return. Counsel was invited to speak to Warwick Smith paediatrician if she wished to.
In deference to the fact [Mrs A] was overseas counsel waited until 22 November 2017 to propose an interview with the children on Friday 24 November 2017. I considered that the parties had had ample time to seek an appointment with me (which they did not) and to prepare the children for the fact they would be seeing me and talking about their maternal grandparents.
On 24 November 2017 counsel was advised that they and the children are now too busy with family events to attend an interview on either Friday or Saturday. [Mrs A] has raised questions about why the children have to be interviewed, how they would be interviewed and what was hoped to be achieved from an interview. Objections were also raised to the fact counsel has not spoken to Dr Smith and had not met with the respondents.
Consent was expressly declined to a suggestion counsel would see the children at school.
It is understood that neither [Mrs A nor Mr A] will be at the issues conference on Monday 27 November 2017 as a result of business commitments.
It is counsel’s view that the matter ought to proceed in any event as the proceedings have been unduly delayed to date and progress needs to be made.
…
Counsel seeks a direction that she is authorised to interview the children at school. Consideration should be given as to whether an interim hearing in this matter would be appropriate.
Consideration should be given at the issues conference as to whether a section 133 report is necessary …
(emphasis added)
[14] The Judge did not invite Ms Cobcroft to speak. Instead, he invited Ms Crooks, as the applicant’s counsel, to speak first. Ms Crooks had not filed a memorandum beforehand and did not hand one up on the day. It appears, however, that she had read Ms Cobcroft’s second memorandum because she said:
[Lawyer for the children] is also proposing that a section 133 report is appropriate here and my client is quite comfortable with that.
[15] As is apparent from the extract of Ms Cobcroft’s memorandum set out above, that statement did not accurately reflect the position; Ms Cobcroft had merely flagged that a s 133 report should be considered. The Judge made no comment about that fact. Rather, he asked Ms Crooks:
So, is it your client’s position that we wait for a section 133 report?
[16]Ms Crooks responded:
Very much depends on the position of the respondent, sir. At the moment from the affidavits they have filed they seem implacably opposed to contact. I would like to think that maybe with Ms Cobcroft able to meet with the children and have some discussions with them that they might soften their position. It’s going to be very difficult in the face of very strong opposition for any meaningful contact happen. I can’t – well it will be difficult. My client will take what she can get.
[17] The Judge then invited Ms Chambers to speak. She handed up a memorandum that explained the circumstances that had led to Ms Cobcroft not yet having seen the children and emphasised Mr and Mrs A’s concern about the potential effect on the children of being subjected to forensic questioning beyond what was necessary. Ms Chambers attached to her memorandum the letter from her to Ms Cobcroft dated 31 October 2017 to which Ms Cobcroft had referred. The letter made the following points:
(a)Lorna Wood had not seen the children for almost a year and so had no knowledge of their current state nor the implications of the medication on their anxiety, which were within Dr Smith’s area of expertise.
(b)Dr Smith was still seeing the children regularly and Ms Cobcroft was welcome to telephone Dr Smith directly.
(c)Mr and Mrs A accepted that Ms Cobcroft had to see the children and were willing to meet with Ms Cobcroft before she spoke to the children.
(d)Because Mrs A would be overseas from 7 November 2017 to 24 November 2017 and there was likely to be a reaction from the children to seeing Ms Cobcroft, it would be preferable if she saw them “after the 24th of November so that [Mrs A] was there to assist [Mr A] in dealing with any upset”.
[18]At the end of her memorandum Ms Chambers proposed that:
Ms Cobcroft to have contact with the children’s paediatrician, Dr Warwick Smith, and the respondents prior to seeing the children.
Ms Cobcroft to file her report within 21 days of today’s date, having seen the children.
There is no basis for Ms Cobcroft to see the children at school. The only reason the interview did not take place at the children’s home on 24 November 2017 was due to logistical issues.
Counsel to advise their client’s position in regard to whether a s 133 report is necessary after receipt of lawyer for the children’s report.
(emphasis added)
[19] It is doubtful that the Judge read Ms Chambers’ memorandum; there was no pause as there had been after Ms Cobcroft had handed up her memorandum. However, Ms Chambers then addressed these issues orally and concluded in relation to the possibility of s 133 report that:
… So, the directions I am seeking are at the bottom of my memorandum. That is that Ms Cobcroft have contact with the children’s paediatrician and the respondents prior to seeing the children and she files her report within 21 days of having seen the children and we have suggested she see the children at home.
…
And then in terms of section 133 report, my instructions are simply unclear at the moment and I am suggesting, Sir, that [Mr and Mrs A’s] position in regard to the section 133 report be advised to the Court after Ms Cobcroft’s report is in.
So [Mr and Mrs A] are very protective, they are very concerned about this litigation causing major problem in regard to these children who are obviously extremely vulnerable. So that is why, sir, I do not have clear instructions on a 133 report. I’ve got one parent saying yes and one parent not so sure. And I would like the opportunity to see Ms Cobcroft’s report and then advise the Court on the basis the issue of whether there’s a 133 report can be dealt with by Your Honour on the papers then before Christmas.
(emphasis added)
[20] The Judge did not respond to Ms Chambers. Instead, he addressed Ms Cobcroft:
So, Ms Cobcroft I am very concerned about what’s happening and I think we need a 133 report straightaway.
[21] Ms Cobcroft referred to the desirability of the children having a relationship with their maternal family but added that:
But if that issue is going to cause a high level of conflict between the parties and a high level of distress for the children, then I think that we need some expert advice about that.
and:
These proceedings were originally filed on 2nd of June and I originally wrote to the parties and My Friends to indicate that I would like to see them and that I was appointed and I would interview the children as early as 10 October. So I think there has been ample time for me to be able to see the children. I am quite content to speak with Dr Smith.
… I am happy to see [Mr and Mrs A] but again, as I have said in my report, they have had ample opportunity to contact me and come and see me about these issues.
and then:
So my view is that we should get a section 133 report going as soon as we can. I know that there are lengthy delays in even getting people appointed. The last report was done by Renuka Wali some years ago. So I think that it would be preferable if she was available again to assist and I can, if [Mr and Mrs A] will meet with me, file a report within 14 days.
[22]The Judge responded:
Well we are going to get the report anyway. The speed of your report matters little.
[23]After another brief exchange with Ms Cobcroft, the Judge said:
I intend to direct a psychological report. I think it is very essential in this case given the dynamics on both sides. And so I am going to direct the report and I think I’ll just reserve leave for you to file your memorandum and if we need to bring it back earlier then we can do that.
Although the transcript suggests that the Judge continued speaking without a break, the audio recording indicates a pause before he went on:
… In terms of the brief, probably we’re asking the psychologist to ascertain the children’s views about having a relationship with their maternal grandmother and identify what influences or external forces, if you like, are likely to have affected the children’s views. I’d be looking at the psychologist assessing the children’s relationship with each party, the relevance of that being the aftermath of losing their mother and how the children are affected by that and how that fits in with their relationships and the effect or likely effect on the children of having or not having a relationship with their maternal grandmother and the advantages and disadvantages for the children of the proposed contact options and then looking at what recommendations, if any, about therapeutic support or intervention. So I don’t know if anybody has any other thoughts about the terms of reference but I think they cover the main things.
[24] There was then a long pause, about 10 minutes, before the Judge could be heard either reading out or dictating a minute. It seems likely from the report provided by the Judge for this application, that he typed the minute himself. The minute was then provided to counsel. The Judge made only one order, namely that a s 133 report be obtained. He reserved leave to lawyer for the child to come back to the Court if necessary. In his minute, he said:
The evidence filed by both sides raises concerns for and about the children. The contents of lawyer for the child’s memorandum raises even more concerns especially in light of the fact the children’s lawyer has been unable to meet with the children. I note also that the step-mother was recently appointed an additional guardian by the Registrar on a without notice basis.
…
I am satisfied it is essential for the proper disposition of these proceedings that a s 133 psychological report is directed. The children do not have contact with the maternal side of their family. I plan to make further directions once the psychological report is to hand.
[25] The Judge did not refer to the brief for the s 133 report writer and, unlike the minute, there is no audio of the Judge reading that out. The brief is, however, attached to the minute and it seems likely that it was provided at the same time. The brief for the s 133 report writer directed her to assess:
(a)The children’s views about having a relationship with their maternal grandmother.
(b)Identify what, if any, influences/external pressures are likely to have affected the children’s views.
(c)The children’s relationship with each party.
(d)The effect or likely effect on the children of having, or not having, a relationship with their maternal grandmother.
(e)The advantages and disadvantages for the children of the proposed contact options.
(f)Make recommendations about what, if any, therapeutic support or intervention is required for this family.
Application for review
[26] The grounds of pre-determination and failing to take account of the mandatory considerations overlap and I deal with them together.
[27] Initially, the assertion of pre-determination was based on the suggestion that the Judge had come into the directions conference with a completed or substantially completed brief for a s 133 report. As argued, however, the application was advanced on the basis that the Judge had come to the decision with a closed mind and had not properly considered the submissions made to him on the issue of the s 133 report. For the reasons discussed earlier, I approach the question of pre-determination by reference to whether it would have appeared to a fair-minded lay observer that the Judge had pre-determined the issue.
[28] Two aspects of the hearing lead me to the conclusion that the Judge had reached his decision before hearing from counsel and did not properly consider counsel’s submissions. First, standing back and looking at the entire exchange between Judge and counsel, the following picture emerges. At the outset of the conference, no party was seeking a direction for a s 133 report. Lawyer for the children had merely flagged that a s 133 report should be considered. Mrs D had not sought a s 133 report, though Ms Crooks had indicated her acquiescence with the idea on the (incorrect) assumption that lawyer for the children had done so. Mr and Mrs A’s counsel had only sought to have a s 133 report considered after lawyer for the children had spoken to the children and reported.
[29] Having heard (but not responded to) Ms Chambers and without having heard from Ms Cobcroft at all on the issue, the Judge expressed the view that he was “very concerned about what’s happening” and considered that “we need a s 133 report straightaway”. These statements do suggest a view that had already been formed. It
was only after the Judge had made these statements that Ms Cobcroft said, contrary to her second memorandum (but understandably, given the Judge’s strong indication), that she also thought a section 133 report should be obtained.
[30] Secondly, having made it clear that he intended to order a s 133 report, the Judge paused for a short time and then gave a detailed, apparently extempore, description of the brief that would be required for the s 133 report. He did so without inviting any input from counsel. The relatively complex language of the brief he subsequently produced closely mirrored the oral description. I consider it more likely than not that the Judge had already prepared the brief and that his oral description reflected the brief, rather than the brief being prepared following the decision to make the order. In other words, I am satisfied that the brief to the s 133 report writer had already been prepared. That, in itself, does not indicate pre-determination. But coupled with the way the issue was dealt with in the course of the hearing, it would, in my view, have led a fair-minded lay observer to conclude that this was the case. I should add, out of caution, that this would have been my conclusion even under the higher test of whether, as a matter of fact, the issue had been pre-determined.
[31] A third factor provides additional support for my conclusion, as well as being the alternative ground for the application; the Judge’s failure to address the relevant mandatory considerations under s 133(6) and (7). Ms Chambers’ argument was essentially that, until lawyer for the child had spoken to both the children’s doctor and to the children themselves, it was premature to direct a s 133 report. Of particular concern in this case is that it was known to the Court, from the affidavits that had been filed by Mr and Mrs A and from Ms Chambers’ submission on the day, that the children were being treated for anxiety. Plainly, Dr Smith represented a significant, possibly even the best, source of information about the children and their current state of mind, taking into account the effect of their medication and their progress to date.
[32] In these circumstances, it is difficult to see how the Court could have been satisfied that a psychological report was essential for the proper disposition of the application without knowing what Dr Smith had to say. For example, Dr Smith’s input might indicate that it is not in the children’s best interests to be interviewed at this stage and that further time is desirable or that the brief for the psychological report
writer should be different to that directed by the Judge, or it might provide sufficient information to conclude that a report is not necessary. Either way, an important source of information existed and, until the Judge knew more about the information that Dr Smith had to offer, the statutory threshold was not met.
[33] Nor have the views of the children been taken into account in making the decision that a s 133 report was required, as required by s 133(7). The children are of an age where it would be usual to seek their views and incorporate those views into the decision-making process. That is a task that fell to lawyer for the children and could be obtained prior to a decision being made about a s 133 report.
Result
[34] The application is allowed. The order that a s 133 report be obtained is set aside and the matter remitted to the Family Court for further consideration.
P Courtney J
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